Vegas Village Shopping Corp.

National Labor Relations Board - Board Decisions

Apr 26, 1977

229 N.L.R.B. 279 (N.L.R.B. 1977)

VEGAS VILLAGE SHOPPING CORP.
Vegas Village Shopping Corporation and Retail
Clerks Union, Local 1536, Chartered by the Retail
Clerks International Association, AFL-CIO. Cases
31-CA-5721 and 31-RC-3222
April 26, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On November 12, 1976, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Union filed an
answering brief and cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, briefs,'
and cross-exceptions and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.
Respondent advanced, inter alia, the following
contentions in support of its exceptions:
1. Prior to the hearing in this proceeding, Re-
spondent pursued Freedom of Information Act
(FOIA) requests for the affidavits of all witnesses
which were denied by Deputy Chief Administrative
Law Judge James T. Barker and the Board, as well as
by the Federal district court.2 These denials deprived
Respondent of a fair hearing.
2. The clear preponderance of all the relevant
evidence herein established that the credibility
determinations of the Administrative Law Judge
were erroneous. Illustrative of such error was his
crediting of part of employee Dolores Stevens'
testimony while at the same time discrediting other
parts of her testimony.
3. The Administrative Law Judge found that
George Raymond Williams, an assistant store man-
ager, violated Section 8(a)(l) of the Act in September
1975 by asking employee Teresa Peterson whether
she had signed a union authorization card. In so
doing, the Administrative Law Judge erred because
this allegation was not included in the complaint and
it is further apparent that over 6 months had expired
I Respondent's request for oral argument is denied as the record and the
documents herein adequately present the issues and positions of the parties.
2 Vegas Village Shopping Corporation v. N.LR.B., 92 LRRM 2683
(D.C.Calif., April 26, 1976), appealed by Respondent to the United States
Court of Appeals for the Ninth Circuit.
3 In support of this contention, Respondent cites Queen City Equipment
229 NLRB No. 40
from the time of the alleged statement to the time it
was raised at the hearing.3
4. The Administrative Law Judge found that
Respondent's unlawful preelection conduct was
limited to the unit of selling and nonselling employ-
ees in its seven stores. As said conduct did not extend
to the unit of warehouse employees, the Administra-
tive Law Judge erred in recommending that the
election be set aside for that unit.4
For reasons given below, we find no merit in the
foregoing contentions:
1. As noted above, Respondent appealed to the
Court of Appeals for the Ninth Circuit the decision
of the United States district court which held that the
statements obtained by the Board in the investigation
of possible unfair labor practices were exempt from
production under FOIA. The record shows that
thereafter the General Counsel and Respondent
filed, and the circuit court granted, a joint motion to
hold in abeyance Respondent's appeal until the
circuit court handed down its decision in Harvey's
Wagon Wheel v. N.L.R.B., No. 76-1355, which, like
the instant proceeding, involved "the disclosability
under FOIA of statements taken by Board investiga-
tors in an unfair labor practice proceeding."
On December 8, 1976, the circuit court decided in
Harvey's Wagon Wheel, 93 LRRM 3068, 79 LC ¶ 11,
792, that the Federal district court properly held that
employers against which unfair labor practice pro-
ceedings are pending before the Board are not
entitled under FOIA to disclosure of sworn employee
statements obtained by Board agents because such
statements fall under FOIA's exemption "for records
compiled for law enforcement purposes."
In view of the Board's policy on this issue as well as
the circuit court's recent holding in Harvey's Wagon
Wheel, supra, we find that Respondent was not
entitled under the provisions of FOIA to copies of
the affidavits of all witnesses prior to the hearing in
the instant proceeding.
2. Contrary to Respondent, we find that the
Administrative Law Judge was not required to
discount everything employee Stevens said merely
because he did not believe all of her testimony. For
nothing is more common than to believe some and
not all of a witness' testimony. 5
The Board will not overrule an Administrative Law
Judge's credibility findings except where the clear
Corporation, 211 NLRB 284 (1974), wherein the Board found it unnecessary
to rule or rely on an 8(aXl1) finding which was not alleged in the complaint.
I As indicated by the Administrative Law Judge. the Union lost the
election which was conducted on October 16, 1975, for both units.
5 N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749 (C.A. 2. 1950).
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preponderance of all the relevant evidence convinces
the Board that the findings are incorrect. 6 We have
carefully examined the record and find no basis for
reversing his findings.
3. Although there was no allegation in the
complaint concerning the statement by Williams to
Peterson, the Administrative Law Judge's 8(a)(1)
finding with regard thereto was properly made
because the matter was fully litigated at the hearing.
As this unfair labor practice occurred less than 6
months prior to the filing of the charge herein, we
find that it was not barred by Section 10(b) of the
Act.7
4. The Administrative Law Judge properly found
that Respondent engaged in the following conduct
which not only violated Section 8(a)(1) of the Act but
also precluded employees in the multistore and
warehouse units from exercising their freedom of
choice in selecting or rejecting the Union: interrogat-
ed employees concerning union sympathies by
asking if they signed union authorization cards and
were wearing union insignia; threatened employees
with loss of benefits, more onerous working condi-
tions, and termination if they continued to support
the Union; warned employees to stay away from
union supporters and organizers; and instructed
employees to wear antiunion insignia, to remove
prounion insignia, and to deal directly with Respon-
dent regarding working conditions rather than
selecting the Union as their bargaining representa-
tive.
Although the foregoing unfair labor practices were
directed only to employees in the stores, it is clear
that Respondent's unlawful conduct would tend to
discourage all employees in the Las Vegas area from
voting for the same Union which was on the ballot
for both units. As Respondent's unlawful conduct
was likely to have a coercive impact on the
employees in both units in the Las Vegas area, we
agree with the Administrative Law Judge that new
elections are necessary for both units so that they
may be conducted free from any unlawful or
objectionable conduct on the part of Respondent
against the Retail Clerks or its adherents in both
units.8 However, in the absence of any proof as to the
Union's majority in either of the units, we find no
merit in the Union's contention that a bargaining
order is warranted for the employees in both units.
6 Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (C.A. 3, 1951).
7 We find that Queen City Equipment Corp., supra, was improperly
invoked by Respondent as the Board in that case found it unnecessary to
pass on the 8(a)(l) finding and Respondent's opposition thereto.
I Contrary to our dissenting colleague, we deem Food Fair Stores of
Florida, Inc., 120 NLRB 1669 (1958), to be clearly distinguishable from the
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended; the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Vegas Village
Shopping Corporation, Las Vegas, Nevada, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the elections conduct-
ed in Case 31-RC-3222 on October 16, 1975, be, and
they hereby are, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER WALTHER, dissenting:
Although I agree with my colleagues that a second
election must be directed in the unit of selling and
nonselling employees, I disagree with their conclu-
sion that a second election is also necessary in the
separate and distinct warehouse unit.
The record reveals that Respondent's unlawful
threats and interrogations were directed exclusively
at employees in the selling and nonselling unit. While
such conduct clearly justifies setting aside the
election in that unit, it does not necessarily justify
setting aside the election in the warehouse unit which
the Union lost by an 18-to-3 margin. My colleagues,
however, summarily conclude that the warehouse
election must also be set aside because "it is clear
that Respondent's unlawful conduct would tend" to
interfere with the warehouse election.
The naked claim that a factual conclusion is
"clear" of course does not necessarily make it so, and
my colleagues offer nothing in support of their
clairvoyance. My reading of the record yields no
basis for concluding that the unlawful conduct in the
selling and nonselling unit was apt or likely to
interfere with the warehouse election. The warehouse
operation is separate and distinct from Respondent's
retail outlets. Nor is there any evidence pertaining to
transfers or other contacts between the employees in
the two units. In addition, the nature of the unlawful
conduct is not such as would readily give rise to an
inference that the statements made in one unit would
be communicated to employees in the other unit.
Respondent's antiunion campaign was not directed
against the Retail Clerks in particular, nor against its
officers or representatives, but rather against unioni-
situation herein. Thus, that representation proceeding, unlike the instant
consolidated unfair labor practice and representation proceeding, involved a
different union for each of two units and the employer's coercive conduct
was directed against only one of the unions and for the most part
concentrated on promises of wage increases for the unit employees sought
by that union.
