Rexall Corporation

National Labor Relations Board - Board Decisions

Oct 18, 1982

265 N.L.R.B. 121 (N.L.R.B. 1982)

REXALL CORPORATION
Rexall Corporation' and Office & Professional Em-
ployees International Union, Local 13, AFL-
CIO. Cases 14-CA-14549 and 14-RC-9250
October 18, 1982
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On September 29, 1981, Administrative Law
Judge Benjamin Schlesinger issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief. 2
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 brief
and has decided to affirm the rulings, findings, 3
and conclusions of the Administrative Law Judge,
as modified herein.
1. The Administrative Law Judge found that the
preelection statements Data Processing Manager
Swaine made to employees concerning layoffs he
experienced as a union-represented employee work-
ing for Respondent, and about certain restrictive
employment conditions under which only Re-
spondent's unionized employees worked, implicitly
threatened employment loss and loss of benefits if
the Union won the election, and, therefore, violat-
ed Section 8(aX)(1) of the Act. We disagree.
On December 3, 1980, Swaine met with 11 office
employees to discuss the union campaign. He
reeled off various points regarding the Oil, Chemi-
cal, and Atomic Workers Union (OCAW), the
union that represented Respondent's production
and maintenance employees. He explained that he
began working for Respondent in 1963, in the bar-
gaining unit represented by OCAW, and that, in
his experience, there had been layoffs when work
got slow. He displayed a copy of the current labor
agreement between OCAW and Respondent and
pointed out the section of the contract that prohib-
ited sympathy strikes by employees covered by the
contract. Swaine brought up the subject of time-
clocks and noted that the OCAW unit employees
i The name of Respondent appears as amended at the hearing.
2 The General Counsel has not excepted to the Administrative Law
Judge's dismissal of certain portions of the complaint.
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
265 NLRB No. 15
had to punch one, while the unrepresented employ-
ees did not. He also held up a copy of an attend-
ance control program, a disciplinary system based
on point assessment that did not affect the office
employees, but was an incorporated part of the
OCAW contract. Swaine informed them that a
copy of this program, as well as the contract itself,
would be available in his office for them to read, if
they wished to do so. With respect to the attend-
ance control program and, similarly, in connection
with his comments concerning timeclocks, Swaine
credibly testified that he made it clear that these
items, and ones like them, would have to be negoti-
ated, that the appearance of the Union on the scene
would not mean that changes would be automati-
cally forthcoming. 4
In support of his conclusion that Swaine's state-
ments reflected an attempt to convey threats of job
loss and loss of benefits for voting in the Union,
the Administrative Law Judge principally relied on
evidence that Respondent had never laid off data
processing employees when work had been slow;
that timeclocks and an attendance control program
had never been applied to these employees; and
that Swaine raised a spectre of layoffs and attend-
ance control although those issues had not been
raised in the election campaign. He characterized
Swaine's remarks as predictions, found they had no
basis in objective fact, and concluded, citing
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), that such statements constituted unlawful,
veiled threats of reprisals.
The Administrative Law Judge's findings in this
respect do not withstand analysis because Swaine
did nothing more than truthfully describe his own
experience as a bargaining unit employee and accu-
rately represent specific provisions in a labor agree-
ment under which Respondent's own production
and maintenance employees worked.5 His state-
4 The Administrative Law Judge noted that Swaine replied, "That
does not make sense to me," when he asked him why he told the employ-
ees that layoffs would have to be negotiated. The record reveals that the
Administrative Law Judge was uncertain as to what exactly Swaine's tes-
timony was in this respect. Swaine agreed with the Administrative Law
Judge that the juxtaposition of layoffs and negotiations did not make
sense. Immediately thereafter, he attempted to clarify his testimony by
explaining that he raised the subject of layoffs in connection with his
own union experience, and negotiations with his discussion of the OCAW
contract. Swaine testified earlier in the hearing that he did not tell the
employees that layoffs would result if they voted for the Union, but
rather that he had said, "[E]verything has to be negotiated on what
you're going to get and the only thing I'm trying to show was what one
Union has and one especially that was in Rexall."
I The General Counsel did not dispute Swaine's assertion that Re-
spondent periodically laid him off during his tenure as an employee in the
OCAW bargaining unit. Nor did the General Counsel challenge the accu-
racy of Swaine's description of selected terms and conditions of employ-
ment under which Respondent's union-represented employees worked.
