Raley's, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1978

236 N.L.R.B. 971 (N.L.R.B. 1978)

RALEY'S, INC.
Raley's Inc. and Retail Clerks Union, Local 588, Affi-
liated with Retail Clerks International Association,
AFL-CIO. Cases 20-CA-12229 and 20-RC-13645
June 16, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDA.E
On October 28, 1977, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and a supporting
brief, Respondent filed cross-exceptions and a sup-
porting brief, and the Charging Party filed a brief in
reply to Respondent's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Respondent conducted a series of three preelection
meetings on October 14, 1976,2 prior to the October
20 representation election.3 Approximately 10 office
employees, or roughly one-fourth of the unit, were
invited to and did attend each meeting. Respondent's
controller, Keith Tronson, presided over the meet-
ings and was assisted by Vice President James Teel.
The record indicates that this series of meetings was
the first time that these employees had met as a
group with management officials other than their im-
mediate supervisors. The format of all the meetings,
each lasting I to 1-1/2 hours, was in all important
respects identical. Tronson testified that he started
the meetings by informing the employees of the Oc-
tober 20 representation election and describing the
procedures involved. Thereafter, he explained in de-
tail Respondent's existing wages and fringe benefits
Respondent has excepted to certain credibility findings made hs the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 All dates are 1976 unless otherwise indicated.
A fourth meeting was held on October 15. However, no specific evidence
was presented regarding what occurred during this fourth meeting.
As a result of the election, a majority of employees cast ballots indicat-
ing they did not choose to be represented. The tally of ballots shows that of
approximately 45 eligible voters, 21 voted for representation by the Union
and 23 voted against. Two ballots were void
for the office employees, many of which were
brought to the attention of some employees for the
first time. In addition. Tronson announced that he
could make no promises or commitments because
the law precluded it. After these benefits had been
explained, Respondent's representatives invited
questions from the employees.
As detailed in the Administrative Law Judge's De-
cision, the questions covered a range of topics and
were not limited to matters covered in Tronson's
speech. The employees repeatedly complained about
their pay scales, the sick pay policy, asserted mis-
treatment by supervisors, and the absence of a policy
allowing for the transfer of central office employees
to Respondent's retail stores. At each meeting the
bulk of the time was spent answering such employee
inquiries. In responding to those complaints and
questions. Respondent reiterated the phrase that it
could make no promises with respect to the problems
the employees were raising. While accepting the
credibility resolutions made by the Administrative
Law Judge, specifically, that neither Tronson nor
Teel ever stated that the criticisms expressed by the
employees would be "looked into," the record, as
credited, clearly reveals that Respondent made addi-
tional statements at these meetings not wholly in ac-
cord with its disavowals of promises.
First, credited testimony indicates that Tronson,
upon learning of alleged abuses by a supervisor, be-
came upset and said he would "find out why" there
was a problem. Tronson himself testified that, at the
time, he informed the employees that they "could
come to us, and because we are the supervisors of
their supervisors that we had control over the, over
the supervisors. And that if they had a problem, we
would deal with it as best we could." Furthermore,
Tronson and Teel admitted that they stated to em-
ployees that Respondent "tried," "attempted." or
had the "intention" to be "competitive" in the wages
it paid. These statements were made in the meetings
with the employees in answer to employees' com-
plaints about wages, which was one of their principal
concerns. At the hearing, Respondent acknowledged
that its wages were not competitive.
In view of the foregoing, we conclude that the em-
ployees clearly were led to believe that the expressed
abuses would be remedied and that any future inci-
dents would be subject to the control of Tronson and
Teel. With respect to the responses concerning wages
Respondent's promise to remedy wage deficiencies to
the extent of making them competitive is patent, in-
deed. almost explicit.
Any doubt on this score is eliminated by state-
ments made by Teel and Tronson which are in direct
contradiction to a true "no promises" position. At
236 NLRB No. 97
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these meetings. Respondent announced an "open
door" to Tronson and Teel for the discussion of any
employee problems. Such access, which had not been
announced previously, was unknown to some or
most of the employees and therefore for them did not
exist in practice. IThe fact that some employees had
in the past taken the initiative to discuss grievances
with Tronson and Teel does not indicate otherwise.
This announcement of a new or expanded avenue of
access constitutes not merely a promise of an addi-
tional benefit, but rather its implementation.
As this Board has previously held,4 the structure of
such preelection meetings provides a "compelling in-
ference" that the employer by its conduct at such
meetings impliedly promises that the grievances
raised would be corrected. Were we to conclude that
Respondent, by merely reciting a "no promises" for-
mula, had clearly discharged its duty to avoid giving
the employees the impression that their complaints
would be remedied,' we would be forced to conclude
that the parties at these meetings were engaged in a
largely meaningless exchange concerning the em-
ployees' grievances and complaints. However, it is
apparent that the reason for their voicing such com-
plaints was the hope that they might be remedied.
Clearly, as reflected in the Administrative Law
Judge's Decision, the adamancy with which the em-
ployees continued to express their grievances and
Respondent continued to entertain them, despite
such formalized disavowals by Respondent that any
changes would ensue, sufficiently indicates that such
disavowals were not tendered or taken at face value.
Thus, we conclude that Respondent's oft-repeated
stock phrase of "no promises" was a mere formality.
serving only as an all-too-transparent gloss on what
is otherwise a clearly implied promise of benefit.
In view of the above. we find that Respondent
coerced employees in violation of Section 8(a)(1) of
the Act by its solicitation of employee grievances and
its implied promises to remedy them. It follows that
such conduct interfered with the employees' freedom
of choice in the election and we shall set aside the
results of the first election.
In addition, as one of the grievances raised by the
employees at all of the meetings held on October 14
concerned the need for restructuring and increase in
their pay scales, it is apparent that Respondent im-
pliedly promised that it would correct this source of
discontent. In fact, the record reveals that this was by
4Reliance Electric (omparnv, Madi.son Plant Mechanical Drives Division.
191 NLRB 44, 46 (1971).
' Member Jenkins finds that the inference of implied benefits stemming
from such preelection meetings is irrebuttable, and that in any case Respon-
dent's "no promises" sloganeering does not provide Respondent with a de-
fense to such violative conduct. (Compare his dissent in Uarco Incorporated.
216 NLRB 1. 3 (1974).
no means a hollow promise on the part of Respon-
dent. The evidence indicates that it has generally
been Respondent's policy to readjust the wages of
employees who are to receive increases in the middle
and at the end of the calendar year. However, on
October 22, Respondent announced that it was refor-
mulating its pay scales and that the raises to be an-
nounced in the near future would be made retroac-
tive to a period within a week of the election. In the
announcement, Tronson invited the employees to
submit to him information which would aid him in
evaluating current wage levels. When the wage ad-
justments were announced on November 12, practi-
cally every employee received a wage increase, which
for most of the employees exceeded 20 percent of
their previous income. Prior increases had been
somewhat more modest in amount and were never
given to more than approximately half of the em-
ployees.
Respondent attempted to explain the size and the
scope of this increase on the basis of two factors.
First, when the previous June 1976 wage increase
had been given, the person responsible for imple-
menting the increase had improperly utilized an area
wage survey compiled by an employers' association,
and had consequently pegged the raises to the infor-
mation compiled regarding the lower wage ranges for
the "general" employee category, as opposed to the
intended midrange wage of the "skilled" employee
category. Second, it had become apparent that the
existing wages did not reflect employee seniority and
that some newer employees were earning sums in ex-
cess of the wages of more senior employees similarly
situated. This was the first time seniority had been
taken into account in determining employees' wage
levels. According to Tronson, he decided not to wait
until December, when wages would ordinarily have
been adjusted, because he had decided that Respon-
dent had conducted a "clean campaign" and could
now grant immediate increases, as it wished to elimi-
nate as soon as possible the effects of previous errors
made regarding wage adjustments.
However, Respondent's explanation is insufficient
independent justification, and we find that it is ines-
capable that the raises were intended to serve as a
reward to the employees for their rejection of union
representation.6 The fact that the raises were tailored
to eliminate inequities resulting from the previously
unstructured system does not provide such "legiti-
mate business justification" as to make the raises
proper. It appears that the raises cannot be fully just-
ified as merely an attempt to correct improperly im-
plemented wage adjustments made during the previ-
ous summer and the Administrative Law Judge
6 Westminisler (ommuni5y Hospital. Inc., 221 NLRB 185 (1975).
972
RALEY'S, INC
noted that he did not rely on this rationale. Specifi-
cally, the evidence fails to show that seniority was
ever intended to be a factor in computing the wage
adjustments at that time. This deficiency was first
noted during the employee meetings just prior to the
representation election. Rather than exonerating Re-
spondent from a finding of an 8(a)(1) and (5) viola-
tion because this grievance had some basis in fact,
these raises conveniently served the double purpose
of eliminating wage inequalities in fulfillment of the
implied promise of benefit made at the meetings as
well as rewarding employees for their rejection of the
Union. As such, Respondent violated the Act in this
regard.
