Pembrook Management, Inc.

National Labor Relations Board - Board Decisions

Oct 6, 1989

296 N.L.R.B. 1226 (N.L.R.B. 1989)

1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pembrook Management, Inc. and International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, District Lodge 115 , Local Lodge
1596. Cases 20-CA-18454, 20-CA-18680, and
20-RC-15659
October 6, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On February 19, 1985 , Administrative Law
Judge Michael D. Stevenson issued the attached
decision . The Respondent and the General Counsel
filed exceptions and supporting briefs, and the Re-
spondent filed a brief in opposition.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified.
The Respondent owns and manages Santa Rosa
Plaza, a shopping mall in Santa Rosa , California.
The record establishes that the Union began orga-
nizing the Respondent's janitorial and maintenance
employees on July 28, 1983,2 after being contacted
by employee William Bolanos . The Union filed a
petition for an election on July 29. On September
27, a Stipulation for Certification upon Consent
Election was conducted and the Union lost.3 It
then filed timely objections to the conduct of the
election and unfair labor practice charges.
1. The judge found, and we agree , that the Re-
spondent 's general manager, Lloyd Miller, and
Maintenance Supervisor Jean Christy engaged in
numerous instances of conduct that violated Sec-
tion 8(a)(1) of the Act, including conduct that
interfered with the election, i.e., threatening em-
ployees with a loss of "comp time ,"4 promising
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd . 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
2 Unless otherwise indicated all dates are in 1983
a The tally of ballots reveals that of 15 eligible voters, 7 cast ballots for
and 7 cast ballots against the Union There were no challenged ballots
4 In affirming the -judge 's finding that the Respondent 's threat to elimi-
nate comp time is unlawful , we find it particularly significant that Christy
told Bolanos of the possible termination of this practice at a time when
Bolanos had recently returned to work after missing 8 days because of a
work-related injury.
them wage increases and bonuses , and ordering
them not to wear union insignia on the day of the
election.5
We agree with the judge's findings that the Re-
spondent 's providing employees with coveralls and
work gloves and reimbursing them for shoes dam-
aged on the job, and its granting employees a wage
increase after the election were unlawful. We do
not find persuasive the Respondent 's argument that
its providing employees with work clothes and re-
imbursing them for damaged shoes is lawful simply
because California law requires an employer to re-
place , or reimburse employees for, personal articles
damaged in the scope of employment . Even though
certain articles of personal property had been dam-
aged prior to the advent of union activity , the Re-
spondent did not adhere to this state law until after
learning that its employees were engaged in an or-
ganizing campaign.
Similarly , despite the Respondent 's contention
that its granting wage increases to employees was
lawful because it was done pursuant to a policy of
granting increases at year 's end, credited testimony
establishes that employee complaints about wages
voiced as early as February and March were ig-
nored by the Respondent. It was not until learning
of the organizing effort that Christy assured em-
ployees they would receive substantial increases.
Moreover, the increases were contingent on the
Union 's losing the election . Given the conditional
nature of the promised increases , and the fact that
this policy had not ever been previously announced
to the employees , it is apparent that the wage in-
creases were granted in fulfillment of unlawful
campaign promises.6
2. For the reasons stated below, however, we
disagree with the judge's findings that the Re-
spondent violated the Act by coercively advising
employees that they would not be able to bring
work-related problems directly to management if
they selected the Union.
The judge found that the Respondent's telling
employees that direct access to management would
be curtailed if they selected the Union constituted a
threat of loss of benefits , i.e., their 9(a) rights and a
S In affirming the judge's finding that the Respondent unlawfully in-
structed employees not to wear union insignia or any other insignia, in-
cluding their Santa Rosa Plaza T-shirts, on the day of the election, we
note that the wearing of union insignia is a form of solicitation , the ban-
ning of which is tantamount to imposing a no-solicitation rule That the
Respondent sought to balance its prohibition by telling employees not to
wear the Respondent 's insignia is irrelevant to our finding
We note that the granting of wage increases was alleged in the con-
solidated complaint only to violate Sec 8 (a)(1) of the Act In the brief on
exceptions to the Board , however , the General Counsel has alleged that
this grant of a wage increase also violates Sec 8 (a)(5) of the Act We
find that this 8(a)(5) allegation has been fully litigated and the merits will
be resolved below
296 NLRB No. 143
PEMBROOK MANAGEMENT
threat of more onerous working conditions. In so
finding , the judge relied chiefly on Christy's testi-
mony that he told employees "[T]hey wouldn't be
able to come to us with their problems on the job
and job related things. They would have to go to a
shop steward. They couldn't come to us for any-
thing ." Several employees testified similarly, stating
in essence that Christy told them they could not
come to management if they elected the Union, but
rather would have to go through their union repre-
sentative.7
In Tri-Cast, Inc., 274 NLRB 377 (1985), which
concerned an employer who made comparable
statements about the effect of representation on em-
ployees' right to deal directly with management,
the Board stated:
The Employer's statement , crafted in laymen's
terms, simply explicates one of the changes
which occur between employers and employ-
ees when a statutory representative is selected.