280
VEGAS VILLAGE SHOPPING CORP.
zation in general. Had the attack been directed
against the Retail Clerks in particular, there might
logically be some basis for concluding that the
substance of Respondent's remarks would be tran-
smitted to the warehouse unit. Such, however, is not
the case.
This is not the first time that the Board has
addressed the issue raised herein. In Food Fair Stores
of Florida, Inc., 120 NLRB 1669, 1673 (1958),
separate elections were held in a unit of employees in
the meat department on the one hand, and in a unit
of apparel, drug, hardware, and snackbar employees
on the other. Although Respondent's objectionable
conduct occurred only in the meat department, the
Regional Director recommended setting aside both
elections. The Board reversed the Regional Director
stating:
[I]t can not be assumed that conduct which
directly involved only meat department employ-
ees and which interfered with their freedom of
choice necessarily had the same effect on the
employees in a different unit involved in a
different election. Accordingly, in the absence of
evidence that the conduct was directed against
any such employees, we find there is insufficient
grounds for setting aside the election in [the
apparel, drug, hardware, and snack bar unit].
In my judgment, the instant case cannot meaning-
fully be distinguished from Food Fair Stores. My
colleagues, unpersuasively in my view, seek to
distinguish Food Fair Stores on the basis that in that
case two unions were involved, whereas here the
same Union was seeking to represent the employees
in both units. I fail to see any significance at all in
this distinction, particularly in view of the fact that
Respondent's campaign was not designed to estab-
lish that the Retail Clerks, in contrast with a different
labor organization, was unfit to represent the
employees, nor do I see any meaningful distinction in
the fact that the 8(aX)(l) conduct there took the form
of unlawful promises while in the instant case it took
the form of threats and interrogations.
For the foregoing reasons, I do not agree with my
colleagues' decision to set aside the election in the
warehouse unit.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was heard at Las Vegas, Nevada, on September 14
and 15, 1976.1 The original complaint, issued on December
IAll dates hereinafter are within 1975. unless stated to be otherwise.
2 General Counsel moved during heanng to withdraw the allegations set
forth in pars. 6(e). (g). and (h) of the complaint. The motion was granted.
31, is based on an original charge filed on November 14
and an amended charge filed on December 29 by Retail
Clerks Union, Local 1536, chartered by the Retail Clerks
International Association, AFL-CIO, hereinafter referred
to as the Union. On October 20 the Union filed objections
to an election conducted on October 16 in Case 31-RC-
3222, involving the same parties as those herein. On
February 3, 1976, the Regional Director for Region 31 of
the National Labor Relations Board issued a supplemental
decision on objections and an order of hearing wherein the
aforesaid two cases were consolidated, since the issues were
related and they involved the same evidence. On May 4,
1976, said Regional Director filed an amended complaint
which alleges that Vegas Village Shopping Corporation,
hereinafter referred to as Respondent, violated Section
8(a)(1) of the National Labor Relations Act, hereinafter
referred to as the Act, as amended. Said two cases were
heard at Las Vegas, as aforesaid.
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
General Counsel, Respondent, and the Union.
Upon the entire record,2 and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Nevada, with an office and
principal place of business located in Las Vegas, Nevada,
where it is engaged in the retail grocery and department
store business. In the course and conduct of its business
operations, Respondent annually purchases and receives
goods or services valued in excess of $50,000 directly from
suppliers located outside the State of Nevada. In the course
and conduct of its business operations, Respondent
annually derives gross revenues in excess of $500,000.
I find that Respondent is, and at all times material herein
has been, an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local, 1536, chartered by the Retail
Clerks International Association, AFL-CIO, is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
I11. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent owns and operates seven stores and a
warehouse in the Las Vegas area. Haber Tobler (Tobler) is,
and since 1969 has been, Respondent's president, with
281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corporate offices in Store 3. Stores 1, 3, and 4 encompass a
department side and a grocery side.
Stores 1, 3, and 4 have management teams each
administered by a store manager. Each of those three stores
has an assistant store manager for the department side and
an assistant store manager for the grocery side. The
assistant store manager for the department side of the three
stores has seven supervisors, called department heads.
Stores 5, 6, and 7 are small-clothing stores. Each has a
store manager, with no assistant store manager or depart-
ment head. Store 8, called Builder's Village, has a manager
and an assistant manager, with no department heads. It
sells builders' supplies.
The warehouse has a manager.
All stores and the warehouse have employees in addition
to management personnel described above.3
The Union has represented the grocery clerks in Stores 1,
3, and 4 for several years, but the nongrocery clerks have
not been represented. Commencing in February 1975 the
Union began organizing all clerks (stores and warehouse)
other than grocery clerks, acting primarily through Doris
Low (Low), assisted by George Hartwell (Hartwell). Tobler
was aware, in the summer of 1975, that the organizational
campaign was being conducted, and in the early part of the
campaign two meetings were held by him to inform
managers and department heads about what they could
and could not do and say during the campaign. Tobler
attended one meeting, and was at the other meeting a few
minutes. Prior to the meetings Tobler talked with Lynn
Bunker (Bunker) of his staff, and Respondent's attorney,
about what was to be discussed at the two meetings. The
meetings were conducted by Bunker and attended by
Respondent's attorney. In addition to the two meetings,
Tobler and his staff frequently talked with managers and
department heads on an informal basis about what they
could and could not do and say. Tobler testified: "Of
course, our people were informed that they could not
interrogate people concerning how they felt or the way they
were going to vote .... "
The union election was conducted on October 16. Of
approximately 262 eligible voters in the selling and
nonselling unit, 244 cast ballots, of which 79 were for the
Union and 134 were against the Union, with 31 challenged
ballots. Of approximately 22 eligible voters in the ware-
house unit, 22 cast ballots, of which 3 were for the Union
and 18 were against the Union, with I challenged ballot. In
each election the challenged ballots are not sufficient to
affect the results of the election.
The principal issues herein are whether Respondent
violated Section 8(a)(1) of the Act, and interfered with the
election by interrogations, threats, and other actions prior
to and during the election of October 16. Each allegedly
illegal action is discussed below.
A. Alleged Statement of July 15
Paragraph 6(a) of the complaint alleges that, on or about
July 15, Truman Barlow (Barlow), store manager of Store
3 Respondent did not deny in its answer, hence admits, that the following
persons at times relevant herein were supervisors within the meaning of the
Act; their participation herein is discussed in the text of this decision: Gary
Pierce, Ray Williams, Bob Brown, Pauline Novak, John Gallifent, Betty
3, told an employee that no employees with union
experience would be hired until the union campaign was
completed.
Glen Petersen (G. Petersen) testified that he was
transferred from another store to Store 3 in early 1975, as a
salesman on an hourly basis plus commissions. He said he
periodically acted in the place of his supervisor, John
Gallifent (Gallifent), for short periods of time. 4 G. Petersen
said he was acting for Gallifent on July 15, while the latter
was on a l-week vacation, and at or about 8 a.m. on that
day Barlow paged all department managers by name, with
instructions to come to his desk. Store problems and
procedures were discussed, after which Barlow talked
about the Union and encouraged the department managers
"not to associate with the union people." G. Petersen then
testified:
The thing that shocked me a little bit was he went on
a little bit farther to say that he had applications
recently for employment and that all the applications
he had received in the last week and a half, the week
prior to this, had indicated that they had had union
experience or had worked in a place where there had
been a union, and considering the circumstances, he
would not hire anyone with that type of background.
The thing that kind of led into it, we were kind of
shorthanded in some of the departments, and they
needed some people hired.
The comment he made, I recall vividly, was: "I don't
care if we have to run with a skeleton crew; we won't
hire anyone who has had previous union or has worked
in a union place."
G. Petersen's pretrial affidavit and his testimony on
cross-examination varied somewhat from his testimony on
direct examination. He stated on cross-examination,
among other things, that he had the impression that Barlow
felt the Union was "behind the applications" and that
Barlow therefore was not going to hire those persons.