CONCLUSIONS OF LAW
1. The Respondent, Raley's, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks Union, Local 588, affiliated with
Retail Clerks International Association, AFL CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent, on October 14 and 15, solicited
grievances from employees concerning their working
conditions in order to discourage them from joining
or supporting the Union or designating or selecting
the Union as their collective-bargaining representa-
tive, and on those dates did promise employees im-
proved wages or other benefits if the employees vot-
ed against union representation, and therefore
violated Section 8(a)(l) of the Act.
4. Respondent, on or after October 26, changed
the wage structure of its central office employees in
order to reward them for having voted against union
representation and therefore violated Section 8(a)(l)
and (5) and Section 2(6) and (7) of the Act.
5. By its conduct, as set forth above, Respondent
has interfered with its employees' freedom of choice
in selecting a bargaining representative, and such
conduct warrants setting aside the election conduct-
ed on October 20 in Case 20-RC-13645.
REMEDY
Under the facts of this case, it is clear that the
violations of the Act committed by Respondent
served to undermine the majority status of the Union
which it had achieved prior to the election.7 Since the
improper solicitation of grievances requires that the
first election be set aside, we must further determine
7 The Administrative L aw Judge found that, as of Jul, 12. the I nion had
obtained, on authorization cards, the valid signatures of () emplo'ees
majority of those within the unit
whether Respondent's conduct has rendered doubt-
ful or impossible the holding of a free and fair rerun
election. In these circumstances, it appears that Re-
spondent became fully apprised of its employees'
motivation in seeking the assistance of a collective
representative through its solicitation of grievances.
As a result of its conduct during the preelection
meetings and its grant of postelection wage increases.
which we have found were in violation of the Act,
Respondent attempted to extirpate the source of the
employees' interest in collective representation. Spe-
cifically, Respondent in effect assured its employees
that an, abusive conduct by supervisors would not
reoccur: that they could freely communicate employ-
ment-related problems to Respondent: and that
through the postelection wage increase they were lib-
erally rewarded for their rejection of union represen-
tation. In the face of such substantially changed
terms of employment, particularly considering the
scope and size of the wage increases, we conclude
that the effects of such misconduct would carry over
into a rerun election and improperly affect its results.
Accordingly, we find that a bargaining order is ap-
propriate in this situation 8 as the only effective rem-
edy for Respondent's unlawful conduct.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended. the National Labor Re-
lations Board hereby orders that the Respondent,
Ralev's, Inc., Sacramento. California, its officers.
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Conducting meetings with groups of its em-
ployees for the purpose of hearing and adjusting em-
ployee grievances or complaints and explicitly or im-
pliedly promising them economic benefits or
improved working conditions in order to interfere
with their choice of a bargaining representative, or as
an inducement to reject and refrain from activities in
support of Retail Clerks UInion, I.ocal 588, affiliated
with Retail Clerks International Association, AFL
CIO, or ans other labor organization.
(b) Granting wage increases to its employees in
order to induce them to reject the Union as their
collective-bargaining representative. but without
prejudice to any wage increase or other economic
betterments heretofore granted.
(c) In an' like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which is
)o..' ... y,i 4A ,. n . 225 Ni RB 806 (1970) I1 :Itrn,nm,er ( r.milni, l
Io'Potal. Ir, ,q'r, R ;, l [s,,uni.,l. F io>udr;. In, . 208 Ni RB 102 (1974).
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain collec-
tively with Retail Clerks Union, Local 588, affiliated
with Retail Clerks International Association, AFL-
CIO, as the exclusive bargaining representative of the
employees in the following appropriate unit, and,
upon request, embody in a signed agreement any un-
derstanding reached:
All full-time and regular part-time accounting
office clerical employees, general office clerical
employees and advertising department employ-
ees of Raley's, Inc., at its 1515 20th Street facil-
ity in Sacramento, California; excluding all
other employees, guards and supervisors as de-
fined in the Act.
(b) Post at its Sacramento, California, facility cop-
ies of the attached notice marked "Appendix." 9 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 20. after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the election held on
October 20 among Respondent's employees be set
aside, and that the petition in Case 20-RC-13645 be,
and it hereby is, dismissed.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading"Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NoT ICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wlt . NOT conduct meetings with groups of
our employees for the purpose of hearing and
adjusting their grievances or complaints, and di-
rectly or impliedly promising them benefits or
improved working conditions, in order to dis-
courage our employees from voting, joining, or
supporting Retail Clerks Union, Local 588, affi-
liated with Retail Clerks International Associa-
tion, AFL-CIO, or any other union.
WE WILL NOT grant to our employees wage in-
creases in order to induce them to reject the
above-named Union, or any other labor organi-
zation whom they select as their collective-bar-
gaining representative, but without prejudice to
any wage increases or other economic better-
ments heretofore granted.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their organizational rights
guaranteed under the National Labor Relations
Act, as amended.
WE WILL, upon request, recongize and bargain
collectively with the above-named Union as the
exclusive bargaining representative of the em-
ployees in the following appropriate unit, and,
upon request, embody in a signed agreement
any understanding reached:
All full-time and regular part-time accounting
office clerical employees, general office cleri-
cal employees and advertising department
employees of Raley's, Inc., at its 1515 20th
Street facility in Sacramento, California; ex-
cluding all other employees, guards and sup-
ervisors as defined in the Act.
RALEY'S, INC.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This case
was heard before me on May 17, 18, and 25, 1977, at Sacra-
mento, California, pursuant to a complaint in Case 20-
CA-12229 issued by the Acting Regional Director for Re-
gion 20 of the National Labor Relations Board on January
31, 1977. The complaint is based upon a charge filed by
Retail Clerks Union, Local 588, affiliated with Retail
Clerks International Association, AFL-CIO (herein called
the Union), on December 6, 1976.' The complaint against
Raley's, Inc. (herein called Respondent) alleges that it has
engaged in certain violations of Section 8(a)(l) and (5) of
the National Labor Relations Act, as amended.
On July 14, the Union filed a petition in Case 20-RC-
13645 seeking a representation election among certain of
Respondent's central office employees in Sacramento. Af-
ter a hearing, the Regional Director issued a Decision and
Direction of Election in an appropriate unit. The election
was held on October 20. The tally of ballots issued on that
date shows that, of approximately 45 eligible voters, 21
voted for representation by the Union and 23 voted
i Hereinafter all dates are 1976 unless otherwise noted.
974
RALEY'S, INC.
against. Two ballots were void. Thereafter, on October 26,
the Union filed 13 objections to conduct affecting the out-
come of the election; and, on December 21, the Acting
Regional Director issued a supplemental decision, followed
by a second supplemental decision on December 28, in
which he overruled 10 of those objections, but ordered a
hearing on the remaining 3. These three, in substance, al-
lege that Respondent interfered with the outcome of the
election by (1) dealing directly with employees in soliciting
their grievances and advising them to take their problems
directly to the Employer, thereby impliedly promising that
grievances and problems would be resolved, and (2) im-
pliedly promising employees that pay or other benefits
would be improved in the event that they voted against
union representation. On January 31, 1977, the Acting Re-
gional Director ordered the complaint and objections con-
solidated as they involved a single controversy.
Issues
The principal issue is whether or not Respondent, prior
to the October 20 election at a series of meetings held on
October 14 and 15 with voting unit employees, committed
unfair labor practices by making implied promises of bene-
fits and soliciting grievances. Assuming that there is suffi-
cient proof to sustain those allegations, I must determine
whether or not a bargaining order should issue based upon
those violations. If I determine that those violations are
insufficient to warrant a bargaining order, I then must de-
termine whether or not the wage increase given after the
election also constitutes an unfair labor practice and, if so,
whether or not a fair second election can be held or wheth-
er a bargaining order should issue. In the event that I con-
clude there is insufficient evidence of preelection unfair
labor practices, I must nonetheless determine whether or
not the postelection wage increase constituted an unfair
labor practice and, if so, whether the remedial order should
include a directive setting aside the election and ordering
Respondent to bargain with the Union.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of all
parties.
Upon the entire record 2 of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FA(T
I. THE BUSINESS OF THE EMPLOYER
Respondent admits, and I find, that at all material times
it has been a California corporation with its corporate
headquarters in Sacramento, California, where it is en-
2 In reviewing the exhibit folders, I noticed a number of defects including
the fact that no exhibit bears the court reporter's official stamp, which is
used as a tool for indexing as well as to show the document to be the one
actually offered. The lack of indexing resulted in several errors which the
parties subsequently agreed to correct.
gaged in the retail sale and distribution of food products
and general merchandise. During the past calendar year,
its gross sales exceeded $500,000, and it purchased goods
valued in excess of $50,000 directly from suppliers located
outside the State of California. Accordingly, it admits, and
I find, that at all times material herein it has been an em-
ployer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is, and
has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
Ill THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a chain of drug stores and super-
markets. It has approximately 25 stores in California and
15 stores in Nevada. Some of its stores are freestanding
drugstores and some are freestanding supermarkets. It also
operates combination stores. It has collective-bargaining
relationships with several locals of the Retail Clerks Inter-
national Association, AFL-CIO, including the Charging
Party for its Sacramento area stores. Respondent also has
contracts with other local unions, including locals of the
Teamsters Union, the Meat Cutters Union, and an inde-
pendent union known as the Independent Drug Clerks As-
sociation. Except for its Winnemucca and Carson City,
Nevada, stores, all of Respondent's retail outlets are orga-
nized. Respondent has recognized the Union for its Sacra-
mento area retail store employees since sometime in the
1940's.