Indeed, those employees who attended the preelection meeting need only
have looked as far as their own coworkers to verify everything Swaine
Continued
121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments elucidated some of the economic realities of
the collective-bargaining process and suggested
certain specific possibilities based on an actual bar-
gaining relationship between Respondent and a
union that represented employees who worked at
the same facility. 6 Swaine merely brought to his
listeners' attention a partisan account of the draw-
backs, rather than the advantages, associated with
union representation. Further, by repeatedly ex-
pressing to employees the caveat that he was not
telling them that changes would occur, only that
they could occur, depending on the outcome of
collective bargaining, Swaine unequivocally elimi-
nated any implication that Respondent intended to
withdraw benefits unilaterally if the Union came in.
In Gissel, supra at 618, the Supreme Court stated,
in pertinent part, that:
[A]n employer is free to communicate to his
employees any of his general views about un-
ionism or any of his specific views about a
particular union, so long as the communica-
tions do not contain a "threat of reprisal or
force or promise of benefit." He may even
make a prediction as to the precise effect he
believes unionization will have on his compa-
ny. In such a case, however, the prediction
must be carefully phrased on the basis of ob-
jective fact to convey an employer's belief as
to demonstrably probable consequences
beyond his control or to convey a manage-
ment decision already arrived at to close the
plant in case of unionization.
Inasmuch as Swaine neither expressly nor implicit-
ly predicted what impact unionization would have
on Respondent, nor did he threaten employees
with reprisals, if the Union won the election, the
Administrative Law Judge's citing of Gissel was in-
apposite. Swaine's statements were expository in
nature and, as such, fell squarely within the ambit
of speech protected by Section 8(c) of the Act. Ac-
cordingly, we shall dismiss that portion of the com-
plaint alleging that his comments violated Section
8(a)(1).
2. Similarly, we disagree with the Administrative
Law Judge's conclusion that the statements by an-
other of Respondent's supervisors, Linda Pryor,
during the first week in December, violated Sec-
tion 8(a)(1) of the Act.
had said concerning timeclocks, attendance controls, and the like. See
Montgomery Ward & Co., Incorpoated, 219 NLRB 1196, 1197 (1975). In
addition, Swaine informed them that he would make the OCAW contract
and the attendance control program available for their review.
6 See Checker Motors Corporation, 232 NLRB 1077, 1080 (1977); cf.
The Dow Chemical Company. Texas Division, 250 NLRB 756, 760 (1980)
(employer's portrayal of its unrepresented employees' benefits during the
course of a decertification election campaign protected by Sec. 8(c) of
the Act).
In finding this violation, the Administrative Law
Judge relied on Pryor's own account of the inci-
dent in question. Pryor testified that she and a few
employees were eating lunch and discussing work-
ing conditions when either she or someone else
brought up the subject of a timeclock that office
employees used to punch. The conversation pro-
gressed and she told them, with respect to her will-
ingness to allow two employees to leave 5 minutes
early to catch a bus, that such a benefit would
become a negotiable item if the Union were to be
elected. Based on the foregoing, the Administrative
Law Judge found that Pryor took advantage of the
timeclock issue, which by then had become an area
of employee concern, and, therefore, that her com-
ments were intended to impart an implicit threat
that timeclocks possibly would be reinstated. In ad-
dition, he found that by mentioning her practice of
allowing employees to leave early, she purposefully
intended to imply that a union victory could signal
the end of that benefit.
Our reading of the record, however, convinces
us that Pryor's remarks were neither coercive nor
threatening. Rather, the remarks were casual and
accurate statements that hours of work and the
means of monitoring them would become the sub-
ject of negotiations if the Union won the election.
Thus, we find that these statements too were well
within the limits of lawful speech protected by
Section 8(c), and, accordingly, we shall dismiss this
portion of the complaint as well.
Having adopted the Administrative Law Judge's
findings that Respondent violated Section 8(a)(1)
by threatening employee Gillham with discharge
and employee Beard and others with the loss of
certain existing benefits, and thereby also engaged
in objectionable conduct, we shall order that the
election be set aside and that a second election be
held. Inasmuch as we have reversed the Adminis-
trative Law Judge's findings that Swaine's state-
ments to a group of employees and Pryor's com-
ments to employee Mueller and others violated
Section 8(a)(l), we shall modify the Administrative
Law Judge's recommended Order accordingly.
CONCLUSIONS OF LAW
1. Rexall Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Office & Professional Employees International
Union, Local 13, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent, through Supervisor Edward J.