There is no threat , either explicit or implicit,
in a statement which explains to employees
that, when they select a union to represent
them , the relationship that existed between the
employees and the employer will not be as
before . This is especially so, as implied in the
Employer's statement here, where a collective-
bargaining agreement is negotiated. Section
9(a) thus contemplates a change in the manner
in which employer and employee deal with
each other . For an employer to tell its employ-
ees about this change during the course of an
election campaign cannot be characterized as
an objectionable retaliatory threat to deprive
employees of their rights , but rather is nothing
more or less than permissible campaign con-
duct.
In view of the Board 's decision in Tri-Cast, it is
clear that Christy's and Miller 's statements contain
no threats. In all instances the two simply stated
that the employees would have to deal with the
Respondent indirectly , through their chosen repre-
sentative . Thus, their statements impart a "mere
fact of industrial life"8 and are not coercive.9 For
this reason , we reverse the judge's finding that the
7 Martarano credibly testified that Miller rather than Christy advised
her that "going union" meant employees "could no longer go to manage-
ment."
8 See NLRB v. Sacramento Clinical Laboratory, 623 F 2d 110, 112 (9th
Cir. 1980).
9 United Merchants, 284 NLRB 135 (1987), petition for review granted
on other grounds sub nom. Clothing & Textile Workers v NLRB, 850
F 2d 688 (4th Cir. 1988), and United Artists Theatres, 277 NLRB 115
(1985)
1227
Respondent violated Section 8(a)(1) of the Act by
the conduct described.10
3. As stated above, the judge found that the Re-
spondent unlawfully ordered employees not to
wear union insignia on election day, promised em-
ployees wage increases and bonuses , and threat-
ened them with a loss of "comp time" between
July 29 , when the petition was filed , and the elec-
tion . He, therefore , recommended that correspond-
ing Objections 2, 4, and 6 be sustained and that the
election be set aside . Further, the judge concluded
that while the Respondent had engaged in several
instances of conduct that violate the Act , its con-
duct did not warrant the issuance of a bargaining
order , and that a second election should be direct-
ed. We affirm the judge's findings with regard to
the merits of the above objections for the reasons
stated in his decision . " For the reasons set forth
below, however, we find merit in the General
Counsel 's contentions that a bargaining order is
warranted in light of the Respondent 's conduct and
the evidence that establishes the Union's majority
status.
It is well settled that the Board will issue a bar-
gaining order when : (1) the union has obtained
valid authorization cards from a majority of the
employees in the bargaining unit and thus is enti-
tled to represent the employees for collective-bar-
gaining purposes ; and (2) the employer 's refusal to
bargain with the union is motivated not by a good-
faith doubt of the union's majority status, but by a
desire to gain time to dissipate that status, as evi-
denced by the commission of substantial unfair
labor practices during its antiunion campaign ef-
forts to resist recognition . NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). Thus, when an employer's
unfair labor practices are so outrageous or perva-
sive that traditional remedies cannot erase their co-
ercive effects , thereby rendering a fair election im-
possible, or when an employer's unfair labor prac-
tices are less pervasive but nonetheless have the
tendency to undermine majority strength and
impede the election processes , thereby rendering it
10 We also disavow the judge 's finding that the Respondent unlawfully
solicited grievances from employees The complaint does not contain
such an allegation and the issue was not litigated fully at the hearing. We
note that in finding that employees were coercively interrogated, the
judge relied in part on his finding that employees were solicited for
grievances For the other reasons stated by the judge, however, we
affirm his findings that the Respondent 's interrogation of employees, spe-
cifically Martarano and Anderson , violated the Act In this connection,
we find it unnecessary to pass on the judge's finding that the Respondent
unlawfully interrogated employee Bolanos inasmuch as the finding is cu-
mulative and would not affect the Order For the same reasons , we also
find it unnecessary to pass on his finding that the Respondent 's vice presi-
dent , Palmieri , unlawfully threatened employees with a loss of retirement
and medical benefits
I I In the absence of exceptions we also affirm the judge's recommenda-
tion that all other objections be overruled
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unlikely that traditional remedies will erase the ef-
fects of the unlawful conduct and ensure the con-
duct of a fair election, the Board may issue a bar-
gaining order, relying on employee sentiment as ex-
pressed through alternative means, such as authori-
zation cards. Horizon Air Services, 272 NLRB 243
(1984), quoting Gissel Packing Co., supra at 613,
614-615.