Respondent's corporate headquarters is located in a 70-
year old building at 1515 20th Street in Sacramento. Locat-
ed at that office are the corporate offices, the advertising
and print shop departments, as well as all functions includ-
ed under the accounting department. It is this facility
which is involved herein.
Respondent is owned by Tom Raley, although the rec-
ord does not show his corporate title. Its president is
Charles Collings, its vice president in charge of operations
is James Teel (his duties include labor relations responsibil-
ities), and its controller is Keith Tronson. In addition. its
personnel department is headed by a Mr. Gilmore. The
chief accountant and thus principal supervisor of the office
clericals is Tom Cobb, who is assisted by the office manag-
er Helen Greenlaw. According to Tronson, Cobb reports to
him, while (ilmore reports to both Tronson and Teel de-
pending on the nature of Gilmore's business.
B. Existing Practices
Before the Union began organizing Respondent's office
employees on July 12, Respondent had several practices
and policies in effect which are involved to some extent in
this matter. It normnally gave semiannual wage increases,
one increase coming in the middle and the other at the end
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of each year. It had a health insurance plan together with
vision and dental supplements. It had a retirement plan,
for which employees became eligible after a certain num-
ber of years. It also had a plan under which employees who
were sick were not immediately paid for the days on which
they were sick but were paid for those days in a lump sum
prior to Christmas of each year. In addition, Respondent
had an unannounced "open door" practice whereby rank-
and-file employees who had matters to discuss with higher
management could do so. Other policies or practices men-
tioned in this case included Respondent's policy pro-
hibiting office employees from transferring to retail stores,
its practice of permitting its office employees "summer
hours," and whether or not it promised to fix the air-condi-
tioning.
The latter two subjects, summer hours and air-condition-
ing, are not really involved in the case, although witnesses
were asked questions about them. There is no claim that
Respondent made any threat or promise with regard to
summer hours, and the parties agreed that the matter of
air-conditioning was too trivial to be pursued, particularly
since the problem affected everybody in the building, was
chronic, and was apparently insoluble. Those two subjects,
therefore, will not be discussed further.
C. The Union's Card Majority
The General Counsel and the Union are seeking a bar-
gaining order to remedy the unfair labor practices they
believe Respondent has committed. As will be seen, I find
that Respondent has committed no unfair labor practices
and accordingly have recommended dismissal of the com-
plaint. Nonetheless, I recognize that a reviewing authority
may disagree with my conclusions. Accordingly, I shall de-
cide the question of whether or not the Union had attained
tentative majority status prior to the commission of the
acts alleged to be unfair labor practices. If my conclusions
with regard to the unfair labor practices are sustained, the
findings with regard to the Union's card majority will be
superfluous; if not, they will serve to avoid a remand on
that issue. The facts and my conclusions regarding the
Union's card majority follow.
In mid-July, Chief Accountant Cobb held a so-called
"pep talk" among his office personnel. These employees
became angered by the tone of the pep talk and shortly
thereafter arranged a meeting with the Union's business
agent, Willie Drain, and his assistant, Bryson Hiding. The
meeting was held after work at a nearby bar, Lord
Beaverbrook's Cocktail Lounge. During the course of that
meeting, which lasted between an hour and an hour and a
half, 24 employees signed applications for union member-
ship. The parties submitted a joint exhibit showing that as
of July 13 the unit consisted of 46 employees. Thus, on July
12, the Union had obtained the signatures of a majority (by
one) of Respondent's unit employees on application forms
which contained language designating the Union as their
collective-bargaining representative. Between July 15 and
October 12, the Union obtained the signatures of six more
unit employees. The designation of representative language
on the forms is unambiguous and clearly may be used for
the dual purpose of a recognition demand or a petition for
an election.
Respondent does not contest these facts but contends
the cards were obtained by misrepresentation. In support
of this argument, it points to two unchallenged facts. First,
nearly every witness, except Union Business Agent Drain,
testified that Drain said the cards were for "information
purposes." Many employees also testified that Drain said
signing the cards created "no obligation." Second, Respon-
dent observes that the print size of the designation lan-
guage which appears on the membership application form
is minuscule, being so small as to be nearly illegible. More-
over, Respondent notes that the union officials also had
the employees sign a second document entitled "Informa-
tive Report and Assignment of Respresentative." This doc-
ument also contained authorization language, though in
somewhat larger type. Respondent questions the need for
the second document and urges that the Union was engag-
ing in a certain amount of "flim-flam" by requiring signa-
tures on both documents particularly where the authoriza-
tion language on one of the documents was nearly
unreadable, and the second document, despite the second
half of its title, appears to be for another purpose.
So far as I am aware, however, none of these considera-
tions affects the validity of the cards. Cases are legion, of
course, to the effect that a card majority is invalid where
the cards are obtained by the misrepresentation that they
are to be used "solely" for the purpose of an election.
N.L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575,
584 (1969); Cumberland Shoe Corporation, 14 NLRB 1268
(1963); Levi Strauss & Co., 172 NLRB 732 (1968). Despite
occasional language to the contrary, undoubtedly other
forms of misrepresentation could occur justifying invalida-
tion of the cards and thereby causing loss of what other-
wise would be majority status. However, I do not believe a
union official's statement that the cards were for "informa-
tion purposes" is a sufficient misrepresentation to warrant
invalidating the designations of representative. All but one
of the signers executed the "Application for Membership,"
and I seriously question whether any employee could have
been misled about the purpose of a document with that
title. The employee who did not (Rhonda Henas) signed an
unambiguous dual-purpose authorization card at a later
date, and there is no evidence of misrepresentation as to
her. The Board has held that signing cards entitled "Appli-
cation for Membership" is sufficient to warrant the conclu-
sion that the employee knew what he was signing. Sco-
ler's, Incorporated, 192 NLRB 248 (1971), enfd. 466 F.2d
1289 (C.A. 2, 1972). In addition, the Board has held the
cards are not invalidated because the card solicitor said
that signing them created "no obligation." Fort Smith Out-
erwear, Inc., and H. L. Friedlen Company, 205 NLRB 592
(1973) 3 (Member Kennedy dissenting), citing Wallace
Metal Products, Inc., 199 NLRB 819 (1973). Thus, I do not
find the signatures were obtained by misrepresentation as
to the purpose of the document.
Also, I find no merit to Respondent's objection to the
Union's use of fine print in the designation language. I find
that it is sufficiently legible. No employee claimed the print
Enfd in part remanded in part 499 F.2d 223 (C.A. 8, 1974).
976
RALEY'S. INC.
was too small and apparently none had difficulty reading
it. Accordingly, I reject Respondent's contention that the
cards are invalid for that purpose.
Finally, with regard to the Union's alleged "flim-flam"
technique of obtaining signatures, I conclude Respondent's
contention here must likewise be rejected. I confess to a
certain amount of concern about the possibility of deceit in
obtaining the signatures in these circumstances. Certainly,
the designation of representative language in the "Informa-
tive Report and Assignment of Representative" is unneces-
sary for the purpose of obtaining the other information
called for in the document and which Drain said the Union
needed. It seems to me the second document had no pur-
pose except to obtain the signatures of employees who re-
fused to sign the "Application for Membership." I think
that obtaining signatures in this manner is a sharp practice
requiring close scrutiny. Nonetheless, as all but two 4 of the
signers signed both documents, I find there is no likelihood
that any employee's signature was actually obtained by de-
ceit. I conclude therefore that, as of July 12, the Union had
obtained the valid signatures of a majority of the employ-
ees in the unit.
D. The Union's Demandfor a Card Check and
Negotiations
Immediately after having obtained the 24 cards on July
12, Union President Ralph D. Williams wrote Respon-
dent's vice president, Teel, a letter advising him that a ma-
jority of Respondent's office employees at its central office
had designated the Union as their exclusive bargaining
representative. Williams offered to prove majority status
by submitting the authorization cards to an impartial per-
son suggesting a meeting 2 days hence. He went on to re-
quest negotiations.
Teel turned the letter over to Respondent's attorney,
Patrick W. Jordan, who replied by letter on July 15 advis-
ing the Union that he represented Respondent and asking
that future communications be directed to him. He further
advised Williams that Respondent declined to participate
in a card check and declined to recognize the Union "until
such time as Local 588 is certified by the National Labor
Relations Board as the collective-bargaining representative
in an appropriate unit."
As noted above, the Union had already, on July 14. filed
with the Board's San Francisco office its petition for an
election in that unit. Following a hearing and a direction of
election, an election was scheduled for October 20. Neither
the Charging Party nor the General Counsel contends that
Respondent engaged in any improper activity between July
12, when the cards were first obtained, and the October
14-15 preelection meetings.