Swaine, violated Section 8(a)(1) of the Act by
threatening employee Sherry Gillham with possible
discharge pursuant to an attendance control pro-
122
REXALL CORPORATION
gram, if the employees elected to be represented by
the Union.
4. Respondent, through Supervisor Linda Pryor,
violated Section 8(aX1) of the Act by threatening
employees at a preelection meeting with the loss of
existing benefits if the employees elected to be rep-
resented by the Union.
5. The foregoing unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
6. Respondent did not violate the Act in any
other respect.
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,
Rexall Corporation, St. Louis, Missouri, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with possible dis-
charge pursuant to an attendance control program
if they elect to be represented by Office & Profes-
sional Employees International Union, Local 13,
AFL-CIO.
(b) Threatening employees with the loss of exist-
ing benefits if they elect to be represented by the
Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the purposes of the Act:
(a) Post at its place of business in St. Louis, Mis-
souri, copies of the attached notice marked "Ap-
pendix." 7 Copies of said notice, on forms provided
by the Regional Director for Region 14, after
being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
7In 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
IT IS FURTHER ORDERED that the complaint in
Case 14-CA-14549 be dismissed as to those allega-
tions not specifically found to be violative of the
Act.
IT IS FURTHER ORDERED that the election of De-
cember 19, 1980, in Case 14-RC-9250 among the
Employer's employees be, and it hereby is, set
aside, and that said case is hereby remanded to the
Regional Director for Region 14 for purposes of
conducting a second election, as directed below.
[Direction of Second Election s and omitted from
publication.]
MEMBER JENKINS, dissenting in part:
Contrary to my colleagues, I would adopt the
Administrative Law Judge's findings that Respond-
ent violated Section 8(a)(1) of the Act by: (1) on
December 3, 1980,9 Data Processing Manager
Swaine's implicitly threatening employees with lay-
offs and loss of benefits if the Union won the elec-
tion; and (2) in the first week of December, Super-
visor Pryor's threatening employees with loss of
benefits and more restrictive work rules if the
Union won the election. In all other respects, I
concur with the findings made by my colleagues.
As found by the Administrative Law Judge, on
December 3 Swaine held a meeting with 11 data
processing employees. During the course of the
meeting, Swaine raised the spectre that layoffs, in-
stallation of timeclocks, and a restrictive attendance
policy all could result from a union election victo-
ry. Swaine's statements were not in response to any
issue in the campaign and the data processing em-
ployees in the past never had been laid off, never
had been required to punch timeclocks, and never
had been subject to the type of restrictive attend-
ance policy raised by Swaine. Under these circum-
stances, the Administrative Law Judge found that
Swaine's remarks were intended solely to create a
fear that these policies and layoffs were possible
only if the Union won the election and were part
of what it meant to become union members. In this
regard, the Administrative Law Judge noted that
the veiled threat of layoffs particularly was mean-
ingful because at the very time Swaine made his re-
marks there had been substantial layoffs of other
employees represented by the Union.
Even assuming that Swaine repeatedly stated
that the changes he referred to would have to be
negotiated,' ° I believe that the Administrative Law
8 [Excelsior footnote omitted from publication.]
9 Unless otherwise noted, all dates are 1980.
o1 I note that the majority places great weight on their finding that
Swaine repeatedly stressed that such changes would have to be negotiat-
ed. While the Administrative Law Judge assumed that fact to be true for
the limited purpose of his analysis, he specifically discredited Swaine's
Continued
123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judge properly analyzed Swaine's statements under
the standards for such predictions set forth in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969). As was stated in Piggly Wiggly, Tuscaloosa
Division Commodores Point Terminal Corporation,
258 NLRB 1081, 1092 (1981):
[W]hen an employer advises its employees of
adverse consequences befalling employees fol-
lowing their selection of a collective-bargain-
ing agent, there is always a fine line to distin-
guish between the inference that it is merely
advising employees of potential adverse conse-
quences which could flow from such selection,
or whether it is impliedly threatening the in-
evitable likelihood that such consequences will
flow to its employees in retaliation for their
having selected the union as their collective-
bargaining representative. This distinction
must be drawn based on an analysis of the
entire context of the conversation-indeed, the
entire campaign.