As the judge's decision more fully details, the
Respondent countered the Union's organizing cam-
paign by repeatedly interrogating employees about
their union activities and how they intended to
vote; threatening loss of comp time and pay raises
if the Union were voted in; providing work apparel
it previously had withheld; conditioning wage in-
creases and bonuses on the Union's losing the elec-
tion; and, after the Union did lose the election on a
7 to 7 vote, granting substantial wage increases
and/or bonuses to 11 of the 16 unit employees in
fulfillment of its promise to reward employees for
ousting the Union.
The threats and interrogations were made by the
Respondent's highest ranking Santa Rosa facility
officials to more than half of the unit employees.
Eleven employees received bonuses ranging from
$300 to $600, and 8 of these 11 were additionally
rewarded with pay raises ranging from 35 cents an
hour to more than a dollar an hour. Although the
bonuses and raises would be considerable in any
setting, they are particularly generous in the cir-
cumstances here, when seven employees were
earning $4.25 an hour at the time of the election,
and the highest hourly wage was $5.30.
While our dissenting colleague concludes that
the effects of the Respondent's unlawful conduct
can probably be erased by traditional remedies and
a rerun election therefore is preferable to a bargain-
ing order, we are not persuaded that posting a
Board notice to employees will dispel the lingering
effects of violations that pervaded a small unit and
were designed to chill the Union's campaign at its
inception. After the Union lost the election, the
Respondent consummated its promises to reward
unit employees through bonuses and pay raises,
which in the context of the Respondent's wage
scale were substantial. It is not the Board's policy
to require that unlawfully granted benefits be re-
scinded, and they are difficult to remedy by tradi-
tional means. This difficulty is exacerbated by the
Respondent's threats of loss of benefits should em-
ployees choose union representation. The Respond-
ent's stated policy of rewarding company support
and punishing union support creates an atmosphere
in which it is difficult to find that free choice can
be exercised in a second election.
In this case it is readily apparent that wages
became a significant issue in the campaign. The
clear implication of the judge's findings is that the
employees sought union representation in reaction
to what they perceived as inequities in their pay
and benefits when the Respondent took over oper-
ations. We find Honolulu Sporting Goods Co., 239
NLRB 1277, 1282 (1972), enfd. 620 F.2d 310 (9th
Cir. 1980), and Tower Records, 182 NLRB 382, 387
(1970), enfd. 79 LRRM 2736 (9th Cir. 1972), to be
particularly apropos. In those cases the Board
granted a bargaining order when the sole unfair
labor practice was the grant of a wage increase in
reaction to the union's organizing campaign. As
noted in Honolulu Sporting Goods, 239 NLRB at
1282-1283, the following statement from Tower
Records is directly applicable:
It is a fair assumption that in most instances
where employees designate a union as their
representative, a major consideration centers
on the hope that such representative may be
successful in negotiating wage increases. Cer-
tainly this appears to have been an important
consideration in the instant case. A unilateral
award of a wage increase by an employer fol-
lowing a union's demand for recognition re-
sults in giving the employees a significant ele-
ment of what they were seeking through union
representation. It is difficult to conceive of
conduct more likely to convince employees
that with an important part of what they were
seeking in hand union representation might no
longer be needed. An employer may have the
right to persuade the employees that represen-
tation is not in their best interests, but it does
not have the right to threaten them or confer
benefits on them which are designed to influ-
ence the employees against choosing a repre-
sentative. When, as here, an employer does so,
free choice in a subsequent election becomes a
matter of speculation, so long as the effects of
the interference remain unremedied. 182
NLRB at 387.