E. The October 14-15 Meetings
On October 14, Controller Tronson and Vice President
Teel conducted three meetings with groups of approxi-
mately 10 voting unit employees. On October 15, they held
4Jeanette Richardson signed only the application for membership. and,
as previously noted, Henas signed a traditional authorization card.
the fourth and last meeting. However, employee witnesses
were called only with regard to the three meetings which
took place on October 14. The General Counsel called two
employees. Alene DeRaps and Patricia Dorge, to testify
about the first meeting which began at approximately
10:30 a.m. Respondent called employees Sunny Fuller and
Joyce Martinez to testify about that meeting as well. The
General Counsel called no one to testify about the second
meeting which began at I p.m. Respondent, however,
called three employees, Deborah England. Yvonne Morris,
and Janice March, to testify about the second meeting. The
General Counsel called two employees., Jennifer Muschetto
and Carol Huddleston, to testify about the third meeting
which began at approximately 3:30 p.m.; Respondent
called employee Edward Entrican. Respondent also called
Controller Tronson and Vice President Teel who testified
about their conduct at all four meetings.
1. Meeting I
Tronson testified that the first group of employees select-
ed were the "most outspoken" employees in the voting
unit. He says they were selected because he believed it was
a good idea to speak to them first in order to reduce the
likelihood of someone mischaracterizing the rumors which
he was sure would follow. My observation of DeRaps,
Dorge. Fuller, and Martinez is consistent with his view. All
four are outspoken and all four, to varying extents, tended
to permit their feelings to edit their recollections. I hasten
to add that I do not believe that any of them were telling
deliberate untruths; rather, it is a question of who could
recall the meeting objectively best.
Tronson testified he opened the first meeting by advising
the employees that the NLRB had scheduled the election
for October 20. He explained the mechanics of the election.
He then launched into an explanation of existing benefits
prefacing his remarks by saying neither he nor Teel could
make promises or commitments to the employees as they
were precluded by law from doing so. He then described
the existing fringe benefit plans including the pension plan
and the hospitalization plan together with its vision and
dental coverages. After that he opened the meeting for
questions.
At this point the testimony begins to diverge. Both De-
Raps and Dorge agree that during the entire meeting Tron-
son said neither he nor Teel could make promises or com-
mitments: indeed, Dorge testified they made such a
statement at least 10 times. Nonetheless. both testified that,
when employees asserted that the pay scales were inade-
quate and inequitable, Teel said although he could promise
nothing he would "look into it." DeRaps testified Tronson
said that he was already looking into it and had been look-
ing in the newspapers. She says Tronson agreed with the
employees conceding. "You are a little below par." Dorge's
testimony is similar. She testified Tronson said he would
take complaints under advisement. However, slightly con-
trary to DeRaps. she testified Tronson said employees
should check the newspapers to see what kind of wages
competing employers offered saying he had done so and
believed the Company was "on a par." She also recalls him
saving he could "not guarantee anything."
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Fuller and Martinez agree that Tronson prefaced
each of his discussions with a phrase to the effect that he
could make no promises. Unlike DeRaps and Forge, how-
ever, they both testified Tronson did not say he would
"look into" things. They also deny Tronson said anything
to the effect that he was in the process of checking into
wage matters or conducting a wage survey. Martinez re-
called Tronson said Respondent's pay scale was some-
where "in the middle," and employees could check the
newspaper want ads if they wished to compare wages.
Fuller recalls she complained to Tronson that current sal-
ary levels were impossible to live on, and he responded by
saying he couldn't make promises on salaries. She agrees
with Martinez that Tronson said nothing about wage sur-
veys but does not believe either Teel or Tronson mentioned
looking in the newspaper.
Both Teel and Tronson deny they in any way offered to
review the pay scales. They did admit they suggested em-
ployees look in the newspaper to see if Respondent's wages
were competitive. Tronson denied he said that he was pre-
paring a wage schedule averring that such a statement
would have been a waste of time, for he was concentrating
on winning the election and was then under the belief that
it was likely the Union would win. Moreover, he says, Re-
spondent's attorney, Jordan, had admonished both him
and Teel not to make such statements and so they did not.
On balance, I conclude that the more credible of these
versions is that of Tronson, Teel, Martinez, and Fuller. I
reach this conclusion because DeRaps and Dorge tended
to overreach and add material which is inherently unlikely.
For example, DeRaps testified as follows:
Q. (By Mr. Jordan) Did [Tronson] say he had
looked [in the newspaper] because he thought the
wage policy was pretty competitive with what was
being paid in the industry?
A. At our meeting, he stated-in the beginning, in
the first part of the meeting, he said that no way we
were going to make $6.00 or $7.00 an hour. But, then,
during the part of the meeting, when it was more or
less opened for discussion and we were speaking about
wages, he said, "1 can't promise you, but I will look
into it." He says, "In fact, I have looked in the news-
paper." He says, "I will have to agree with you girls,
you are a little below par."
Q. But did he say that he thought the company pol-
icy was to be competitive with what was being paid in
the area?
A. At our meeting, he just stated that he thought we
were a little below par.
Q. Did he ever say he was going to do something
about that if you voted against the union?
A. He said he had already looked in the newspaper.
Q. Did he say he was going to do something about
it, raise your wages?
A. Well, evidently he was going to do something
one way or the other or he wouldn't have looked in the
newspaper.
Q. That is a conclusion.
A. Or telling us that he would look into it.
Q. That is a conclusion that you are drawing, an
assumption, is it not?
A. Why else would he look in the newspaper?
I find DeRaps' testimony here to be improbable. More-
over, it shows that DeRap tends to inject her personal con-
clusions into her testimony. It is improbable because it is
unlikely that this Employer would concede that its wage
scale was less than its competitors.5 More likely is the re-
sponse recalled by Martinez, Fuller and Dorge to the effect
that Respondent was "on a par" with competitors. To con-
cede that Respondent was not competitive would more
than likely result in persuading undecided employees to
vote for union representation. Moreover, as attorney Jor-
dan notes in the latter portion of the quoted testimony, her
testimony tends to be conclusionary.
Dorge's testimony, too, is subject to doubt. She virtually
confessed she could not recall Tronson's statements with
any degree of certainty. A principal example follows:
Q. (By Mr. Jellison) When Mr. Tronson said, dur-
ing this October 14th meeting on apparently several
occasions, that he couldn't make any promises, did he
couple that statement about he couldn't make any
promises with any further statement?
A. He couldn't make any promises, but the next
statement would be, to the effect, that they couldn't-
MR. JORDAN: I am going to object to this.
JUDGE KENNEDY: I know what the objection is. Let's
try and recall the exact words that he used, if you can.
I think we may have used them a number of times
already, but you go ahead and-
WITNESS: I can't remember or recall exactly the
words that they used. It was always we cannot make
you any promises, but we will look into it. We will
surely-since I can't say for word for word, but words
are strange, and it is the way you say them not the
words themselves. My own personal opinion-
MR. JELLISON: No, I don't want your personal opin-
ion.
WITNESS: No. Okay. No personal opinion.
MR. JELLISON: All I want is what you can recall he
said, if anything. If you can't recall any further, fine.
But I don't want your personal opinion.
WITNESS: Okay. Then I will just drop it. But there
was always a follow-up statement after we cannot
make you any promises, but-it is not we are going to
anyway, but it is-that is what I got. I am sorry.
In addition to casting doubt on her ability to adequately
recall what occurred, I regard her testimony as demonstrat-
ing a tendency to interpret Tronson's words in the manner
she wished to hear them. I think she sincerely believes
Tronson made a statement implying that wages would be
increased; I am equally certain that Tronson did not say
such words. That she believed he had is not unusual in an
electioneering context. Aside from representation elections,
Elsewhere in this Decision I note that Tronson says he had determined
the then current wage practice was not fully competitive and had numerous
inequities. Despite that knowledge he had decided to campaign on the basis
that Respondent was competitive. He used the newspaper want ads as evi-
dence that it was even though he knew the want ads were not the best place
to find accurate wage comparison information.
978
RALEY'S, INC.
electioneering commonly includes promises, and I believe
Dorge simply wanted to hear a promise so badly that she
engrafted one to Tronson's actual statement.
I conclude therefore that at the first meeting on October
14 neither Tronson nor Teel made any expressed or im-
plied promises that wage increases would be made in the
event that the employees voted against union representa-
tion.
Also at that first meeting employees complained about
Chief Accountant Cobb and Personnel Manager Gilmore.
Both Tronson and Teel expressed surprise at the vehe-
mence of the complaint.6 Tronson testified he replied that
supervisors had supervisors and Cobb and Office Manager
Greenlaw worked for him while Personnel Manager Gil-
more worked for both Teel and Tronson depending on the
area of inquiry. He went on to say his door was always
open. Martinez said she knew she had access to anyone in
the building including Respondent's owner, Raley.
DeRaps testified Tronson said he didn't believe Cobb's
actions with regard to the incident about which the em-
ployees were complaining were correct, and he said he
would meet with the supervisors to try to improve commu-
nications. Although Dorge testified Tronson said he would
try to get Gilmore to improve his personal relationships
with employees, that the Company was a family operation
and he would try to keep it so, Dorge also testified Tronson
said he would not change any personnel policies. Despite
Dorge's statement, it is clear that the employees were prin-
cipally concerned about Cobb, not Gilmore.