Applying these principles to the instant case, it is
apparent that Swaine's remarks were veiled threats
of adverse consequences that would result if the
Union were selected as the employees' representa-
tive. Thus, Swaine injected the issues of layoffs and
more restrictive working conditions into a cam-
paign where those issues had not been raised and
where those items never had affected the employ-
ees he was addressing. And, though the majority
chooses not to mention the fact, Swaine reinforced
his implied threat immediately thereafter by threat-
ening employee Gillham with discharge under the
very attendance control program he mentioned in
the meeting-a threat that even my colleagues find
violative of Section 8(a)(1). Under these circum-
stances, I would adopt the Administrative Law
Judge's conclusion that Swaine's statements violat-
ed Section 8(a)(1) of the Act, as alleged in the
complaint.
I also disagree with my colleagues' reversal of
the Administrative Law Judge's finding that,
during the first week of December, Supervisor
Pryor implicitly threatened office employees with
more restrictive working conditions if the Union
won the election. Examining the comments made
by Pryor in context, as we must under the authori-
ties cited above, and even assuming that Pryor
stated that such restrictions would have to be ne-
gotiated,II it is clear to me that what Pryor was
claim of having made such repetitions, finding that they "were stated to
impress the factfinder rather than to state the facts." Unlike my col-
leagues, I am unwilling to disturb the Administrative Law Judge's credi-
bility finding.
I" Again, the majority has ignored the credibility findings of the Ad-
ministrative Law Judge. By explicitly finding that Pryor stated that such
implying was that if the Union won the election it
was possible that employees would have to punch
timeclocks and would not be permitted to arrive
and leave work before their scheduled times. It fur-
ther was implied that, if the Union's campaign did
not succeed, the status quo would be maintained.
Such inferences are proscribed by Section 8(a)(1)
of the Act. L'Eggs Products Incorporated, 236
NLRB 354, 388 (1978). Accordingly, I would
adopt the Administrative Law Judge's finding that
Pryor's remarks violated Section 8(a)(1) of the Act.
restrictive working conditions were a matter to be negotiated and then
by placing exclusive reliance on that finding in reaching their conclusion,
the majority chooses to ignore the Administrative Law Judge's finding
that it is "improbable" that Pryor conditioned her threats on the outcome
of negotiations.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT threaten our employees with
possible discharge pursuant to an attendance
control program if they elect to be represented
by Office & Professional Employees Interna-
tional Union, Local 13, AFL-CIO.
WE WILL NOT threaten our employees with
the loss of certain existing benefits if they elect
to be represented by the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed in
Section 7 of the Act.
REXALL CORPORATION
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge:
The instant proceeding, which was heard by me in St.
Louis, Missouri, on April 27-28 and July 13-14, 1981,
concerns 13 alleged violations of Section 8(a)(1) of the
National Labor Relations Act, as amended, 29 U.S.C. §
151, et seq. (Act), which are also alleged to be objection-
able conduct affecting the results of a representation
election lost by Office & Professional Employees Inter-
national Union, Local 13, AFL-CIO (Union). The Union
filed an unfair labor practice charge on December 24,
124
REXALL CORPORATION
1980, and a complaint issued on February 13, 1981, in
Case 14-CA-14549. On the same date, the Acting Re-
gional Director for Region 14 directed that the unfair
labor practice complaint be heard with certain objections
to the election in Case 14-RC-9250 and that the cases be
consolidated. Respondent has denied all of the material
allegations of the complaint and the objections; and I
hereby issue this decision, based upon the entire record
in this proceeding, as well as my observation of the de-
meanor of the witnesses and my review of the briefs filed
by all parties hereto.
Respondent Rexall Drug Corporation, a corporation
duly organized under and existing by virtue of the laws
of the State of Delaware, has maintained a place of busi-
ness in St. Louis, Missouri, where it is engaged in the
manufacture, sale, and distribution of drugs and related
products. During the year ending December 31, 1980, a
representative period, Respondent in the course and con-
duct of its business operations purchased and caused to
be transported and delivered at its above place of busi-
ness, goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000
were transported and delivered to its place of business
directly from points located outside the State of Missou-
ri. I conclude, as Respondent admits, that it is now and
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
I further conclude, as Respondent admits, that the
Union is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the
Act. On September 4, 1980,1 the Union filed a petition
for a representation election; and on November 25, the
Regional Director for Region 14 directed an election in
the following described appropriate collective-bargaining
unit of Respondent's employees:
All office clerical employees, contract coordinators,
mailroom and print shop employees, copy employ-
ees, key punch operators, computer operators, con-
trol clerks, excluding professional employees, tech-
nical employees, confidential and managerial em-
ployees, all other employees and guards and super-
visors as defined in the Act.
An election was held on December 19, and the Union
filed timely objections on December 24. A revised tally
of ballots was served upon the parties on February 6,
1981, disclosing 35 votes cast for the Union, 53 votes
against the Union, and 8 challenged ballots.