Barlow testified that he has not been employed by
Respondent since January 2, 1976. He said he regularly
held meetings with supervisors when he was manager of
Store 3, but he does not remember the conversation related
by G. Petersen, although it was possible that personnel
matters were discussed at the meeting to which G. Petersen
referred. Barlow stated that employees never were hired in
groups; that there was no discussion at supervisor meetings
about hiring people with union affiliation; that he asked no
applicant in July 1975 if that applicant was in favor of, or
opposed to, a union; that store applications ask for an
employment history but do not ask if the applicant is a
union member; that he did not, in July 1975, go through
the applications to see whether applicants had worked for
companies that had union contracts; and that he never told
G. Petersen he was not hiring people because they
appeared to come from a unionized company or had
previous union experience. Barlow testified that Store 3
was not shorthanded in July 1975.
Westover, Truman Barlow, Bob Mangum, Glade Brinkerhoff, Madge
Garrison, and Ed Van Bergen.
4 G. Petersen's employee status is discussed below.
282
VEGAS VILLAGE SHOPPING CORP.
Discussion
Respondent argues that G. Petersen was a supervisor at
the time of this incident. However, the record shows
otherwise. Barlow testified that G. Petersen was not a
supervisor in July 1975, but that he "would come in to
some of the supervisors' meetings" as a substitute. G.
Petersen testified that, at the times relevant herein, he was a
salaried salesmen and that he acted for Gallifent only to
the extent of seeing that the department continued to
perform while Gallifent temporarily was out of the store.
G. Petersen stated he had no authority to hire or fire
employees, to make transfers, or to set schedules, that he
acted only in accordance with instructions left with him by
Gallifent. G. Petersen's testimony on this point was not
challenged or contradicted. It is found that G. Petersen was
not a supervisor during July 1975.
Approximately eight persons attended the July 15
meeting, including one rank-and-file employee other than
G. Petersen (Nancy Beville). Barlow denied the statements
attributed to him by G. Petersen. Nancy Beville was not
called to testify, and no witness corroborated G. Petersen's
testimony.
The inherent improbability of the alleged statements is
apparent. It is not normal business practice for employ-
ment applications to show union affiliation or preference,
nor is it normal for retail businesses to hire in groups
especially in July. These abnormalities are highlighted by
Barlow's credited testimony that the normal rush times are
Christmas and just prior to school opening. Barlow also
credibly testified that Store 3 was not shorthanded in July
1975. Further, G. Petersen testified that Barlow said the
alleged applications originated with one employment
agency - Snelling and Snelling - but Barlow credibly
testified that he obtained employment applications from
several agencies.
Finally, there is the question of credibility. Barlow no
longer works for Respondent, and he was an impressive
witness. There is no apparent reason for him to color his
statements, and his testimony was straightforward and
given without hesitation. G. Petersen's testimony was not
of that calibre. Admittedly he was a strong union advocate
during July 1975. His testimony contains contradictions,
and some of it is contrary to his pretrial affidavit. Based
upon observation of the witnesses, their demeanor and the
nature of their testimony, Barlow is credited.
It is found that General Counsel did not prove this
allegation.
B. Alleged Interrogation by Novak
Paragraph 6(b) of the complaint alleges that, in July
1975, Respondent's agent, Pauline Novak (Novak), interro-
gated an employee concerning the Union.
Elmira North (North) testified that, in July 1975, she
talked about the Union with her then supervisor, Novak, at
North's work station where she was a sales clerk in Store 4.
North testified:
5 The date was amended at heanng upon General Counsel's motion,
granted by the Administrative Law Judge.
She had been to a meeting and she came over to me
and she says, "I want to get this over with." She says,
"What do you think about the Union," and I told her I
was very happy where I was and that was the extent of
the conversation.
Discussion
Novak did not testify. Respondent's witness Gary Pierce
(Pierce), manager of Store 4, testified that he was informed
Novak could not appear as a witness because of illness.
Pierce also testified that he had informed Novak and other
department managers in May that they were not to
question employees about union matters.
Determination of this allegation thus depends upon
assessment of North's credibility. That credibility amply
was demonstrated by North's appearance on the witness
stand. She testified in a convincing manner, and was firm
on cross-examination. Her testimony is credited.
Assuming, arguendo, that Pierce gave instructions to
Novak as he testified, there is no basis upon which to find
that Novak would not, or could not, make the statement
attributed to her.
This is not an isolated, trivial piece of "shop-talk" as
asserted by Respondent. Against the background of
admitted management knowledge of union activity, and
attempts by management to obtain a vote favorable to it,
apparent throughout the record, it is clear: (a) Novak's
statement illustrates management's efforts to obtain a
favorable vote, and (b) Novak's statement prima facie is
coercive.
It is found that the record supports this allegation.
C. Alleged Interrogation by Gallifent
Paragraph 6(c) of the complaint 5 alleges that, on
September 16, 1975, Gallifent interrogated an employee
about his vote in the impending election.
This allegation involves G. Petersen, who first testified
that, on an uncertain date but "I know it is within three or
four days of the election date" (note: the election was held
on October 16), Gallifent was standing near Petersen and
another employee, David Reese (Reese). According to G.
Petersen, Gallifent turned to him and said, "Well, I guess I
know which way you are going to vote on the election don't
I," to which G. Petersen allegedly replied, "Well, maybe
you do" or something similar; Gallifent said "Well, you are
going to vote 'yes,' aren't you," and G. Petersen shook his
head "yes."
After being shown his affidavit, G. Petersen changed his
testimony and said the conversation occurred on Septem-
ber 16, and that he was alone with Gallifent. G. Petersen
went on to explain that the first conversation he had
reference to, when Reese was present, occurred "three or
four days previous to the election," and that, before
Gallifent questioned him, Gallifent asked Reese, "How are
you going to vote on this union thing, Dave," to which
Reese allegedly replied, "Well, you know how I feel, John,"
and at the same time nodded his head yes.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later in his testimony G. Petersen said he "vividly"
recalled the October 16 conversation attended by Gallifent,
Reese, and Petersen.
Discussion
G. Petersen first having testified that he knew the
alleged conversation occurred 3 or 4 days prior to October
16, the later change to September 16 casts doubt upon the
conversation itself. That doubt is intensified by the fact
that the alleged Petersen-Reese-Gallifent conversation,
said to have taken place 3 or 4 days before the election, is
not in G. Petersen's affidavit and is not the basis for any
allegation in the complaint. Further, this latter testimony
must be assessed against G. Petersen's testimony that he
"vividly" recalled the Petersen-Reese-Gallifent conversa-
tion.
There is no question but what management knew, prior
to and on September 16, that G. Petersen was one of the
principal union organizers. Further, according to the
testimony of employees of the snack bar, "vote yes"
buttons were worn by most or all of the counter girls since
August. Finally, G. Petersen testified that he wore a "vote
yes" button from time to time and "probably" was wearing
one during the alleged Petersen-Reese-Gallifent conversa-
tion. Reasonably it may be inferred that, on September 16,
either G. Petersen wore a "vote yes" button, or his views
were well known to Gallifent. Under such circumstances,
the alleged conversation of September 16 could not be
considered coercive. 6
However, regardless of the nature of the alleged
conversation, there is too much doubt about it ever having
occurred to warrant finding a violation of the Act. That
doubt is based upon the above summary, and the general
lack of persuasion of G. Petersen's testimony, discussed
elsewhere.
It is found that this allegation is not supported by the
record.
D. Alleged Threat by Westover
Paragraph 6(d) of the complaint alleges that, on or about
August 29, Betty Westover (Westover) interrogated an
employee about the Union and threatened loss of econom-
ic benefits if the employee supported the Union.
This allegation involves Ruth Beisser (Beisser), a clerk at
Store 3, whose supervisor during the time relevant herein
was Westover. Beisser testified that, on August 29,
Westover came to her work station and the following
conversation ensued:
Ms. Westover came in and said to me the attorneys
and management were going to have a meeting on
Thursday, and management had told her to ask me how
I felt about the Union question.
"Are you for the Union or against the Union?" she
asked me. I replied, "Betty, I don't believe you should
ask a question like that. I am entitled to secret
election."
She said anyway, management wanted to know what
you would lose if the Union got in. You would lose
your discount; you would lose the pension plan; you
would have a different health plan and you would no
longer be able to go to Mr. Barlow, he was at that time
the manager.