Martinez testified that, upon hearing the employees'
complaint about Cobb, Tronson became upset saying that
there should be a reason why Cobb was threatening em-
ployees; that Cobb would have to answer and Tronson
would find out why. However, according to Martinez, he
also said he was not going to go right upstairs to ask Cobb
the questions. Fuller testified neither Teel nor Tronson said
they would do anything with regard to the Cobb situation.
Both Teel and Tronson deny saying they would look into
the Cobb matter. Tronson and Teel both say Tronson
pointed out that his door had always been open, and Tron-
son recalled saying he didn't see how the Union could help
with the day-to-day relationship each employee had with
his or her supervisor. Both Tronson and Teel testified an
employee then observed that even if Tronson's door was
open he wasn't always in his office. Both recall Tronson
responding that, if he wasn't in his office, a note could
always be placed in his mailbox.
Several other matters were discussed as well. Some em-
ployees complained about the existing sick pay program
whereby employees were given a pre-Christmas check cov-
ering those days which they had been off sick during the
year rather than receiving a normal paycheck during the
year. Teel testified he told the employees that many years
ago they had voted to have the sick pay program in the
current manner. DeRaps testified that Tronson said that he
would look into the matter and that perhaps employees
could vote on it again. Dorge testified Tronson said that if
6 It should be observed that there is no record evidence that Respondenl's
representatives knew or had reason to know that Cobb's July "pep talk" had
tnggered the Union's organizing drive.
people were unhappy about the current practice it could be
looked into, but she also recalled Tronson specifically say-
ing that he would make no promises about it. She recalled
Tronson saying it had been voted on before and could be
voted on again. Martinez testified that she recalled the em-
ployees' talking about the matter among themselves but
that Tronson and Teel said little if anything on the subject.
She recalls Tronson saying he didn't care which way the
program worked. She specifically recalled he did not sug-
gest another vote on the subject and that he had no deci-
sion to make about it. Fuller, who had raised the subject.
recalled either Tronson or Teel saying that employees had
elected to have it this way, and she replied she doubted
people wanted it that way anymore. She recalled rather
vaguely that either Tronson or Teel said it was "up to the
employees to get it changed." Teel testified he explained
how the program had come about and explained how it
worked noting that it followed a policy set forth in the
collective-bargaining agreement Respondent had with the
Independent Drug Clerks Association. He recalled
Tronson's saying Respondent didn't care which way the
sick pay program worked. Tronson corroborates Teel and
testified that the reason he didn't care which way the pro-
gram worked was because the way suggested by the em-
ployees would be slightly cheaper in that employees who
quit during the year would probably not be paid for un-
used sick leave. Both deny suggesting that another vote be
taken.
During this meeting, either Martinez, Jody Lowery, or
Linda Smith told Tronson that when she was hired she had
been promised the right to transfer to a retail store. Dorge
testified that during this discussion Tronson said such
transfers were against company policy but "could be
looked into." She recalls Teel's saying that as far as they
knew they weren't going to change the policy but "would
look into it." DeRaps agrees that Teel said it was not com-
pany policy to permit transfers, but she says Tronson said
he would "look into that." Fuller recalls Tronson's and
Teel's saying that the Company had a policy against store
transfers because employees couldn't use the office as a
jumping off place." She testified Teel said nothing about
changing the policy. Martinez was not asked about the
matter. Tronson testified that in response to the question
raised by Lowery and Martinez he merely said it was
against company policy to permit store transfers. Teel re-
called that it was Linda Smith who asked the question
about the store transfers. He, too, said it was against policy
and she replied she'd been made the promise. Teel denies
that he offered to change the policy.
It should be observed at this point that to each of these
meetings Tronson brought at least two documents. The
first was a copy of a questionnaire (not in evidence) which
the Union had distributed to employees seeking to de-
termine what the employees wanted; the second was a list
of matters which he believed should be discussed at the
meeting. Dorge testified, with apparent reference to
Tronson's use of the Union's questionnaire, that Tronson
said he had looked into employee "grievances" and as
there was some truth to them he would "look into them."
She recalls he asked the employees to vote against the
Union and to give the Company another chance. She says
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he said he wanted to do what was right and needed a vote
of confidence from the employees; that what the Union
could do the Company could do. However, she also re-
called Tronson's saying he could not make any promises.
Tronson, corroborated by Teel, recalled that when he used
the Union's questionnaire, he merely pointed to some of
the matters listed therein saying, "How could anybody be
against that; to be against those things would be like being
against motherhood and apple pie." None of the other em-
ployee witnesses corroborated Dorge's version.
2. Meeting 2
The General Counsel called no witnesses with regard to
the second meeting; Respondent called employees Debo-
rah England, Yvonne Morris, and Janice March. The
meeting proceeded in the same general format. Tronson
advised the group of the upcoming election, described its
mechanics, and then proceeded to describe existing bene-
fits saying the Company could make no promises or com-
mitments. The principal difference was that, having previ-
ously heard the employees' complaints about Cobb and an
expressed claim by employees that they were not familiar
with the company hierarchy and that they did not know to
whom they could turn, Tronson was more explicit about
his and Teel's duties pointing out that Cobb and Gilmore
reported to them. The three employees who testified with
regard to this meeting were generally consistent. They testi-
fied that Tronson and Teel said they weren't at the meeting
to make promises but were there merely to state Respon-
dent's position.
The first item which appears on Tronson's reminder
sheet which he had with him was the statement: "We are
precluded from making specific promises such as pay in-
creases or other benefits." The use of the phrase "specific
promises" triggered a series of questions by Respondent
and the General Counsel flowing from the use of the
phrase "specific promises." Their purpose was to show that
if Tronson stated that he could make no "specific prom-
ises" a negative pregnant could be found because the
promises would be implied and not specific. They asked
both Morris and England if Tronson said he could not
make "specific promises." Both, however, denied Tronson
used the phrase "specific promises." Morris, March, and
England all testified that Tronson and Teel said many
times (estimated between three and six times) that they
could make no promises. March recalled that was their
response to "nearly everything." Moreover, she says nei-
ther Teel nor Tronson ever said, "[TIhey would look into
things."
With regard to pay matters, Morris testified that pay was
discussed mostly by the employees. When she asked Teel if
the Union would get employees higher wages, Teel did not
answer that question replying only that he couldn't make
any promises and telling her his hands were tied. On direct
examination, England could not recall that wages were dis-
cussed at all but did say Tronson never said he was going
to conduct a wage survey. With regard to fringe benefits,
she recalls Tronson's saying he "could not do anything at
this point because of the Union and he could not make any
promises to us at all." Tronson testified that during this
meeting Morris asked him what the pay would be if the
Union didn't win the election. He replied, "We can't an-
swer that," referring to his opening remark that neither he
nor Teel could make any "specific promises." Thus, despite
the employees' recollection that he did not use the phrase
"specific promises," he admits on this occasion that he did.
Despite this admission, I find no negative pregnant isjusti-
fied as the employees clearly did not recall it occurring that
way.
The complaints about Cobb were discussed at the sec-
ond meeting as well. March and England both testified
Tronson said the Company always had a policy that em-
ployees could come and discuss anything freely and his
door was always open. England also testified Tronson said
he did not think the Union could solve problems employ-
ees had with their immediate supervisors.
In addition, the matter of the sick pay program was dis-
cussed. Someone, probably Susan Corrin, complained
about it, and Tronson said he understood the complaint,
explained how the policy had been established, but reaf-
firmed the policy. Morris said employees asked if it could
be changed and Tronson replied, "We can't make any
promises at this time." England testified that Tronson did
not mention voting about it again.
3. Meeting 3
The General Counsel called Jennifer Muschetto and
Carol Huddleston to describe the third meeting. Respon-
dent called Ed Entrican. The format followed the second
meeting in which Tronson, in addition to describing the
mechanics of the election and describing existing benefits
saying he was not there to make promises or commitments,
also described the fact that he and Teel supervised Cobb
and Gilmore. Muschetto, Huddleston, and Entrican all
agreed that Tronson and Teel said on a number of occa-
sions they could not make promises. Muschetto said that
Tronson made that statement at least six times and Teel
said it at least three times. Huddleston recalls Tronson say-
ing it at least three times. Entrican recalls Tronson's and
Teel's saying that they could not make promises and were
there to answer questions. He recalled that, when problems
were mentioned to them, they acknowledged their exis-
tence but said they could not promise to resolve anything.
He recalls their saying their hands were tied because of
"the law."
Huddleston testified that during the meeting she com-
plained that wages and pay shcedules were unfair. She tes-
tified: "When I was speaking of wages and how unfair the
pay schedule was, [Tronson] agreed [with] me that he
was-that seniority should be paid more than somebody
hired off the street, and he was going to set up a pay scale,
and that is the way I understood him." She also testified
that at one point Tronson said Respondent's wages were
competitive but he would "look into it." At another point
she testified Tronson agreed with her that wages were un-
fair and not according to seniority, and he would look into
it but would promise nothing. Muschetto testified: "The
first matter brought up was pay because that was our ma-
jor complaint, that we weren't making enough money, that
most of us could barely get by on what we were making.