Five of the alleged unfair labor practices occurred on
December 3 at a meeting of 11 data processing depart-
ment employees called by Manager Edward J. Swaine,
who conceded that he said: (1) that Respondent did not
want the Union, and he did not, either; (2) that he had
commenced employment with Respondent as a member
of the Oil, Chemical & Atomic Workers Union
(OCAW), which represented Respondent's production
and maintenhnce employees, and he was laid off from
time to time because work was slow and Respondent
I All dates hereinafter set forth refer to the year 1980, unless otherwise
stated.
wanted to save money; (3) and that OCAW employees
had to punch timeclocks and were governed by an at-
tendance control program, and his employees were not.
Swaine insisted, however, that, whenever he mentioned
layoffs, timeclocks, or attendance controls, and their ap-
plicability to his employees, he repeatedly cautioned that
his remarks did not mean that employees were going to
be laid off and that attendance controls would be put
into effect, but that such would be negotiated with the
Union.
Respondent's defense, in essence, rests on the premise
that Swaine never said that these threats would be the
necessary result of a union victory, but that they could
be the result, and that in any event such would result
from negotiations. 2 That does not insulate Respondent
from what remain as veiled threats to employment and
imposition of less beneficial terms and conditions of em-
ployment, caused solely by the employees' turning to the
Union. It was uncontradicted that data processing em-
ployees had never been laid off, despite the fact that
work had often been slow. The employees had never had
either a point system controlling their attendance or ti-
meclocks. Swaine's raising of the spectre of layoffs and
attendance control was in response to no issue of the
election campaign. Rather, it was intended solely to
create a fear that there was such a possibility only if the
Union won the election, and that layoffs and timeclocks
were part of what it meant to become union members.
That became particularly meaningful, because, at the
very time, there had been a substantial layoff of OCAW
employees, and there were only 200 of some 350-375
employees in Respondent's facility.
The employees could hardly misunderstand the import
of Swaine's remarks, and his constant repetition of "it
would have to be negotiated" does not relieve his veiled
threats of layoffs, tighter controls on attendance, and
possible discharge for violations of the attendance con-
trols. In N.LR.B. v. Gissel Packing Co., 395 U.S. 575,
618 (1969), the Supreme Court cautioned that, because
an employer's economic predictions are particularly sus-
ceptible to abuse, such predictions must be "carefully
phrased on the basis of objective fact to convey an em-
ployer's belief as to demonstrably probable consequences
beyond his control .... If there is any implication that
an employer may or may not take action solely on his
own initiative for reasons unrelated to economic necessi-
ties and known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and coer-
cion .... " On the basis of Swaine's testimony alone,
there was no reason presented for the layoff of these em-
ployees, other than the Union winning the election. This
would result "not from the inevitable forces of the
market, but from the deliberate acts of the company
taken in reprisal. N.LR.B. v. Kaiser Agricultural Chemi-
cals, a Division of Kaiser Aluminum & Chemical Corpora-
2 I have assumed herein that Swaine repeated his statement that every-
thing would have to be negotiated. Actually, I found that his repetitions
were stated to impress the factfinder rather than to state the facts. When
I asked him why he stated to employees that layoffs would have to be
negotiated, Swaine replied: "That does not make sense to me....
125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, 473 F.2d 374, 381 (5th Cir. 1973). I conclude that
Swaine's veiled threats violated Section 8(a)(1) of the
Act (pars. 5B, C, and D of the complaint). General Elec-
tric Company, 255 NLRB 673, 690 (1981); American Sun-
roof Corporation, 248 NLRB 748, 766 (1980); Aero Corpo-
ration, 237 NLRB 455, 458 (1978); The Buncher Compa-
ny, 229 NLRB 217, 226 (1977).
I also find it probable that, immediately after the meet-
ing, Swaine told Sherry Gillham that she would be most
particularly interested in the attendance control program
because of her high absenteeism, that it would affect her
personally, and that she had accumulated so many points
under it that she would be terminated. Indeed, Gillham's
poor attendance made her a likely object for Swaine's
comment that the program would have a particular
meaning for her. I conclude that Swaine threatened her
with possible discharge as alleged in paragraph 5E. I do
not, however, find that Swaine specifically told the em-
ployees that Respondent was going to fight the Union to
the end and that the employees would be a lot worse off
with the Union, as alleged in paragraph 5A of the com-
plaint. The testimony of General Counsel's witnesses was
too confused, inconsistent, and contradictory to support
this allegation;3 and I credit Swaine's denial. That para-
graph is, therefore, dismissed.