You would no longer be able to ask Mr. Barlow for
special favors such as a day off or change of schedule.
Instead you would have to go to Glen Petersen.
Q. Who is Glen Petersen?
A. Yes, that is what I asked her. She said Glen
Petersen is a clerk in the radio television department.
She said, "Well, Glen has been promised that he will be
the Union steward if the Union gets in."
I said, "Betty, you know that simply isn't true."
She said, "Well, anyway, I want you to know how
much we have appreciated your work in the depart-
ment; I think you have improved the jewelry section;
we value your services."
I replied that I thought she was a good supervisor;
that I felt kindly towards management, but that I was
keeping an open mind on this Union problem.
Westover testified that she had been told by Barlow that
she could not interrogate employees about union activity,
and she denied the interrogation and threats attributed to
her by Beisser.
Discussion
Westover's principal reliance for credit is based upon her
contention that she had been instructed by management as
outlined above, and that she had no authority to tell an
employee that union success would result in loss of store
purchase discounts.
So far as management instructions are concerned,
Westover said she received them a little more than a
month, and probably 6 weeks, prior to the election. That
date would be about September I or 16; the conversation is
alleged to have taken place on August 29. Westover stated
that, prior to receiving the instructions, there "wasn't too
much" union activity. Finally, Westover acknowledged
talking with Beisser about the Union. It seems entirely
possible, therefore, that Westover received instructions
from management after her talk with Beisser, and that she
talked with Beisser during the time when the record shows
the organizing campaign was heating up. However,
whether she received such instructions is immaterial. Her
statements, and not her instructions, are in issue.
So far as her authority is concerned, the question is what
Westover did or did not say, not whether she had actual
authority to remove benefits. When she spoke as a
supervisor within the scope of her duty, she spoke for
management, even if the subject of her conversation was
one for management decision. She had apparent authority
to speak, and she did not say that she was only voicing her
opinion. What she is alleged to have said constituted a
threat.
Beisser was a convincing witness who gave her testimony
in a calm and dispassionate manner. She appeared sincere
6 Petersen presently is a department manager at Store 1.
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VEGAS VILLAGE SHOPPING CORP.
and truthful, and there is no apparent reason to doubt her
statements. She is credited and, based on her testimony
and the above summary, it is found that this allegation is
proved.
E. Alleged Interrogation by Novak
Paragraph 6(f) of the complaint alleges that, in Septem-
ber 1975, Novak interrogated an employee about her union
activities.
Violet Woehl (Woehl) is the employee involved in this
allegation. Woehl, who still is employed by Respondent,
was a clerk at Store 4 in 1975. Woehl testified that she
talked with Novak, her supervisor, about union activities
approximately the middle of November. Woehl testified
she was at her work station when Novak approached her.
Woehl stated:
She asked about how I felt about the Union, and I
told her no one had ever approached me from the
Union except to sign a card, I really didn't care to
discuss my view about the Union.
Discussion
Woehl was a sincere, calm witness who gave her
testimony in a straightforward and convincing manner. She
is credited.
The situation concerning Novak's failure to testify, her
instructions from management, and the nature of her
remarks apply equally here, as in the situation discussed in
paragraph B above.
This allegation was proved by General Counsel.
F. Alleged Warning by Gallifent
Paragraph 6(i) of the complaint (as amended) alleges
that, on or about September 1, Gallifent warned an
employee to stay away from any employees supporting the
Union and to stay away from union organizers.
This allegation involves Teresa Petersen (T. Petersen),
wife of G. Petersen. At the time involved herein her name
was Teresa Tuck. She was employed at Store 3 as a clerk
from September until December 1975. Her supervisor
during the early part of her employment was Gallifent, and
later was Jack Casler.
T. Petersen testified that, when she applied for a job at
Store 3, she first talked with Barlow, who then sent her to
talk with Gallifent. She stated that, after a brief interview
and a tour of the department, Gallifent took her into the
back room, where the following conversation took place:
He then said that as of right now they are bringing
the Union people into the store; he said there will be
some sitting at the snack bar; there was a good portion
of the employees that did not want them in and he
advised me at that time to try to stay away from them
in the snack bar, around that vicinity.
Now, the exact words - it's been a year ago; I really
couldn't say the exact words.
Although she was not on the payroll at the time of the conversation, T.
Petersen was an applicant for employment and thus was an employee for the
purposes of the Act.
Q. As best you can remember, he told you to stay
away?
A. Yes, he told me the snack bar is where they
would try to talk to me and that lasted maybe five
minutes, six minutes.
After the talk by Gallifent, T. Petersen was taken back to
Barlow, who hired her starting the following day.
Discussion
Gallifent did not testify.
Although possibly it could be argued that the warning
allegedly given to T. Petersen was one not to use company
time for union purposes, the record does not support such
an argument. No rule against solicitation was shown, nor is
the warning limited to work time. The record shows that
the snack bar commonly is used by employees for coffee
and meal breaks. It is apparent that the alleged warning
was intended to keep T. Petersen from talking with union
representatives, and that it is coercive per se.
The only question, therefore, is whether T. Petersen's
testimony is to be accepted. Based upon her appearance
and demeanor as a witness, and absent any contradictory
testimony, she is credited. 7
The record supports this allegation.
G. Alleged Statement by Gallifent
Paragraph 6(j) of the complaint alleges that, on or about
September 2, Gallifent told an employee that working
conditions would become more onerous if the employees
selected the Union as their representative.
This paragraph also involves T. Petersen, who testified
that she talked with Gallifent at Store 3 the first day she
worked for Respondent, on September 2. She said Gallifent
pointed out "a few of the union representatives" and:
And he says for me, it would be wise to stay away
from them. I don't know if it was at this point where he
said that it was a comfortable store, a good position to
work in, everyone is really friendly, but as soon as they
are in, there will no more be a one-to-one person; you
will have to go through different channels as the total
attitude would completely change.
It would no longer be comfortable.
Q. Did he clarify what he meant at all?
A. Just that - that he didn't want it in and there
were other people that felt the same way, they didn't
want this uncomfortable feeling; they wanted a more
family atmosphere. This is what they had.
Q. He said the Union would change that?
A. Yes.
Discussion
Gallifent did not testify, and T. Petersen is credited
above. It is clear that this converstaion is a continuing
attempt by Gallifent to influence a new employee through
coercion and pressure, and to dissuade her from union
activity.
285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The allegation is proved.
H. Alleged Threat by Williams
Paragraph 6(k) alleges that, in September 1975, Williams
threatened an employee with termination or more onerous
working conditions if the Union were selected by the
employees as their collective-bargaining representative.
George Raymond Williams (Williams) is, and has been,
assistant store manager of Store 3 at all times relevant
herein. T. Petersen testified that Williams took her into the
employees' lounge about 2 weeks after she started working,
and talked with her in a private conversation. T. Petersen
testified:
Okay. He kept further asking me if I had talked to
them, if I had signed the card, if I was going to vote no
or how was I going to vote, and he kept stressing the
point that I am now working in a comfortable situation,
that if I do vote yes, or if it happens the Union goes in,
he says it would not be your comfortable situation any
more.
T. Petersen testified that Williams took her aside during
working hours on an occasion later in September, and:
Yes, and Mr. Williams took me aside again and this
was after, I believe, this was after I was on the check
stand because it was showing that I was more turning
to the Union side and I wasn't hiding it.
And he took me aside and said, "I hope you know
what you are doing."
He told me that being with Glen -
Q. Glen is your husband?
A. My husband. At the time we were not married,
and he told me that I shouldn't be with him, and he
kept - he was upset with me because he had found out
I had gone out.
I had gone to lunch with a Union representative, and
he had found out about it, and he suggested that I stop
seeing these people because I was ruining my chances
of promotion, you know.
Williams testified that he frequently talked with employ-
ees, including T. Petersen, and assisted in training store
employees, but he denied T. Petersen's allegations and
statements set forth above. Williams said he had no
authority to state that T. Petersen could lose benefits and
promotion opportunities if the Union got in, and that
"management was instructed on what we could do and
what we couldn't do."