In the case at hand, not only were substantial
wage increases and bonuses granted, but the Re-
spondent also engaged in interrogations, threats,
and the grant of benefits other than wages, all in
violation of Section 8(a)(1). Accordingly, we find
that the • Respondent's unfair labor practices were
so pervasive as to render the expression of free
choice in a rerun election slight indeed.12
12 We are unwilling to conclude that the likelihood of recurrence of
unfair labor practices is not present . The dissent relies on the judge's
comments that the misconduct was due , in part, to miscommunication be-
Continued
PEMBROOK MANAGEMENT
In view of his recommended disposition of the
election , the judge found it unnecessary to deter-
mine whether the Union represented a majority of
unit employees based on signed authorization
cards . 13 The record establishes that on July 28, 14
of the 16 employees in the unit attended one of
two meetings conducted by Union Agent Hoffman
and signed cards that stated in pertinent part, "I
.. . hereby authorize the [Union ] to act as my col-
lective bargaining agent with the company for
wages, hours and working conditions ." While there
is some dispute whether Hoffman told employees
that the cards were representation cards, it is not
disputed that he told them the cards could or
would be used to obtain an election . 14 It is clear
tween the Respondent 's local managers and its New York headquarters
and that this miscommunication was the result of the Respondent having
recently taken over the management of the mall . Even if one were to
accept the premise that the infancy of the relationship contributed to mis-
communications , which led at the outset to the commission of unfair
labor practices , that explanation is seriously flawed as applied to the
wage increases and bonuses The increases and bonuses , arguably the
most serious and flagrant unfair labor practices committed , were imple-
mented in December 1983 and January 1984, nearly a year after the Re-
spondent took over . Surely it is reasonable to conclude that the Respond-
ent's "communication" system was intact by then Yet the Respondent's
decision , made at both the local level and headquarters , was to proceed
with the unlawfully promised increases and bonuses . Under these circum-
stances , we are not convinced that the Respondent has established that
there is not a likelihood of recurrence of similar conduct
In addition , we reject the Respondent 's contention that imposition of a
bargaining order is unwarranted due to turnover of all but 4 or 5 employ-
ees in a 16-employee unit . Such evidence is irrelevant under existing
Board law concerning factors governing the issuance of Gissel bargaining
orders. F & R Meat Co., 296 NLRB 759 ( 1989), Highland Plastics, 256
NLRB 146, 147 (1981 ) Further , even were we to examine employee
turnover, absolutely no evidence indicates eradication of the effects of
conditioning wage increases and bonuses on a union loss and the subse-
quent grants of wage increases and/or bonuses given after the Union lost
the election . Similarly , the Respondent points to no action taken to erase
the effects of its interrogations made at the highest level by management
who, as far as the record reflects , are still present in the plant Nor has
the Respondent claimed that its threats of loss of comp time and pay
raises if the Union was voted in and the grant of work apparel have been
remedied Finally , although the Respondent makes the bare assertion that
none of the turnover is due to the alleged unfair labor practices, the
record is devoid of evidence to support this assertion
is The unit alleged in the complaint in Case 20-CA- 18454 and admit-
ted in the Respondent 's answer thereto to be an appropriate unit is All
full-time and regular part -time maintenance and janitorial employees, in-
cluding shift leaders , employed by Respondent at its Santa Rosa Plaza,
California location ; excluding all office clerical employees , professional
employees , sales persons , guards and supervisors , as defined in the Act.