Timeclocks and more onerous working conditions
were the subject of three alleged violations by Lynda
Pryor, supervisor of the accounts payable and receivable
department. Patsy Ann Mueller testified that during the
first week in December, while she, Pryor, and other em-
ployees were eating in Respondent's cafeteria, Pryor said
that if the Union won the election, timeclocks would be
brought in; and that, although until then she had been
letting employees go home 5 minutes early to catch a
bus, that practice would stop.
Employee Trollie Beard testified that Pryor had a
meeting in her office on December 16 with several of
her employees. She told the employees of the date when
the election would be held, that it was important for ev-
eryone to vote, and that the employees should keep in
mind that they now had certain privileges that they
"will" no longer have, to wit: (I) personal telephone
calls, which instead of being made at their own desks
through separate telephone extensions, would have to be
made through the switchboard operator; (2) break time,
during which employees were then free to go anywhere
in the premises, but would in the future be limited to a
certain area; and (3) leaving early and reporting early,
which would no longer exist. On cross-examination,
Beard conceded that Pryor did not say that breaktime
s Inconsistencies, contradictions, testimony about events missing in ear-
lier recorded recollections (either notes and investigatory affidavits), and
answers to leading questions compel the conclusion that, unless such tes-
timony was otherwise corroborated by Respondent's witnesses or as oth-
erwise found herein, little credence should be given to the testimony of
Gillham, Grace Clouser, and Bessie Carter-whose testimony was much
in conflict. My crediting them with respect to Swaine derives from
Swaine's admissions and focusing on the answer to "'[W]hat did the
speaker intend and the listener understand?"', a question quoted in Gissel
Packing Co., 395 U.S. at 619, quoting A. Cox., Law and the National
Labor Policy 44 (1960). The words used by the employees often reflect-
ed, rather than Swaine's actual words, what Swaine was intending; and,
despite the inherent difficulty presented by the conflicting accounts, the
words constituted threats in violations of the Act.
would be taken away, but that if the Union got in, it was
possible that it would be taken away.
Pryor denied all allegations of wrongdoing. She stated
that her conversation with Mueller, with whom she oc-
casionally had lunch, was misinterpreted. What she
really was talking about was the fact that there used to
be a timeclock outside of the cafeteria and that office
employees had to clock in and out. She admitted having
said that she had two employees who regularly left 5
minutes early and reported to work 5 minutes early, but
she added that that was a negotiable item. Pryor's narra-
tion of the meeting with her employees was also quite
different from what Beard had testified to. Pryor said
that she merely was comparing the working conditions
of OCAW employees with those of her employees and
noted that the factory workers do not get phone calls, do
not have extended lunch hours, and cannot use the cafe-
teria. These are benefits that her employees take for
granted, said Pryor, who denied that she said they would
stop.
I found Beard to be a reliable witness and note that, as
a former employee, she had absolutely nothing to gain
by testifying adversely to Respondent. She exhibited no
bias, and her testimony was strong, direct, and sincere.
The benefits about which Pryor spoke were clearly
meaningful, if not all to Beard, certainly to other em-
ployees. They would be reluctant to place personal tele-
phone calls through the switchboard, whereas with their
own telephone extensions, they were obviously free to
do so. Leaving early was of benefit to at least two em-
ployees. Their inability to visit friends or go to the cafe-
teria at lunch, and instead the threatened limitation to
their mobility, was of concern to all employees. In sum,
I conclude that, contrary to Pryor's denials, there was an
open threat to take away benefits, which was not re-
lieved by any comment that the loss might result from
collective-bargaining negotiations. 4
I was not wholly satisfied with Mueller's testimony,
but Pryor's admitted references to the timeclocks that
office workers had to punch in the past and to her prac-
tice of permitting employees to come to work and leave
early may not be considered in vacuo. In the context of
Respondent's antiunion campaign, timeclocks were evi-
dently an issue of employee concern; and Pryor took ad-
vantage of it. Her reminder to Mueller of Respondent's
past practices was intended to impart the thought that ti-
meclocks could be reinstalled. Her mention of her per-
mission to employees to come to work and leave early
was similarly intended to imply that such may not con-
tinue, solely as a result of the Union's election victory.
Accordingly, her statements were just as much veiled
threats as were Swaine's statements. I conclude that Re-
spondent has violated Section 8(a)(l) of the Act (pars.