Discussion
Resolution of this issue does not depend upon Williams'
authority over benefits and promotions, nor upon manage-
' The complaint does not allege that Williams asked T. Petersen if she
had signed a union authorization card, but T. Petersen testified that
Williams did so question her, to which she replied no. She further testified:
He had told me they had been pleased with my work, my
performance, and that I was working with some great people and they
were good to work with, and that if I had signed a card or continued
supporting the Union, that the friends I had made would turn against
ment instructions. The only question is whether Williams,
as a supervisor, made the alleged statements to T. Petersen.
Those statements clearly are coercive, if made.
Based upon observation of the two witnesses and their
demeanor on the stand, T. Petersen was the more
convincing. It is recognized that she but recently married
one of the principal union activists involved herein, and
that she was engaged in a common cause with him and
may have some bias; however, T. Petersen appeared
straightforward and truthful, and there is no compelling
basis upon which to doubt her testimony. She is credited,
and it is found that this allegation is proved by the record.8
I. Alleged Interrogation and Instructions by
Gallifent
Paragraph 60) of the complaint alleges that, in Septem-
ber and October, Gallifent interrogated an employee about
her union sympathies and instructed her to wear a "vote
no" badge. She testified that Gallifent asked her at least
once each day how she was going to vote in the union
election. T. Petersen also testified that the following
incident occurred the latter part of September:
Q. Mr. Gallifent -
A. He came over; he handed me a red sticker that
had "Vote No" on it. And he handed it to me.
He said, "Here, I want you to wear this."
I was busy and I stuck it into my pocket and I said,
okay, and I went right back to what I was doing.
I did not have it on and maybe an hour to an hour
and a half later, he came back over and noticed I was
not wearing my badge.
And he said, "How come?" And I said, "I just
haven't had time to put it on."
He kept after me and I finally told him I had lost it,
which I had, I had thrown it away. I told him I had lost
it; he handed me another one.
Discussion
As discussed above, Gallifent did not testify and T.
Petersen is credited. The activities of Gallifent outlined by
T. Petersen are coercive and clearly contrary to the Act.
This allegation is proved.
J. Alleged Interrogation by Mangum
Paragraph 6(m) of the complaint alleges that, in early
October 1975, Mangum interrogated an employee about
her proposed vote in the union election.
This allegation involves Debra Price (Price), a counter
girl at the snack bar of Store I during the period of time
relevant herein. Price testified that, in late September 1975,
she talked at the snack bar with Bob Mangum (Mangum),
me, or I could no longer find interest in them; it would all around me
just become miserable.
Williams denied asking T. Petersen if she had signed a union authonza-
tion card.
This subject was fully litigated, and T. Petersen is credited. An 8(aX
1)
violation by interrogation is found.
286
VEGAS VILLAGE SHOPPING CORP.
store manager of the grocery side at Store 1. The snack bar
is part of the grocery side of the store. Price testified:
Well, at the time I was wearing a "vote yes" button
and he saw it, and he said, "So you are voting for the
union?"
And I said, "Yes," I was.
Q. Did he say anything after that?
A. No.
Q. How long did the whole conversation last?
A. I'd say about 30 seconds.
Mangum testified that he never asked Price prior to the
election how she planned to vote in the union election.
Discussion
A credibility resolution on this issue is not necessary
since the remark, even if made, could not have been
coercive nor could it have been an interrogation about how
Price planned to vote. It is clear from Price's testimony that
Mangum's statement was no more than an observation of
an obvious fact. Price was wearing a "vote yes" button at
the time and manifestly did not feel any necessity to secrete
her feelings. She could not be coerced at that point, and
Mangum's remark showed that he recognized Price's
display of the button in the manner she intended. She
wanted everyone, including Mangum, to know how she
felt. It is reasonable to infer that Price was pleased, rather
than apprehensive, when Mangum acknowledged that he
had received her message. Further, the record shows that
Mangum said nothing prior to or after the conversation,
and that the 30-second incident was wholly isolated in
nature.
Under such circumstances, Mangum's testimony that he
did not ask Price how she planned to vote in the election is
factual and is credited. Mangum's testimony that he did
not recall seeing Price wearing a "vote yes" badge at the
time of the incident is immaterial. First, he said he was not
sure whether or not he saw the badge. Second, Price and
other witnesses testified that all snack bar employees wore
"vote yes" badges. Third, any doubt raised by this
equivocal portion of Mangum's testimony must be resolved
against Price, since she is the claimant and her claim is
grounded upon her testimony that she was wearing the
badge.
The record does not support this allegation.
K. Alleged Threat by Brinkerhoff
Paragraph 6(n) of the complaint alleges that, in October
1975, Glade Brinkerhoff (Brinkerhoff) threatened an
employee with changed working conditions should the
Union be selected by the employees as their collective-
bargaining representative.
This allegation involves Price and Brinkerhoff, who was
manager of the department side of Store I at times relevant
herein. Price said she talked with Brinkerhoff at the snack
bar after she had punched out on a date shortly prior to the
election. Price stated:
Somehow we got to talking about the election, and he
said, "Just think about all the headaches you will have
if the union gets in."
And I said, "It couldn't be any worse than what it is
now."
He just shook his head and walked off.
Q. Was anyone else present during this part of the
conversation?
A. No.
Q. How long did this conversation last?
A. No longer than a minute.
Brinkerhoff testified:
I don't recall talking to the snack bar employees at
all about the union.
Q. Not even during the course of a conversation?
A. They were not under my jurisdiction.
Q.. Do you remember saying anything to Miss Price
about the headaches if the union got in or there would
be a lot of headaches or anything like that?
A. I don't even remember Debbie Price; I don't
recall the conversation at all.
On cross-examination Brinkerhoff testified about Price "I
don't recall her at all." He also stated that he did not eat
meals at the snack bar, but that "occasionally" he took
breaks there.
Discussion
The circumstances under which this alleged incident
took place do not instill confidence in Price's testimony.
Brinkerhoff was manager of the department side of the
store, with no authority over, or business relationship with,
the snack bar. The conversation allegedly took place after
the snack bar was closed at night, when ordinarily
Brinkerhoff would not be there for any reason. Price only
stated the conversation was with Brinkerhoff; she made no
further identification, nor did she explain why she knew
Brinkerhoff, or why Brinkerhoff was at the snack bar at
such an unusual hour, after the counter was closed and
chairs were being placed on top of the counter. Brinkerhoff
was an impressive witness, who testified in a convincing
manner and who is credited. He stated that he did not
recall Price "at all," which is consistent with the record
showing that Brinkerhoff had no managerial relationship
with the snack bar. There is no apparent reason, nor can
one be inferred from the evidence, why Brinkerhoff would
come to the snack bar after it was closed to engage an
employee he did not know and with whom he had no
business relationship, in a conversation about the Union.
The alleged incident is too inconsistent with normal
conduct to be credited without corroboration.
It is found that the evidence does not provide support for
this allegation.
L. Alleged Threat by Brinkerhoff
Paragraph 6(o) of the complaint alleges that, sometime in
September 1975, Brinkerhoff threatened an employee with
trouble for supporting the Union.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This allegation involves Dolores Stevens (Stevens), who
at times relevant herein, worked as a counter girl at the
snack bar of Store I. Stevens testified that, on a date she
thinks was in September 1975, she was talking with Theresa
Smith (Smith), a store employee, in the snack bar area.
Stevens said she was talking about the Union and
mentioned George Hartwell's name. When she said "He is
a union representative," Brinkerhoff, who was passing by,
walked up and stated "You are messing with trouble."
Brinkerhoff then was paged and had to leave, after looking
at Smith "kind of funny."
Brinkerhoff said he knew Stevens and Smith, but he
denied Stevens' allegation. He said he did not recall ever
seeing Smith and Stevens talking together, nor did he recall
Stevens ever talking about Hartwell.
Q. Did you ever ask any employees why they were
wearing a Vote Yes or Vote No button?
A. Not to my knowledge, no.
Q. Did you ever tell an employee to take the Vote
Yes button off?
A. No, sir, absolutely not.
. * *
Q. Did you ever tell Delores Stevens that you
thought it was ridiculous for her wearing a Vote Yes
badge?