i4 The card signers who attended one organizing meeting testified in
the main that Hoffman explained that the cards authorized the Union to
represent them and that they would be used to obtain an election if the
Respondent did not recognize the Union . Of the card signers who attend-
ed the other organizing meeting , Enless testified that "we signed , just for
the initial vote, to see if we could get an election "; Robles, who had trou-
ble reading English and received help reading his card , testified that
"when I sign the time card [sic], I didn ' t know-I didn ' t know there was
going to be an election" and that the purpose of the cards was "for going
union"; Neilsen testified that "the only thing I know for sure that [Hoff-
man] mentioned that it was for the election " and stated that he did not
remember anything definitely , Montoya testified that he did not recall
Hoffman 's mentioning an election or the purpose of the card , but that the
card was "to get you to sign stating that you want the Union "; Martar-
ano testified that Hoffman said a certain number of people had to be in-
terested and that if so her card would be taken before the NLRB to get
an election , Martarano also testified that Hoffman mentioned taking the
1229
from the employees ' testimony , however, that
Hoffman never stated that obtaining an election
was the sole purpose of signing the cards and never
otherwise contradicted the unambiguous language
printed on the cards indicating that the person
signing the card authorized the Union to represent
him. Therefore, we reject the Respondent 's conten-
tion that the cards were invalid because employees
were told the cards would only be used for an
election . This contention is not supported by the
record . It is clear , based on the 14 signed authori-
zation cards, that the Union represented a majority
of the Respondent 's 16 unit employees when it de-
manded recognition on July 29 . 15 Horizon Air Serv-
ices, supra; NLRB v. Gissel Packing Co., supra;
Cumberland Shoe Corp., 144 NLRB 1268 (1963).
In light of the Union 's majority status and the
fact that the Respondent 's pervasive unfair labor
practices render it unlikely that employee sentiment
can be freely expressed in a second election, we
find that the Respondent was obligated to bargain
with the Union from the date of the Union's re-
quest for recognition, and we shall order that it do
SO.
4. Having found that the Respondent 's bargain-
ing obligation commenced on July 29 , we find that
it further violated the Act by unilaterally changing
employees ' terms and conditions of employment
and granting them benefits, as alleged in the com-
plaint, acts that we find, in agreement with the
General Counsel , violated Section 8(a)(5) and (1) of
the Act. 16 Specifically, the record discloses that on
September 24, 3 days prior to the election , Christy
granted employee Chase 's request to take the day
off on his birthday . Chase credibly testified that
Christy told him, "You have your birthday off
with pay , and just remember us on Tuesday," the
day of the election . Miller admitted instituting a
short-lived 5-day sick leave policy before the elec-
tion , as well as a policy for birthday-holidays (like
that provided Chase), as a result of a misunder-
standing with Vice President Palmieri . Finally, on
cards to a neutral party , but could not remember in what context the
statement was made, Anderson testified that Hoffman said "signing the
cards would advise [the Respondent ] that we were wanting a Union and
that by signing these cards, we would have signature to-to get an elec-
tion"; and Corey , who left the Respondent 's employ prior to the election,
testified that Hoffman explained the purpose of the card and that she
"was giving permission for the Union to represent me, and that I was in
favor of the Union , and that these cards would be presented to manage-
ment to show proof of majority of people had-were interested in the
Union , so that we could get , through some process, an election."
15 Although we find no merit in the Respondent 's contention that
Robles did not adequately understand the purpose of the authorization
card due to his inability to read the card, we note that the Union 's major-
ity status is not dependent on his authorization card
16 Consistent with his finding that no bargaining order was warranted,
the judge declined to consider whether the Respondent violated Sec.
8(a)(5) by its unilateral conduct
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
December 9, as stated above , the Respondent
granted 11 employees postelection bonuses and on
January 11 , 1984, the Respondent granted 8 em-
ployees substantial wage increases . Miller even dis-
tributed the bonuses personally . All of the forego-
ing acts were unprecedented , and the Respondent
did not provide notice to the Union or an opportu-
nity to bargain before implementing them . Accord-
ingly , the Respondent has violated Section 8(a)(5)
and (1) of the Act. We shall, therefore , direct the
Respondent to cease and desist from unilaterally
implementing changes in wages , hours, and condi-
tions of employment and to recognize and bargain
with the Union.
AMENDED CONCLUSIONS OF LAW
1. Pembrook Management , Inc. is an employer
within the meaning of Section 2(2) of the Act en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge
115, Local Lodge 1596 is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time mainte-
nance and janitorial employees, including shift
leaders, employed by Respondent at its Santa Rosa
Plaza , California location ; excluding all office cleri-
cal employees , professional employees, sales per-
sons, guards and supervisors , as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since July 29, 1983 , the Union has been the
exclusive collective -bargaining representative of all
employees employed in the above appropriate unit
for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By engaging in the following conduct the Re-
spondent violated Section 8(a)(1) of the Act:
(a) Threatening employees with loss of benefits
and more onerous working conditions if the Union
won the election.