5G, H, and K of the complaint).
Paragraphs 5F and J involved allegations that on De-
cember 4 and 9, Harry R. Jones, then Respondent's di-
rector of the data processing department, stated to
Clouser and Carter that if the Union won the election,
bargaining would start from zero and benefits would,
4 Here, again, I have assumed that, at a lunchtime gathering, Pryor
stated that this was a matter to be negotiated. I find that improbable.
126
REXALL CORPORATION
too. As noted above, I was not impressed with Clouser's
ability to clearly recall events. Carter, although testifying
on direct examination that Jones said that none of em-
ployee benefits were guaranteed and bargaining would
start from "scratch," testified on cross-examination (con-
trary to Clouser) that Jones' comments were made while
he was reading a speech and that Jones stated that, in
collective bargaining, one does not know how negotia-
tions wind up, and that benefits could go up, they could
stay the same, or they could go down. Jones testified
that he read his speech verbatim and, even when Clouser
asked after the speech whether benefits could begin at
ground zero, he restated that portion of the speech that
benefits could go up, remain the same, or decrease. His
speech accords with laws, and his testimony was sup-
ported by Carter during her cross-examination. Because
there was no threat "of loss of existing benefits ...
[leaving] employees with the impression that what they
ultimately receive depends upon what the union can
induce the employer to restore," I conclude that Re-
spondent has not violated the Act and dismiss paragraphs
5F and J of the complaint. Taylor-Dunn Manufacturing
Company, 252 NLRB 799 (1980).
Two other allegations refer to those speeches given by
Respondent's president, Larry Weber, on December 18."
A number of witnesses testified in support of the allega-
tions that he threatened employees (1) with loss of their
seniority and (2) loss of direct access to Respondent's
management. Once again, inconsistency was the keynote
of the General Counsel's testimony. Clouser recalled
little about the speech and the General Counsel had to
elicit the following testimony with a leading question:
Weber stated that he thought Respondent had an open-
door policy and he saw no need to bring in a third party
(the Union). Clouser stated that Weber said nothing
about loss of access. She also testified that employee
Ruth Fretwell asked him if employees' benefits and se-
niority would cease if the election were won by the
Union. Weber replied that he was not sure, that he
would check, and he would let the employees know; but
he did not. Gillham corroborated, only after her recol-
lection was refreshed, that Fretwell asked the same ques-
tion, but that Weber's answer was somewhat different-
Weber said that benefits would cease at the time negotia-
tions began, but he did not know, he would check on it,
and he would let everyone know. As to the remainder of
the meeting, Gillham could recall only that Weber stated
that Respondent had always conducted its business on a
one-to-one basis, and he could not see why employees
would want a third party involved.
Employees Rose Anne Johnson and Mueller attended
a different speech by Weber the same day. Johnson's tes-
timony was that Weber stated that, if the Union won the
election, employees would lose their individuality and
the ability of management to deal with employees 6n a
one-to-one basis. The reason for this was that the Union
was to serve as the employees' representative, and man-
5 Weber testified that one of his speeches was given on December 19.
Because that was the day of the election, because the Union filed no ob-
jections to a "captive audience" speech, and because all employees testi-
fied that the meetings were held on December 18, I find that he was in
error.
agement would have to deal with the Union. Mueller's
initial testimony was that, if the Union won, employees
would lose their one-to-one relationship with manage-
ment and that a third party (Union), unfamiliar with Re-
spondent, would "interfere" with the employment rela-
tionship. On cross-examination, her attention was called
to her investigatory affidavit which attributed to Weber
the statement that the Union would become "involved"
in the employment relationship-a statement which
Mueller adopted in her testimony, discarding the previ-
ously alleged "interference." Mueller also testified, but
only when her recollection was refreshed, that Weber
stated that employees would be classified as numbers, in-
stead of names.
Beard attended a third speech of Weber. Her testimo-
ny was that Weber stated that, at present, Respondent
treated its employee as individuals; but, if the Union
won, employees would lose their individuality. On cross-
examination, Beard explained that Weber discussed the
collective-bargaining process and explained that the
Union would be the representative of employees, that
Respondent would have to deal with the Union rather
than the employees individually, and that would result in
uniformity where certain long term employees might
lose something.
Weber specifically denied all the more damaging alle-
gations made against him, stating that he answered
Fretwell's question with a "no" and that he said nothing
about loss of individuality and that employees would be
treated as numbers rather than names. He also admitted
that he discussed some of the topics testified to by the
employees, but his statements were generally that the
"third party" would intrude upon the one-to-one rela-
tionship in bargaining and that the relationship would
not be preempted.