A. Absolutely not, no sir.
Q. Did you ever ask her to take a badge off?
A. No, sir.
Discussion
Smith was not called to testify. Stevens was not an
impressive or convincing witness. Her testimony sometimes
was confused and contradictory. 9 Brinkerhoff had no
business relationship with Stevens, and there is no apparent
reason for him to be in the snack bar area during working
time.
Resolution of this issue is possible only by assessment of
credibility. Based upon observation of the witnesses and
their demeanor on the stand, in the absence of corrobora-
tion of Stevens' testimony, and in view of the circumstanc-
es of the alleged incident, Brinkerhoff is credited, and it is
found that General Counsel did not meet his burden of
proving this allegation.
M. Alleged Instruction by Mangum to Remove a
Prounion Badge
Paragraph 6 (p) of the complaint alleges that, in Septem-
ber or October 1975, Mangum instructed an employee to
remove a prounion badge.
This allegation involves Stevens, who testified that, about
a week before the election, Mangum came to the snack bar
to eat lunch. Stevens said she was wearing her "vote yes"
badge at the time, and she testified:
He told me it was ridiculous for me to wear that
because we weren't going to win anyway.
I just looked at him and I fixed his hamburger and
he asked me to take it off.
Q. Did you take it off?
A. No, I didn't.
Q. Did he say anything else after that and during
the rest of the meal?
A. No.
Mangum testified:
Q. Did you ever ask her - do you recall if she was
wearing a Vote Yes or Vote No button?
A. I do not recall; I have given it a great deal of
thought and I cannot recall seeing it either way.
9 For example, initially she said Brinkerhoff was "just passing by" at the
time of the incident, and she later stated he had been standing there "but
Discussion
Mangum's area of responsibility during relevant times
included the snack bar, which he frequently patronized and
which he administered through a supervisor, Helen Lyons
(Lyons). His presence at the snack bar and a conversation
with Stevens would be consistent with his position in Store
I. Respondent contends that all management personnel
were instructed concerning what they could not do during
the union organizational campaign, and argues therefrom
that such personnel either could not or would not commit
the violations ascribed to them. However, as pointed out
above, that argument is not controlling. The only question
is whether or not the statements were made as alleged.
There is no corroboration for Stevens' testimony, hence a
credibility choice is necessary. The testimony of both
Stevens and Mangum leaves much to be desired; neither
was totally convincing. However, in view of Mangum's
position in the Company, the sharpness of the campaign,
the obvious desire of Respondent to have a nonunion
department store and snack bar operation, and based upon
observation of the witnesses and their demeanor, Stevens is
credited.
Respondent argues that Mangum should be credited
because he "took a demotion" before he testified and
therefore "had a reason to 'get even' " with Respondent, if
anyone did. However, this argument is invalid since, as
Mangum testified, he "took a demotion . . . because I
wanted more personal life of my own."
It is found that the record supports this allegation.
N. Alleged Threat by Garrison
Paragraph 6(q) of the complaint alleges that, on or about
October 2, Madge Garrison (Garrison who at times
relevant herein was variety department manager at Store 1)
instructed an employee to remove a prounion badge.
This allegation also involves Stevens, who testified that,
about a month or 6 weeks prior to the election, she was
talking with Carol Jackson (Jackson), a fellow employee,
near the cosmetics counter on the department side of the
store. Stevens said she had gone over to see Jackson to talk
about the Union, and the two of them started to go to the
snack bar on Jackson's break. Stevens said Garrison, who
not very long." Further, Stevens could not remember the words Brinkerhoff
used.
288
VEGAS VILLAGE SHOPPING CORP.
had heard some of her conversation with Jackson, and who
was Jackson's supervisor, stated as Stevens and Jackson
started to leave that, if Jackson voted for the Union or got
involved with the Union, she was sure to be fired.
Garrison denied that she ever told Jackson in Stevens'
presence that, if the Union got in, Jackson was sure to be
fired.
Jackson did not testify.
Discussion
The situation in this instance is much like that in
paragraph 6(p) above. Garrison was Jackson's supervisor,
and part of the defense to this allegation is the contention
that management's instruction precluded Garrison from
making the alleged statement. Further, neither the testimo-
ny of Stevens nor Garrison instilled a great amount of
confidence, and Stevens' testimony was not corroborated.
However, based upon the general situation at Store 1,
outlined above, and upon observation of witnesses and
their demeanor, Stevens is credited, and it is found that the
allegation is proved. It appears most likely that Garrison
made the statement attributed to her, or that she made
some similar statement to Stevens and Jackson.
The fact that the statement was directed to Jackson is
immaterial, since Stevens heard the remark and Garrison
represented management. The coercive effect of the
statement would be as profound on Stevens as on Jackson.
The defense relating to instructions is discussed above.
O. Alleged Statement by Van Bergen
Paragraph 6(r) alleges that, in late August 1975, Edward
Van Bergen (Van Bergen, who at times relevant herein was
supervisor of the sporting goods department of Store 3)
instructed employees to deal with Respondent directly
regarding work-related problems, rather than to select the
Union as their bargaining representative.
The employees involved in this allegation are Susan
Turco (Turco, who was employed at times relevant herein
as a snack bar counter girl at Store 3) and Mary Lou
Jennings (Jennings, who at times relevant herein also was
employed as a snack bar counter girl at Store 3). Both
employees testified to incidents involving Van Bergen,
alleged to have occurred in August and September 1975, at
the snack bar.
Turco testified that she and Van Bergen sat next to each
other at the snack bar counter in September, and that the
following occurred:
Well, when he had come back to the snack bar I,
fooling around, said, "What do you want?"
He got a little mad and then he came over and
apologized.
Q. How do you mean he got mad?
A. Well, he said, "Oh, you always say that when I
come up here," something like that.
But, you know, I was only fooling around. He came
over to me and apologized and then he started to say
something about you girls at the snack bar really do a
0O At the time involved herein Jennings was acting as manager of the
snack bar on a temporary basis. There is no evidence of supervisory status,
good job here and you should work out your differenc-
es with management and not bring the union into it. So
I didn't say anything, I just sat there and listened.
Turco said Van Bergen made the same general statement
"about three times," rephrasing it differently each time, but
meaning the same thing.
Jennings 0 testified that Van Bergen came to the snack
bar in August, as he usually did on his breaks and at meal
time, and that she was wearing a "vote yes" badge at the
time. She stated:
He said, "Don't you think you girls would be better
off speaking to the company and trying to work out
your problem that way instead of going to the union?"
I told him I didn't speak about the union while I was
working.
Q. Then what did he say?
A. He said, "Well, the union is no good, anyway."
Van Bergen testified that he went to the snack bar on
break and for lunch "quite often," but that he did not
remember Jennings or Turco. He testified that he talked
with employees of the snack bar about the Union on one
occasion. He stated:
Q. Did you talk with the employees at the snack
bar?
A. One time I did, and I don't recall whether it was
any of these people that you mentioned, but they were
all wearing their little badges, Vote Yes, and I didn't
say why are you wearing it or anything. We just got in a
conversation, and they told me, they said, well, we are
unhappy with this and with that in general; one of
them, not all of them. And I said, what are you
unhappy about, why don't you talk to your bosses. Go
talk to them, see what they say and use your own mind.
I said, you are wearing that button and you have got a
right to wear it, wear it all you want, think nothing of it,
but if you have got something that is bothering you, go
talk to your immediate boss, supervisor.
Q. Do you remember how the conversation start-
ed? Did you start it?
A. No, I think it was somebody else, just one of
those little bull sessions that you get into that you can't
say how it started or how it ended; you just can't put
your finger on it.
Van Bergen also said he had been instructed by manage-
ment relative to what supervisors could and could not do
during the campaign, and that he followed those instruc-
tions "to the letter."
Discussion
Turco and Jennings gave the impression of being sincere,
truthful witnesses. Their appearance and demeanor on the
and it is found that Jennings was a rank-and-file employee at the time of this
incident.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stand were impressive and instilled confidence in their
testimony. They are credited.
The statements made by Van Bergen were made in the
midst of a union campaign and were addressed to
employees on duty. Although Van Bergen was not their
supervisor, he was a known supervisor and he frequently
took his breaks and lunch periods at the snack bar. His
statements clearly were an attempt to undercut the Union
by encouraging employees to deal directly with manage-
ment, and they were coercive by reason of his position as
well as by the nature of the remarks.