(b) Impliedly threatening employees with job
loss for engaging in union activities.
Promising employees increased benefits if the
Union did not win the election.
(d) Coercively interrogating employees and com-
mitting other coercive acts such as directing em-
ployees not to wear union T -shirts to the election.
6. By engaging in the following conduct , the Re-
spondent violated Section 8(a)(5) and ( 1) of the
Act:
(a) Refusing on and after July 29, 1983, to recog-
nize and bargain with the Union as the collective-
bargaining representative of the employees in the
above appropriate unit.
(b) Granting wage increases , bonuses, and other
benefits to employees without giving the Union
notice and an opportunity to bargain.
7. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set forth in full below and
orders that the Respondent , Pembrook Manage-
ment, Inc., Santa Rosa , California , its officers,
agents, successors , and assigns , shall take the action
set forth in the Order as modified.
1. Cease and desist from
(a) Threatening employees with loss of benefits
and more onerous working conditions if the Union
won the election.
(b) Impliedly threatening employees with job
loss for engaging in union activities.
(c) Promising employees increased benefits if the
Union did not win the election.
(d) Coercively interrogating employees and com-
mitting other coercive acts such as directing em-
ployees not to wear union T-shirts to the election.
(e) Refusing on and after July 29, 1983, to recog-
nize and bargain with the Union as the collective-
bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part -time maintenance
and janitorial employees , including shift lead-
ers, employed by Respondent at its Santa Rosa
Plaza , California , location ; excluding all office
clerical employees , professional employees,
sales persons, guards and supervisors, as de-
fined in the Act.
(f) Granting wage increases, bonuses, and other
benefits to employees without giving the Union
notice and an opportunity to bargain , provided that
this Order shall not be construed as requiring the
Respondent to cancel any wage increase or other
improvement in benefits without a request from the
Union.
(g) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and bargain with the Union as the
collective -bargaining representative in the aforesaid
appropriate unit.
PEMBROOK MANAGEMENT
(b) Post at its facility in Santa Rosa, California,
copies of the attached notice marked "Appen-
dix."17 Copies of the notice, on forms provided by
the Regional Director for Region 20, after being
signed by the Respondent' s authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within lays from the date of this Order what
steps the Resp'on - t has taken to comply.
CHAIRMAN STEPHENS , dissenting in part.
I agree with the judge 's conclusion that the issu-
ance of a bargaining order is not required here.
While the preelection violations were certainly of a
nature to affect the election that the Union lost,
and the Respondent here compounded its miscon-
duct by granting wage increases and bonuses after
the election, I am not persuaded that, in the cir-
cumstances of this case, traditional remedies will be
insufficient to ensure a fair rerun election.' It is
true, as the majority points out, that the Board has
on several past occasions issued bargaining orders
on the basis of wage increases promised and grant-
ed in order to defeat support for the Union, but I
do not agree that there is an inflexible rule that a
bargaining order must issue whenever such in-
creases are promised and given . Particular facts of
each case must be taken into account . For example,
one of the factors that Gissel directed us to take
into consideration was "the likelihood of [the] re-
currence [of the unfair labor practices] in the
future."2 In this case the judge found that the Re-
spondent's misconduct stemmed in part from in-
complete communication concerning employment
policies between the Respondent's New York head-
quarters and its local managers , who had previous-
ly worked for a predecessor employer with differ-
ent policies and who had been operating the mall
for the Respondent for only 6 months before the
election . On the basis of the testimony of the Re-
spondent 's vice president and general counsel, the
judge was persuaded that the Respondent had gen-
erally good relationships with unions at other malls
it operated and that the Respondent was unlikely
19 If 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 Nation-
al 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."
See NLRB Y Gissel Pack ing Co ., 395 U . S 575, 614 (1969)
a Id.