I credit Weber's narration, finding that he was forth-
right and testified with candor; and I conclude that his
speech did not violate the Act regarding the employees,
rights to maintain their individuality. It is quite accurate
that, if the Union won the election, there would be a
third party, which has been designated as the employees'
exclusive representative for the purposes of collective
bargaining. Although that does not mean that all individ-
ual rights are lost, Weber was referring to the collective-
bargaining process; and merely because he did not
openly state that employees may still maintain their right
to present their own grievances to Respondent and have
them adjusted under Section 9(a) of the Act, so long as
the adjustment is not contrary to an applicable collec-
tive-bargaining agreement, does not convert his remarks
into illegal threats. Accordingly, I dismiss these allega-
tions (pars. 5L and M).
The final alleged unfair labor practice was committed
by Helen Henry, who according to certain employees
threatened that Respondent would close its plant and
move to Arkansas if the Union were elected. Substantial
evidence was introduced to prove that she was a super-
visor, a conclusion that Respondent vehemently opposed.
I find it unnecessary to consider such proof. Henry was
stipulated by both the Union and Respondent in Case
14-RC-9250 to be an employee in the bargaining unit.
127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She voted in the election. Respondent argues, with great
appeal, that based upon the stipulation, it considered
Henry to be an employee and did not counsel her, as it
did other supervisors, about the requirements of the Act
and the type of conduct which should be avoided. Thus,
the argument proceeds, Respondent may not be charged
with violations which it had no responsibility for and no
means to ensure would not happen. I agree. In any
event, the Board, in Montgomery Ward & Co., Incorporat-
ed, 115 NLRB 645, 647 (1956), enfd. 242 F.2d 497 (2d
Cir. 1957), cert. denied 355 U.S. 829, has adequately dis-
posed of this claim:
Statements made by a supervisor violate Section
8(a)(1) of the Act when they reasonably tend to re-
strain or coerce employees. When a supervisor is in-
cluded in the unit by agreement of the Union and
the Employer and is permitted to vote in the elec-
tion, the employees obviously regard him as one of
themselves. Statements made by such a supervisor
are not considered by employees to be the represen-
tations of management, but of a fellow employee.
Thus they do not tend to intimidate employees. For
that reason, the Board has generally refused to hold
an employer responsible of the antiunion conduct of
a supervisor included in the unit, in the absence of
evidence that the employer encouraged, authorized,
or ratified the supervisor's activities or acted in
such manner as to lead employees reasonably to be-
lieve that the supervisor was acting for and on
behalf of management.10
10 Indianapolis Newspaper, Inc., 103 NLRB 1750, 1751.
See also Arcadia Foods, Inc., 254 NLRB 1012, fn. 3
(1981).
There are no credited facts occurring after the parties'
stipulation which would lead to the conclusion that
Henry's status changed or that Respondent encouraged,
authorized, or ratified her acts or acted in any manner so
that employees would believe that she was acting for Re-
spondent. I, therefore, dismiss this allegation (par. 51).
I conclude that the unfair labor practices which I have
found herein affect commerce within the meaning of
Section 2(6) and (7) of the Act.
The Objections
Because of the violations of Section 8(aXl) which I
have found herein, are coextensive with Union's Objec-
tions 6 and 9 and "Other Conduct Not Specifically Al-
leged in the Objections," as set forth in the Regional Di-
rector's Supplemental Decision and Order, dated Febru-
ary 13, 1981, I recommend that the election in Case 14-
RC-9250 be set aside and said proceeding be remanded
to the Regional Director for Region 14 to conduct a new
election at such time as he deems that the circumstances
permit the employees to exercise their free choice re-
garding the selection of a collective-bargaining repre-
sentative. "Conduct violative of Section 8(a)(l) is, a for-
tiori, conduct which interferes with the exercise of a free
and untrammeled choice in an election." Dal-Tex Optical
Company, Inc., 137 NLRB 1782, 1786 (1962). Contrary
to Respondent's contentions, the impact of the conduct
was not necessarily limited to the 15 or so employees
who were present when Swaine and Pryor made their
threats. "Experience has shown that statements made
during election campaigns are the subject of discussion
and repetition among the electorate." Standard Knitting
Mills, Inc., 172 NLRB 1122 (1968); United Broadcasting
Company of New York, Inc., 248 NLRB 403 (1980).
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(aXl) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act.
[Recommended Order omitted from publication.]
128