He kept stating throughout the meeting that they couldn't
980
RALEY'S. INC'
promise us any pay increases, but that the matter would be
looked into." Entrican testified that wages were discussed
in the context of the newspaper. He said Tronson told the
employees that the newspaper want ads showed Respon-
dent's wages were not too far out of line. Although not
specifically asked, the thrust of his testimony is that neither
Teel nor Tronson said they would "look into" wages.
With regard to employees' complaints about Cobb. both
Muschetto and Huddleston said employees described to
Tronson the way Cobb had discharged an employee and
Tronson appeared surprised about it.7 Huddleston said
Tronson told them he was not aware of Cobb's "pep talks"
and his threats of discharge. They said he explained his
duties included personnel duties and that the Company
had an open-door policy, and employees could talk to him
privately about problems they were having. Muschetto tes-
tified Tronson said that messages could be placed in his
box. Huddleston testified that Tronson said suggestions
could be placed in his box and that he would also consider
any wage information if it were put in his box. Entrican
denied her version saying that Tronson did not mention
the subject of a wage survey nor did he invite employees to
submit wage information to him. Muschetto testified Tron-
son said, "If you have any problems come to us" and that
he had never said anything like that before. Entrican testi-
fied that, after Muschetto complained about the manner in
which an employee had been fired, Teel said he was not
aware of the firing, but Tronson replied he was aware of it
yet made no further comment. Entrican testified both Teel
and Tronson said the Company had an open-door policy
and if people had problems they could see either of them.
Moreover, according to Entrican, Tronson said that if any-
one didn't want to see him in person he or she could write
him a note and put it in his mailbox.
Muschetto testified with regard to the sick pay program
that Tronson explained how it started and told them they
could vote on it again. Huddleston said Tronson said he
would look into it and see how the people felt but made no
promise to change it. She said it was a matter to be left up
to the employees, and he did not indicate what action, if
any, he would take. Entrican said Teel described how it
came about and then said that maybe it was time for a
change but nothing could be done about it now because
they couldn't promise anything.
Of these three only Huddleston was asked about the sub-
ject of store transfers. She said that either Teel or Tronson
said it was not company policy to permit such transfers.
but he would look into why someone had told employees
that the Company permitted such transfers. She also testi-
fied that during the course of the meeting Tronson said
that had he known about the employees' problems before
he could have helped. He concluded, according to her, by
saying, "Please give me another chance. Do not vote for
I am unable to accept Muschetto's and Huddlesion's claim that I ronson
appeared surprised upon hearing the employees' complaint about Cobb.
This was the third meeting and the third time he had heard it. He had even
adjusted his introduction because of it. Certainly, there was no advantage to
be gained by feigning surprise: indeed. it is probable that he would simply
have said he was familiar with the complaint having already heard iI twice
that day. Thus. I regard their testimony as embellishment and casting suspi-
cion on their testimony elsewhere.
the Union. If I fail you. you can always vote again. Put
vour trust in me."
With regard to Huddleston, I found her to be unable
objectively to describe what she perceived. In her testi-
mony quoted siupra, she refers to the fact that she "under-
stood" statements from Teel and Tronson rather than de-
scribing them. Moreover, at one point during her testimony
she said that Tronson told her that in the event of a strike
the Company could "fire us." No other employee corrobo-
rated that remark and in fact it was Teel who discussed the
Company's rights in the event of a strike, not Tronson.
Later on cross-examination, she virtually confessed she
equated the word "replace" with the word "fire." Judging
from earlier company campaign material, it is more likely
he referred to the Company's right to replace strikers. I
recognize that the distinction between the two words is not
easy for a lay person: indeed, it is not easy for some law-
yers. Nonetheless, in the context of this case, where there is
great disagreement about what was said, I do not believe it
unfair to note this as an example of Huddleston's inability
to recount accurately what was said. Accordingly, although
I do not find her to be unreliable, neither do I find her to
be as reliable as Entrican, Tronson, or Teel.
With regard to Muschetto. although I find that she testi-
fied reasonably honestly, again I do not believe her recol-
lection was as good as that of the other witnesses. More-
over. on one occasion, after testifying she was unaware that
the Company had an open-door policy, she was asked if
she knew if other employees had ever taken up any prob-
lems with either Tronson or Teel before the October 14
meeting. She replied that she knew of employees who had
taken such problems up with Tronson and Teel. However,
she immediately retracted that saying she didn't know
whether or not anybody had. Again, although I do not
believe this testimony' to be particularly significant, it does
tend to show her lack of clear recall.
Both Tronson and Teel testified that it was difficult for
them to recall each meeting specifically as they tended to
run together in their minds. The)' are adamant in their as-
sertions that they made no promises. Indeed, both recall
saying several times that they could make no promises be-
cause they were precluded by law from doing so.
As noted elsewhere in this Decision, no party called any
employee witness with regard to the fourth meeting which
was held on October 15. Thus, only Tronson and Teel testi-
fied about the fourth meeting but only in general terms.
F. Respondent's Preelection Correspondence to Employees
On September 7 and October 8, Teel wrote the voting
unit employees letters in which he argued against union
representation. In neither of these letters did he make any
remark which any party considers to be improper. On Oc-
tober 8, he also sent a copy of those letters to the advertis-
ing department and printshop employees who had just
been added to the voting unit by the Regional Director.
On October 19, the day before the election, Tronson re-
sponded by memo to a union campaign claim dealing with
contracts it had with office employees of two competitors.
In particular, he cited certain wage inequities that he be-
lieved the Union had done nothing about. He concluded
981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his memo as follows: "As we have pointed out, we are
unable to quote any rates since this could be construed as
an attempt to make promises relative to proposed rates.
But any subsequent changes in rates will be based on all
information we have available to us."
G. The Postelection Wage Increase
On October 22, 2 days after the election, Tronson issued
a memo to all office employees and their supervisors. In
that memo he advised that he was in the process of making
a detailed salary evaluation based on information available
to him. He said, if any of them had information regarding
salary schedules for Sacramento area groups, he wished
that information could be submitted to him so it could be
included in the study. He further advised there would be a
rate change retroactive to October 25.
On November 12, Tronson actually announced the spe-
cific wage changes. This was done by issuance of a pay
schedule with an effective date of October 26. This sched-
ule (G.C. Exhs. 4 and 4(b) ) divided the central office em-
ployees into four categories: (1) Accounting clerks; (2) lead
clerks and payroll clerks; (3) general office clerks, printing
machine operator, and assistant sign painter; and (4) secre-
taries (except executive), leadman-printshop, and advertis-
ing aides. It then set forth four hourly wage schedules
based upon months of service.
This adjustment of pay scales according to seniority was
a change from the existing practice. The previous pay sys-
tem for these employees can only be described as a "non-
system." It appears to be the result of the lack of effective
controls. Junior employees were often paid more than
more experienced employees, although each was doing ap-
proximately the same job. Over the years this had resulted
in a number of inequities. Tronson explained that the se-
niority application was an effort to remedy these inequities.
Nonetheless, other aspects of these increases raise cer-
tain questions. Because of the injection of the seniority fac-
tor, it would not be unusual to expect the raises to vary
either in the amount of money or in terms of the percent-
age increase. Nonetheless, the overall size of the increase
was quite large, in one case $1.45 an hour or an increase of
32 percent. In addition, the increase affected virtually all of
the employees in the voting unit. Moreover, there is the
question of the timing of the increase. Tronson testified
that raises were generally given every 6 months. The last
increases had been given in June to 18 employees and in
July to 4 more. Examination of the payroll records shows
that Respondent's practice between January 1974 and Oc-
tober was inconsistent at best. In the 33 months between
January 1974 8 and October, there were only 5 months in
which one employee or another did not get some sort of
increase. It does appear that in April 1974 a general in-
crease was given, although not to everyone, as were in-
creases in February and March 1975, June 1975, December
1975, and, as previously noted, June. None of the pre-Oc-
The records in evidence do not show if raises were actually given in
January 1974. that month is used to show pay rates in effect as of that
month. While it is probable that raises were given in that month, I have not
counted it for that purpose.
tober increases was very large. For example, in December
1975, Yvonne Morris received a 9-cent hourly raise in-
creasing her rate of $3.03 to $3.12. In June, she received a
17-cent raise to $3.29. However, her October increase was
to $4.04, a jump of 75 cents. That figure, of course, is pur-
suant to the new schedule and is in accordance with her
length of service. Huddleston, an example cited by the
General Counsel, is even more dramatic. In January 1974,
her rate was $2.31. In July 1974, she received a 9-cent in-
crease; in January 1975, 10 cents; in March 1975, 17 cents;
in June 1975, 17 cents; in September 1975, 6 cents; in De-
cember 1975, 6 cents; and in June, 23 cents, to her then
rate of $3.17 an hour. However, in October, she was
jumped to $4.62, an increase of $1.45 per hour. This, too, is
in accordance with her seniority under the new schedule.