The fact that he had been instructed by management
relative to union activity is immaterial, as discussed above.
This allegation is supported by the evidence.
P. Alleged Interrogation by Williams
Paragraph 6(s) of the complaint alleges that, in Septem-
ber or October 1975, Williams asked an employee why she
was wearing union insignia.
The employee referred to in this allegation is Judy Boyer
(Boyer), a snack bar counter girl at Store 3 during the time
relevant herein. Boyer testified that she talked with
Williams in August 1975 when Williams was eating at the
snack bar. She stated:
We were talking. He come up and asked me, "Why
are you wearing the 'vote yes' button?"
And I didn't answer him. I just said, "Why are you
wearing the 'no' button?"
And he didn't answer me.
Q. Was he wearing a "vote no" button?
A. Uh-huh.
JUDGE STEVENS: Answer yes or no, please.
THE WITNESS: Yes.
Williams testified:
Q. During the course before the union election,
were some of the employees in the snack bar wearing
Vote Yes buttons? Do you recall?
A. I think most or some of the gals or men, either
one, were wearing union Vote Yes buttons.
Q. Did you ever ask any individual why he or she
might have been wearing a Vote Yes button?
A. I don't know. Here again, I would have no
reason to be asking unless I wasjust curious.
Discussion
Williams did not deny the alleged statement; he only
stated "I don't know" when asked if he made it. Based on
Boyer's appearance and demeanor on the stand, she is
credited.
The only question is whether the statement was coercive.
The question was asked at the height of the union
campaign, by a person known to Boyer as a supervisor.
Although no conversation followed the question, Boyer
had no way to know that before the fact and, further, the
question being propounded by a representative of manage-
" Electrical Wheel Company, Division of The Firestone Tire & Rubber
Company, 120 NLRB 1644, 1646(1958).
12 Larkwood Farms, a Division of the Pillsbury Company, 178 NLRB 226
(1969).
ment, it had to be considered a challenge. The remark was
not an idle observation, nor was it made in a joking
manner. The belligerency apparent in such circumstances
was coercive, and this allegation is proved.
Objections to the Election
I. Objection I states:
The Employer performed acts of coercion and duress
upon voting employees.
In view of the findings herein, it is found that the
conclusions stated in this objection are supported by the
evidence.
2. Objection 2 was withdrawn.
3. Objection 3 states:
The Employer allowed certain employees, supervisors
and managers, to wear information on buttons worn
during voting hours. Said buttons told employees not to
vote for the union.
Primarily involved in this objection is conduct testified to
by G. Petersen, a union observer at the election. He stated
that six employees from the accounting office voted in the
election and that each of those employees had a handwrit-
ten document pinned on his back displayed while voting.
The document was entitled "My Reason for Voting No"
and contained a short statement. Petersen testified that he
was able to read the signs from his station as an observer,
and that the print was large enough to be read throughout
the polling room. He also testified that at the bottom of
each document were the words "Vote No."
There is no evidence that any observer or any other
person objected to the signs at the time of the voting nor is
there any evidence that Respondent made the signs or
knew anything about them in advance of the voting.
Generally, the wearing at polls by observers of buttons or
other insignia bearing the name of a union is not
prejudicial to the fair conduct of an election." The impact
on voters is not materially different whether the observers
wear prounion or antiunion insignia. 12 Further, an employ-
er may not unduly restrict permissible union activity
during the critical 24-hour period prior to the election.13
Factual situations differ in many instances. In McKibbon
Brothers, Inc., d/b/a Mar-Jack Poultry Company, 123
NLRB 1571 (1959), the employer closed down its opera-
tions one-half hour before voting on election day, and
some employees walked around the plant at such time
wearing handmade paper hats lettered with words "Vote
No." An objection to the election on this ground was found
to be without merit. In Delaware Mills, Inc., 123 NLRB 943
(1959), an employee, whose vote had been challenged, was
required to sit at the polling place. She wore a coat, which
was unbuttoned, revealing a T-shirt which bore the printed
letters "IWUA," and on her coat she wore a button with
words "Vote Yes." An objection primarily based on this
behavior was overruled, the Board finding that her
13 Gamble-Skogmo, Inc., d/b/a Tempo Discount Center, 226 NLRB 40
(1976).
290
VEGAS VILLAGE SHOPPING CORP.
presence, "even if she in fact waved and smiled at the
voters," did not tend to so influence the voters as to
warrant setting aside the election. In Sewanee Coal
Operators' Association, Inc., 146 NLRB 1145, 1147 (1964),
the Board held that the presence of a crowd or a massing of
voters at the entrance to the polling place and placard-
electioneering by unidentified persons on behalf of a union
in the area outside the polls, standing alone, did not impair
the exercise of free choice in the election. The wearing of T-
shirts by union observers, bearing the union name and
emblem in such a manner as to be visible to the voters, and
the congregating of persons in an area of the polls during
the election wearing the same type shirts were raised by
way of objection in R. H. Osbrink Manufacturing Company,
114 NLRB 940 (1955), but found without merit. The Board
has consistently held that wearing stickers, buttons, and
similar campaign insignia by participants as well as
observers at an election is, without more, not prejudicial.
See also Furniture City Upholstery Company, 115 NLRB
1433(1956).
A distinction must be drawn between the situation
involved in the above cases and one in which the employer
makes badges or other campaign insignia available to
employees.
Illustrative of the latter is Macklanburg-Duncan Compa-
ny, 179 NLRB 848 (1969), where the employer not only
utilized its supervisory personnel in furtherance of its
campaign by having them wear buttons and T-shirts
displaying proemployer and antiunion propaganda, but
intended via the supervisors to make the antiunion
materials readily available to employees who, by electing
whether or not to wear them, would disclose their
respective choices. The Board found such tactics consti-
tuted unlawful interference with the election. See also
Garland Knitting Mills of Beaufort, South Carolina, Inc., 170
NLRB 821 (1968), enfd. in material part 414 F.2d 1214
(C.A.D.C., 1969); The Chas. V. Weise Co., 133 NLRB 765
(1961).
It appears, therefore, that the only distinction between
this case and those wherein the Board has found that the
wearing of insignia at the polling place is not objectionable
is that here, the reason for the six employees' "no" vote was
spelled out on the signs in a short statement.
There is no apparent reason to consider the short
statements on the signs to be any more forceful or
persuasive than the message "vote no," which clearly is
allowable in the voting area. Of interest is G. Petersen's
reaction to the signs. He testified "... I thought it was
kind of humorous at the time then."
It is found that this objection is without merit.
4. Objection 4 states:
The Employer informed the employees that certain
benefits would be eliminated if the Union won the
election; namely, employee discounts and insurance.
This allegation is also made in paragraph 6(d) of the
complaint, discussed above. It was found that Westover
threatened Beisser with loss of benefits, thus any remedy
recommended for this Objection 4 is embodied in the
remedy for the 8(a)(1) violations found herein, and for
objection 1.
Apparently this objection refers to alleged statements by
Tobler, in addition to those of Westover. Tobler testified
that employees in the department side of the stores are
given discounts on the purchase of merchandise, amount-
ing to 10 percent after 6 months of employment, with
increases thereafter to a maximum of 20 percent after 2
years. Grocery rank-and-file employees receive no dis-
count. Respondent has other benefits for employees,
including vacations, holidays, pensions, and insurance.
G. Petersen testified that, at a meeting for employees
held by Tobler on October 10, Tobler discussed benefits.
G. Petersen testified:
He said the discount privilege was something they
had given to the nonunion employees and pointed out
that the grocery or union people did not have it, and
that as far as he knew, no union had ever negotiated for
a discount privilege.
At that time I confronted him and - no, he went on
further.
He said that under a union contract, we would lose
that benefit. He said - I am trying to think of more or
less the exact words - that it had never been
negotiated; it wouldn't be negotiated, and the employ-
ees would lose their discount.
Q. Excuse me. Did you say employees would lose
their discount?
A. Yes. He did say that, prefaced by under a union
arrangement or union contract, we would lose the
discount.
Q. Did he say anything about insurance benefits as
to what might or might not happen to them?