1231
to repeat the violations found here in a second
election .3 Further, although , as the majority notes,
our remedies do not include a requirement that the
bonuses and raises be rescinded , I still do not be-
lieve that we are compelled to find that , under all
the circumstances , the one-time bonuses and raises
given in December 1983 and January 1984 and the
other 8(a)(1) violations found here are bound to
have such a lingering effect as to preclude the
holding of a fair second election . Accordingly, I
would not issue a bargaining order , and, as a conse-
quence, would not grant the General Counsel's ex-
ceptions to the judge 's failure to find that certain
alleged unilateral changes in working conditions by
the Respondent constituted violations of Section
8(a)(5) of the Act.4 Instead , I would order that a
second election be held.
a This is not to say that the bona fides of management should suffice to
forestall a bargaining order in every case The seriousness and likely lin-
gering impact of violations may often outweigh considerations of man-
agement 's likely future conduct
4 The General Counsel's exceptions are premised on the assumption
that a bargaining order is warranted . See Trading Port, Inc., 219 NLRB
298 (1975)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten employees with loss of
benefits and more onerous working conditions if
the Union wins the election. .
WE WILL NOT impliedly threaten employees
with job loss for engaging in union activities.
WE WILL NOT promise employees increased ben-
efits if the Union does not win the election.
WE WILL NOT coercively interrogate employees
or commit other coercive acts such as directing
employees not to wear union T-shirts.
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to recognize and bargain
with the Union as the collective-bargaining repre-
sentative of the employees in the following appro-
priate unit:
All full-time and regular part-time maintenance
and janitorial employees, including shift lead-
ers, employed by Respondent at its Santa Rosa
Plaza, California location ; excluding all office
clerical employees , professional employees,
sales persons, guards and supervisors, as de-
fined in the Act.
WE WILL NOT grant wage increases , bonuses,
and other benefits to employees without giving the
Union notice and an opportunity to bargain.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and bargain with the Union
as the collective-bargaining representative in the
aforesaid appropriate unit.
PEMBROOK MANAGEMENT, INC.
David Sargent, Esq. and Kathleen Nixon , for the General
Counsel.
Christopher Katzenbach , Esq., of San Francisco, Califor-
nia, for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON , Administrative Law Judge.
This case was tried before me at Santa Rosa , California,
on September 11, 12 and 13, 1984 ,1 pursuant to order
consolidating cases issued by the Regional Director for
the National Labor Relations Board for Region 20 on
May 16 , 1984. On January 17, 1984, the Regional Direc-
tor ordered consolidated certain issues arising from a
representation election in Case 20-RC- 15659 . The com-
plaints were filed on December 23 (20-CA- 18454) and
March 15, 1984 (20-CA-18680) by International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO,
District Lodge 115, Local Lodge 1596 (the Union), and
allege that Pembrook Management, Inc. (Respondent)
has engaged in certain violations of Section 8(a)(1) and
(5) of the National Labor Relations Act.
The Union's representation petition was filed on July
29 and sought a representation election among certain of
Respondent 's maintenance and janitorial employees. An
election was held pursuant to stipulation for certification
upon consent election on September 27. Objections to
conduct affecting the outcome of the election were filed
by the Union on October 3. In addition , it appears from
the tally of ballots that no votes were challenged.
' All dates herein refer to 1983 unless otherwise indicated
Issues
1. Whether Respondent interfered with, restrained, and
coerced employees in the exercise of their rights guaran-
teed under Section 7 of the Act by committing one or
more of the following acts:
A. Preelection
(1) By threatening employees with more onerous
working conditions and loss of benefits such as restricted
access to management , loss of compensatory days off,
and curtailment of employee discretionary time when
work finished early, if the Union were voted in.
(2) By promising its employees that they would re-
ceive increased benefits such as wage increases, work
shoes and gloves , and more overtime work, if they re-
jected the Union as their bargaining representative.
(3) By instructing employees not to wear union insig-
nia on the day of the Board-conducted election.
(4) By interrogating employees regarding their own
union membership , activities and sympathies and those of
their fellow employees.
(5) By providing employees with free T-shirts.
B. Postelection
(1) By promising employees a wage increase because
they rejected the Union as their bargaining representa-
tive.
(2) By instituting a new sick leave policy.
(3) By impliedly threatening its employees with dis-
charge if they supported the Union.
II. If Respondent violated the Act one or more times
as alleged , whether a bargaining order is appropriate.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally , and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of General Counsel and Respondent.2
On the entire record of the case , and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS
Respondent admits that it is a New York corporation
which manages an indoor shopping mall located in Santa
Rosa , California. It further admits that during the past
year, in the course and conduct of its business that it has
performed services valued in excess of $50,000 in States
other than the State of California. Accordingly, it
admits, and I find, that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that International Asso-
ciation of Machinists and Aerospace Workers, AFL-
CIO, District Lodge 115, Local Lodge 1596 is a labor
2 Apparently through oversight, General Counsel did not brief the
issues regarding the postelection award of pay raises, the objections to
election , nor the several 8(a)(5) failure-to-bargain allegations.