To put her increases in some perspective, however, it
should be noted that, although her general category now is
accounting clerk, a generic classification for all of the func-
tions she has performed, nonetheless she has performed
different duties since she was originally hired in 1972. No
doubt, as her duties changed, her rates of pay changed as
well. This may well account for the number of pay-rate
changes noted herein.
Respondent's Explanation of the Wage Schedule
Tronson explained that, because an increase had been
given in June, he could not understand why the employees
had sought union representation in July. Accordingly, he
looked into the wage structure to see if that was an area of
employee dissatisfaction. He testified that, prior to the
June increase, he had given instructions to Chief Accoun-
tant Cobb to implement the June increase in accordance
with a wage survey conducted by the Sacramento Valley
Employers Council. He said he had told Cobb to put the
office employees into the midrange of that survey. Thus, he
says, when he began investigating after the filing of the
petition, he learned that Cobb had not followed these in-
structions. In addition to failing to place the employees in
the proper range, according to Tronson, Cobb had also
failed to take into account an instruction to upgrade the
employees from the "general" category to a skilled catego-
ry. This directive, he said, was a result of a gradual conver-
sion to electronic cash registers. He said the first one was
installed in late 1974 but it was not until mid-1975 that a
large number were installed. He said that these cash regis-
ters record a great deal more data than the displaced regis-
ters. Accordingly, the office clerks who reviewed the data
had to expand their duties and thus their skills increased.
The records are inconclusive with regard to whether or not
the small number of wage increases which occurred during
mid-1975 had anything to do with the skill level or duties
of the accounting clerks.
According to Tronson, when he discovered Cobb's error,
he decided to do nothing about it because Attorney Jordan
had earlier advised him that the Company could not make
any promises or grant any pay increases until after the
election. At that point, Tronson says he decided to concen-
trate on the election and wait until December. Teel testi-
fied that Tronson told him of Cobb's error sometime in
June. In any event, after the election turned out favorably,
982
RALEY'S, INC.
the two decided that Respondent had run a "clean cam-
paign" and was now free to do what it wanted. Thus, ac-
cording to them, they decided not to wait until December
but to implement the corrections as soon as they could. It
was for this reason that Tronson issued his October 22
memo requesting the wage information and advising that
an increase was forthcoming. No testimony was taken with
regard to the manner in which Respondent reached the
wage schedules announced on November 12, retroactive to
October 26.
IV ANALYSIS AND CONCLUSIONS
A. Preelection Conduct
I have previously noted that this case presents difficult
questions of credibility. I have already resolved the ques-
tion of whether or not Tronson on October 14 and 15 im-
plicitly promised a wage increase and concluded that he
did not. Even his October 19 memo is not an implied
promise. It simply repeated what he had said at the meet-
ings and then stated the obvious-that future wage increas-
es would depend on information to be discovered in the
future. That could easily have included union wage de-
mands. I therefore find this memo perfectly lawful.
However, other questions remain to be more fully re-
solved. In resolving these matters I have taken into account
many things. I have noted that Respondent has little, if
any, antiunion animus. It has a long relationship with the
Charging Party, as well as other locals of the same Interna-
tional Union. In other bargaining units it recognizes three
other unions as well.9 Moreover, Attorney Jordan's admo-
nitions to Tronson and Teel to the effect that they made no
promises and grant no wage increases are not without
weight. I have also considered the possibility that certain of
the employees called by Respondent may have had a bias.
Martinez wrote an open letter to employees in which she
argued against representation by the Union having appar-
ently been offended by some of the Union's tactics. None-
theless, I did not find her testimony colored to any great
extent. So far as I could tell she testified in a straightfor-
ward, honest manner. Moreover, she is corroborated to a
high degree by Fuller, who, for the most part, was a very
impressive witness. Indeed, she was one of the employees
most offended by management and also in need of the
higher wages the Union could be expected to negotiate.
Yet, her testimony was consistent with that of Tronson and
Teel.
The most important factor I have considered, however,
is the undisputed fact that Tronson and Teel said over and
over again that they could not make any promises or com-
mitments. Estimates of the number of times this was said
ranged from 3 to 10 per meeting. Two witnesses (March
9A mild irony is the fact that Respondent was recently found guilty of
giving unlawful assistance to the Charging Part) with regard to the repre-
sentation of certain drug clerks, who properly belonged to the Independent
Drug Clerks Association's bargaining unit. See Rales s. Inc. 227 NLRB 670
(1976). Thus, it appears that Respondent ma) actually favor the Charging
Party in some circumstances. This is not to say, of course, that Respondent
welcomed the Charging Party as the representative of its central office em-
ployees.
and Entrican) testified that nearly every response made by
either Tronson or Teel was prefaced by a statement to the
effect that promises could not be made.
In view of these factors, and the mistrust of certain wit-
nesses' recollection noted earlier, I reject the assertions that
Tronson and Teel made any express or implied promises
with regard to: (1) A wage survey: (2) changing the sick
pay policy; and (3) changing the policy against transferring
to a retail store.
With regard to the wage survey matter as an implied
promise of a wage increase, I believe DeRaps, Muschetto,
and Huddleston are simply mistaken. This testimony was
clearly denied by Fuller, Martinez, England, and Entrican.
Respondent's argument that the postelection request for
information would be a useless act if a request had been
made before the election is persuasive. Moreover, the testi-
mony of DeRaps, Muschetto, and Huddleston is doubted
for the reasons previously expressed.
As far as changing the sick pay policy is concerned, I am
not persuaded the testimony of DeRaps, Dorge, Muschet-
to, and Huddleston is as convincing as that of Martinez
and Entrican. Moreover, Tronson and Teel's continuous
statements that no promises could be made outweigh, in
my opinion, any testimony to the contrary.
Finally, with regard to the matter of store transfers, I am
likewise not convinced. I recognize that Dorge and De-
Raps testified to the effect that the policy would be looked
into. Huddleston said that they would only look into why
employees were being misled about the policy. Entrican
denies that Tronson or Teel said they would look into the
policy. It appears to me that the policy prohibiting office
employees from transferring to the store was a strong one,
and, after weighing all the evidence, it appears improbable
that Tronson or Teel would imply that such a strong policy
could be changed.
Several other matters remain for discussion. At various
points witnesses said that Tronson or Teel said changes of
one sort or another could not be made "because of the
Union" or "at this time." If taken literally, of course, those
statements could be construed to mean that benefits were
being denied because of the Union's presence. If that was
the intent, a violation of Section 8(a)(1) would be made
out. However, I regard those statements as careless recol-
lections or imprecise shorthand for what was actually said.
I believe it is clear that Tronson and Teel actually said that
their hands were tied because they were prohibited by law
from making promises of benefit. Moreover, any reference
made to time was simply a reference to the fact that they
could not make promises so long as the election petition
was pending. Such statements are in accordance with the
law, and I shall not condemn them merely because of the
inaccurate recollections of employees.
In addition. I am aware the Board has held that when an
employer, who has not previously done so, offers employ-
ees an opportunity to "air their complaints" in response to
union organizing, it violates Section 8(a)(l), because there
is a compelling inference to be drawn that the complaints
will be remedied. Reliance Electric Company. Madison Plant
Mechanical Drives Division. 191 NLRB 44. 46 (1971}.10 cit-
0 Enfd 457 F 2d S03 (CA 6. 19S2)
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Raytheon Company, 188 NLRB 311 (1971). See also
F. W. Woolworth Co. (Store No. 2288), 188 NLRB 941
(1971). However, I do not believe those cases are control-
ling here. First, Tronson credibly denied soliciting any
complaints; and, second, although he did not cut them off
when they came, both he and Teel repeatedly said they
could make no promises. I regard those statements as ef-
fectively negating any inference which might otherwise be
drawn that employee complaints would be remedied.
Finally, I do not find Tronson's reference to the existing
open-door practice, even if it were not a previously an-
nounced policy, to be an implied promise to resolve griev-
ances. It merely called employees' attention to an existing
condition of employment. That is certainly lawful. See
Schwab Foods, Inc., d/b/a Scotts IGA Foodliner, 223 NLRB
394, fn. 1 (1976). Even where he was responding to a com-
plaint about Cobb, he did not imply he would solve the
employees' complaints against Cobb but only pointed out
that Cobb had superiors as well, and that it was Respon-
dent's desire to keep lines of communication open.
The General Counsel's contention that the open-door
policy was something new is clearly without merit." Ac-
cordingly, I conclude that, on October 14 and 15, Respon-
dent neither solicited grievances with promises of resolu-
tion thereof, nor did it promise benefits, including pay
increases, in the event that the employees voted against
union representation. I shall therefore recommend that the
complaint be dismissed in those respects.