A. He discussed the differences only, as I recall, in
major medical in regards to the limit of the coverage of
one over the other, but I don't recall anything specific.
G. Petersen explained his testimony after reading his
pretrial affidavit, and stated:
On review of that paragraph, what took place was on
this blackboard side by side comparison, on base of
that, I raised the question of whether we would lose our
discount privilege, and he said it had never been
negotiated, a union had never negotiated it and it
would not be negotiated.
Q. Did Mr. Tobler at this meeting say anything
about group medical insurance?
A. Yes. He was quite proud of it, said it was one of
the best any company offered in the industry or in any
industry, and that we would be losing these benefits if
we voted in favor of the union.
On cross-examination G. Petersen stated:
Q. Now, turning your attention to Mr. Tobler's
meeting where you asked the question, the middle part
of October 1975, isn't it true that Mr. Tobler said the
union doesn't bargain for employee discounts?
A. That was what he said. It was not a negotiable
matter.
Q. They would rather negotiate for other terms and
conditions for employees, higher wages, for instance?
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Basically, yes.
Q. And this is what he said was his belief what the
union would do?
A. Exactly.
Q. And from your experience in the supermarket
end of the business, for lack of better words, those
employees don't have the employee discount under
their collective-bargaining agreement?
A. That's correct.
If the people selected the union as the representative
of the employees in the department-store side, isn't it
accurate to say that Mr. Tobler, during the meeting,
said whatever benefits you would get through a union
contract would have to be negotiated between the
union and the company?
A. To my knowledge, something of that nature was
said; specifically what, I can't put into words.
Q. Something of the knowledge that everything is
up on the bargaining table and you have to bargain for
what you get?
A. Yes.
Q. Did he ever say that if the union won the
election that the company would refuse to bargain with
the union?
A. No.
Relative to insurance, G. Petersen testified:
Q. Now, what did he say, not what you thought he
was trying to get across.
A. The insurance program the company had
offered would not be the one negotiated, that the
benefits negotiated - no, that is not his exact words.
Q. Did he say that the union would negotiate for
their own insurance plan?
A. Yes.
Q. So that the union wouldn't want to negotiate the
company's insurance plan because they had one of
their own?
A. Yes. That would be correct.
Q. But he didn't say that if the union wanted to
accept the company's insurance plan that he wouldn't
allow it to be accepted?
A. I don't recall whether he said anything of that
nature or not.
Tobler testified that discounts and other benefits were
discussed in all group meetings with employees. He stated:
Q. What did you generally respond at these
meetings if the question was asked?
A. My reply was at this time no one, ourselves or
the union, could tell them what the wage would be or
benefits would be, that they would have to be
negotiated at such time; or if it occurred that the union
was voted in as a representative body. I did indicate to
them the Retail Clerks had not as yet made that a
negotiable item in their contract on the other side of the
store.
Q. The other side being the grocery side?
A. The grocery side. It had never been made an
item of negotiation on the super market side; I did
indicate that to them.
Q. At any time during the course of the campaign,
did you ever tell any employee that if the union won,
you were not going to negotiate with the union
regarding company discount?
A. Heavens, no, I didn't.
Q. Is it fair to say that you, in response or while
you were talking, said, if the union comes in, you don't
have any benefits until something is negotiated?
A. No, that isn't what I said. I said the employees
would naturally continue to enjoy everything they had
until such point as the new contract was signed, if that
did come about, naturally they would have the benefits
they enjoy until such time as the contract would be
negotiated.
Discussion
It is seen from the foregoing that G. Petersen corrobo-
rates Tobler on several points in the latter's testimony.
Based upon observation of the witnesses and their
demeanor, Tobler is credited to the extent that his
testimony differs from that of G. Petersen, and it is found
that this objection is without merit to the extent that it
involves Tobler. It is clear that Tobler made no threat
during the group employee meeting testified to by G.
Petersen, and that Tobler did no more than to state that, if
the Union got in, all points of a contract would have to be
negotiated.
IV. REQUESTED BARGAINING ORDER
In his brief, counsel for the Charging Party requests a
bargaining order "because the Union lost its majority
status as a result of unfair labor practices of the Employer"
that were coercive and pervasive.
The Supreme Court observed in Gisse114 that, in
exceptional cases marked by outrageous and pervasive
unfair labor practices, a bargaining order may be the only
effective remedy.
However, under Board law a bargaining order must be
predicated upon majority status.'5
In this case the election involved employees of seven
stores and a warehouse. Unfair labor practices have been
found in only three stores. The Union lost the election by a
substantial number of votes; i.e., 134 to 79, with 31
challenged ballots from a total of 262 eligible voters in one
unit, and 18 to 3 with I challenged ballot from a total of 22
eligible voters in the warehouse unit.
The unfair labor practices alleged and found consist
entirely of 8(aX1) violations, none or all of which can be
considered "outrageous."
Thus, this is not an "exceptional" case, since the unfair
labor practices are neither outrageous nor pervasive. More
important, a union majority not having been shown to exist
14 N.L. R B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
292
15 The Contract Knitter, Inc., 220 NLRB 558 (1975).
VEGAS VILLAGE SHOPPING CORP.
at any time relevant herein, a bargaining order is not
appropriate.
V. OBJECTIONS TO THE ELECTION
Certain of Respondent's conduct, discussed above,
occurred during the critical preelection period and preclud-
ed employees from exercising their freedom of choice in
selecting or rejecting the Union. That conduct constitutes
substantial interference with the election. Even though
some conduct may have been outside the critical period, it
is considered to show Respondent's motives and intent. I
shall, therefore, recommend that the election of October 16
in Case 31-RC-3222 be set aside and that the case be
remanded to the Regional Director for Region 31 for the
purpose of conducting a new election at such time as he
feels the circumstances permit the free choice of a
bargaining representative.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The Respondent's activities set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VII. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(aXI) of the
Act, I shall recommend that Respondent be ordered to
cease and desist therefrom and, from any other manner,
infringing upon its employees' Section 7 rights, and to take
certain affirmative action designed to effectuate policies of
the Act.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. Vegas Village Shopping Corporation is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Retail Clerks Union, Local 1536, chartered by the
Retail Clerks International Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By coercively threatening, warning, interrogating,
and instructing employees concerning their union activi-
ties, Respondent interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed to them
by Section 7 of the Act, in violation of Section 8(a)(1) of
the Act.
'6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
4. Respondent did not, through alleged conduct,
violate Section 8(aX)() of the Act in any manner other than
found therein.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 16
The Respondent, Vegas Village Shopping Corporation,
Las Vegas, Nevada, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Coercively threatening, warning, interrogating, and
instructing employees concerning their union activities,
specifically as follows:
(1) Interrogating employees concerning their union
sympathies and activities, asking employees if they have
signed union authorization cards, and asking employees
why they are wearing union insignia.
(2) Threatening employees with loss of benefits, more
onerous working conditions, and termination if they
continue to support the Union or if the Union is selected as
the exclusive-bargaining representative of the employees.
(3) Warning employees to stay away from union
supporters and union organizers.
(4) Instructing employees to wear antiunion insignia, to
remove prounion insignia, and to deal directly with
Respondent regarding working conditions rather than
selecting a union as their bargaining representative.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed to them under Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its seven Las Vegas, Nevada, stores and
warehouse, described herein, copies of the attached notice
marked "Appendix."17 Copies of said notice, on forms
provided by the Regional Director for Region 31, after
being duly signed by Respondent's authorized representa-
tive, 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 Respondent to ensure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed to the extent that it alleges violations other than
those found herein.
'7 In the event that the Board's 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."
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER RECOMMENDED that the election conducted
on October 16, 1975, in Case 31-RC-3222 be set aside and
that said case be remanded to the Regional Director for
Region 31 to conduct a new election at such time as he
deems the circumstances permit the free choice of a
bargaining representative.
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 a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice. We intend to carry out the
Order of the Board and to abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT coercively threaten, interrogate, warn,
and instruct employees in order to discourage member-
ship in or activities on behalf of Retail Clerks Union,
Local 1536, chartered by the Retail Clerks Internation-
al Association, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through represen-
tatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
VEGAS VILLAGE SHOPPING
CORPORATION
294