B. The Postelection Wage Schedule Adjustment
The General Counsel and the Charging Party argue that
the November 12 wage adjustment was intended as a re-
ward to the employees for having voted against union rep-
resentation. Indeed, the Board has held on numerous occa-
sions that a reward of this nature does indeed violate
Section 8(a)(1).' 2 The Board has also found employers to
II In 1975. after a payroll clerk had been terminated. Tronson explained
the circumstances of the discharge to certain employees in order to maintain
morale. thereby identifying himself as having personnel authorization. In
1976, accountant Entrican complained to Tronson because Cobb had as-
signed him to a new position In June. Sunny Fuller went to Tronson to
request a week's pay in lieu of a vacation, a request which Cobb had refused
to grant. About the same time. Julie Hloffman made a complaint to Teel
about Gilmore. In the early part of the year, printer Dave Lewis went to
Teel requesting him to overrule Gilmore's denial of the right to purchase
some printing equipment. Once, a sign shop employee bypassed his super-
visor by going directly to Teel to ask that certain shelving be constructed. In
late 1975. employee DeMario's stereo equipment, which was being used by
the advertising department, was stolen. I>eMario went to Teel to ask him to
override Gilmore's refusal to compensate him for the loss. Martinez testified
that she knew she could approach any supervisor; she never thought there
were any closed doors. Muschetto at one point started to admit that she was
aware that employees had taken up problems with Tronson and Teel; later.
she recanted, saying she didn't know. Based on these instances, it is difficult
for me to conclude that an open-door practice was not in effect. That some
matters which were discussed were more closely related to personnel than
others (i.e., vacation policy variance versus reimbursement for stolen stereo
equipment) does not change this conclusion.
2 E.g., Eagle Material Handling of New Jersey. 224 NLRB 1529 (1976),
enfd, 558 F.2d 160 ((.A 3. 1977). Wetstmrinster (Communi9 , Hospital, Inc.
221 NLRB 185 (1975), enfd. as modified 566 F.2d 1186 (C.A. 9, 1977):
F W ' Woolworth Co. (Store No. 2288). supra. C( E. Collins and 0 C. Col-
lins. d, hba Collmi Mining (ornompanv. 177 NLRB 22i1 (1969), enfd. per iuriam
440 F.2d 1069 (C.A. 6, 1971). I)eoral ( srporation. etc.. 163 NLRB 146
have violated Section 8(a)(l) by the granting of postelec-
tion benefits in situations where it is clear that the em-
ployer sought to obtain an advantage in the event a second
election was ordered.t3
There is even at least one case holding that a grant of
benefits during the period for filing objections violated
Section 8(a)(1) and therefore was cause to set the election
aside. F. W. Woolworth Co. (Store Number 2288), supra at
948. However, the question of whether or not postelection
violations of Section 8(a)(l) are grounds for setting the
election aside appears to have been repudiated by the
Board in Shulman's Inc. of Norfolk, 208 NLRB 722 (1974).
Ultimately, of course, the question of whether a postelec-
tion grant of benefits violates Section 8(a)(1) is a question
of fact; i.e., was the purpose of the grant to interfere with
the employees' Section 7 rights or was it for some other
purpose? The only way that question may be answered is
from an analysis of all the surrounding circumstances. In
my opinion, such an analysis dictates the conclusion that
Respondent's November 12 readjustment of the wage
structure was not made for the purpose of rewarding em-
ployees for rejecting the Union or for seeking an advantage
in the event of a second election.
In reaching this conclusion, it is not necessary to de-
termine whether or not Tronson gave Cobb directives in
June regarding that wage increase or whether Cobb failed
to implement them. Nor is it necessary to determine wheth-
er or not the skill levels of the employees had risen to such
an extent as to justify an upgrade from a "general" office
employee to some sort of "skilled" level. When he scruti-
nized the salary structure of the office employees, Tronson
learned it was not structured at all. Indeed, it had little
rhyme or reason. Newly hired employees with little or no
experience were being paid an amount equal to or more
than experienced employees. Common sense tells me that
such a situation would rapidly create a morale problem
together with a concomitant risk of loss of efficiency, not
to mention the probable higher risk of losing experienced
employees.
In the face of those risks, it is not surprising that Tron-
son and Teel decided immediately after the election to
remedy the topsy-turvy system which had come into exis-
tence. Nor am I surprised that it was done promptly after
the election rather than awaiting the December or January
increase. Potential morale problems flowing from the ex-
isting practice had been courted long enough. There was
no sense in extending that invitation to trouble and pro-
longing that risk.
While the timing itself raises a suspicion about Respon-
dent's motive here, the fact that Respondent had demon-
strated no antiunion animus prior to the election weighs
heavily in determining the purpose of the wage restructure.
Had Respondent previously promised a wage increase or
relief from the old system, it would be easy to conclude
(1967), enforcement denied 397 F.2d 488 (C.A. 7, 1968); Gal Tex Hotel
Corporation, d/bia Admiral Semmes Hotel and Motor Hotel, 154 NLRB 338
(1965): Northwest Engineering Company, 148 NLRB 1136 (1964), enfd. 376
F.2d 770 (C.A.D.C., 1967).
m E.g., Felsenthal Plastics, Inc., now known as Grede Plastics, a Division of
Grede Foundries, Inc., 224 NLRB 1312 (1976); Centralia Container Corpora-
ion, 195 NLRB 650 (1972); Ralph Printing & Lithographing Co, 158 NLRB
1353 (1966). enfd. as modified 379 F.2d 687 (C.A. 8, 1967).
984
RALEY'S. INC.
that its implementation was the fulfillment of that promise.
However, unlike the "reward" cases cited supra, there is no
evidence supporting that view. Tronson's October 22 memo
cannot be taken as evidence of an expression of gratitude
except by strained inference. Unlike the facts in some of
those cases, the memo did not thank the employees for
their vote; and, unlike the "advantage" cases cited supra,
the memo did not link the wage increase to the election or
to possible objections. Thus, it is not reasonable to con-
clude that the readjustment was intended to obtain an ad-
vantage in the event of a second election. Indeed, the likeli-
hood of a second election appeared remote to Tronson and
Teel, and their seeking an advantage in a second election
does not appear to be a reasonable probability.
I conclude therefore that Respondent's intent and pur-
pose 14 in making the postelection wage adjustment was
not to interfere with the Section 7 rights of its employees,
but was instead for a legitimate business considerationi. 5
Cf. Evansville & Ohio Valley Transportation Co., Inc., supra:
and Mr. Fine, Inc., 212 NLRB 399, 403-404 (1974); Erie
Technological Products, Inc., 218 NLRB 878, 883 (1975):
Advance Envelope Manufacturing Company, Inc., 170 NLRB
14 The Court of Appeals for the Third Circuit has recently said: "'hether
a post-election conferral of benefits constitutes an unfair labor practice de-
pends. we believe, on the employer's purpose in granting the benefits"
N.L.R.B, v. Eagle Material Handling, Inc., et al., 558 F.2d 160. 165 (C.A. 3.
1977). The Board appears to agree with this test. See Eian.silhl & ()hwil
Valley Transporration Co., Inc., 223 NLRB 184, fn. 2 (1976). where the
Board said it was relying on the Administrative Iaw Judge's finding ihat a
benefit grant "was made without intent or purpose of interfering w ith the
employees' statutory rights nor to influence the outcome of the pending
election and that such benefits would have been granted whether or not the
Union had been in the picture." Member Jenkins did not rel; on the :h-
sence of "intent or purpose."
15 Tronson's assertion that even as earls as June the Compans was itring
to upgrade wages according to skills and to pay its employees in accorda.nce
with a community wage survey cannot be ignored. Of course. I,) the time
the new structure was put into effect in November, the March rates shos n
in the Sacramento Valley Employers Council surves were 8 months out cof
date. Moreover, Tronson had asked for. and no doubt received. more up-lo-
date information. Thus, comparison of the November wage schedule vulth
the Sacramento Valley Employers Council survey would not be useful ('er-
tainly, neither the General Counsel nor the Union made any attempt at the
hearing to determine the factors Tronson eventually relied on.
1459 (1968): HYdraulic Acces.sories Company. 165 NLRB
864, 870 (1967): Falcon Plastics-Disision of B-D Lahorato-
ries. Inc., 164 NLRB 786. 794 (1967), enfd. 397 F.2d 965
(C.A. 9. 1968). 1 shall therefore recommend that the com-
plaint be dismissed with respect to the postelection wage
adjustment as well.
\ 1ilt t .t([CTION
In view of m, finding that Respondent did not violate
Section 8(a)(1) of the Act during the preelection critical
period in Case 20-RC-13645, I shall recommend that the
objections, all of which track the alleged unfair labor prac-
tices. be overruled. and that the election results be certified.
Upon the foregoing findings of fact and upon the entire
record in this case. I make the following:
CON( Lt SIONS OF LAW
1. Respondent Rale¥'s. Inc.. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Retail Clerks LUnion. Local 588, affiliated with Retail
Clerks International Association, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. Respondent. on October 14 and 15, did not solicit
grievances from employees concerning their working con-
ditions in order to discourage them from joining or sup-
porting the Union or designating or selecting the Union as
their collective-hargaining representative, nor, on that
same date, did it promise employees improved wages or
other benefits if the employees voted against union repre-
sentation, and therefore it did not violate Section 8(a) 1I) of
the Act.
4. Respondent, on or after October 26, did not change
the wage structure of its central office employees in order
to reward them for having voted against union representa-
tion or in order to obtain an advantage in the event a sec-
ond election were ordered, and therefore it did not violate
Section 8(a)(5) and (I) of the Act.
IRecommended Order for dismissal omitted from publi-
cation.]
985