PEMBROOK MANAGEMENT
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In March 1982 , the Santa Rosa Plaza opened for busi-
ness . Covering 32 acres, the Plaza contained retail stores,
large and small, extensive parking areas , and various of-
fices and work areas for its employees. The Plaza was
managed first by the Hahn Corporation. Among other
persons employed by Hahn were Lloyd Miller, general
manager of the Plaza, and Jean Christy, a maintenance
employee.
In January , Hahn sold the Plaza to Respondent and
both Miller and Christy continued as employees . Miller
remained as general manager and Christy was promoted
to maintenance supervisor . They were the only Santa
Rosa employees to receive pay raises from Respondent
in January.
Respondent retained all other Hahn employees , but did
not continue many important Hahn personnel policies.
For example, Hahn's policy regarding pay was to in-
crease salary twice a year, in July and January. It did
not give the January 1983 raise because it had sold the
property. Respondent 's policy regarding pay was to in-
crease salary once a year, in December . Accordingly,
except for Miller and Christy, employees did not receive
their scheduled pay raise in early 1983.
Another difference between the two companies con-
cerned starting salaries . Hahn paid $5 an hour and Re-
spondent paid $4.50. In certain cases, this difference re-
sulted in leadmen (nonstatutory supervisors) earning less
than the employees they supervised. With respect to sick
days, Hahn allowed up to 5 paid per year with unused
leave to be carried over. Officially , Respondent allowed
no paid sick days; however, local supervisors had some
discretion in how to handle this. Miller and Christy
adopted a system of "make-up days" under which if an
employee needed time off, they were permitted to make
up the lost time later . To make up the lost pay raise,
Miller and Christy used a "comp" time system , by which
leadmen were allowed 1 extra day off per month and as-
sistant leadmen were allowed 1 day off every other
month.
One final consequence of the change in ownership
should be noted. Under Hahn , employees were covered
by a group insurance policy for medical and hospital
costs . When Respondent took over, this policy lapsed
and, for a period of 90 days, employees were not cov-
ered by any policy. Thereafter, employees were covered
by a different policy.
Sometime after the events recited above and other
events to be recited below came to pass , an employee
named William (Willie) Bolanos contacted the Union. A
witness at hearing, Bolanos testified that he had begun
work in January , worked the 4-12:30 a. m. shift and was
terminated by Respondent in October, for theft. The first
union meeting was held on July 28, in the cafeteria of
Sears, one of the Plaza stores . About seven to eight em-
ployees attended the first meeting, and about the same
attended the second meeting held the same day, for the
1233
day shift people . In response to Bolanos ' telephone call,
the Union had dispatched an organizer named Eric Hoff-
man, also a witness at hearing.
Hoffman explained to employees that while the NLRB
required only 30 percent of unit employees to sign au-
thorization cards, internal union policy required 65 per-
cent before the Union would petition for an election.
Hoffman explained further to his listeners that some em-
ployees changed their mind in response to employer op-
position to the Union.
Hoffman , a veteran of approximately 18 union organiz-
ing campaigns , testified that he carefully explained to the
employees in attendance that by signing the card, the
employee designated the Union as his or her representa-
tive . Hoffman explained further, after a majority of unit
employees sign cards, the Union sends a letter to Re-
spondent asking for voluntary recognition , but that this
request is rarely granted . On July 29, such a letter was
sent in this case (G.C. Exh. 20), but Respondent made no
written reply . Hoffman went on to testify that he also
explained to Respondent 's employees that the usual pro-
cedure for the Union to become certified by the NLRB
as representative of unit employees was through an
NLRB-supervised election . Of the 14 employees who
signed cards on July 28 (G.C. Exh. 19), all but 2 testified
at the hearing . There were some variations between their
testimony regarding what Hoffman allegedly told them
and between Hoffman 's own account. I will discuss these
matters further in the "Analysis and Conclusion" section
of this decision.
Of the past and present employees who testified at
hearing, five testified only as to the facts and circum-
stances surrounding their signing of the Union's authori-
zation cards and Hoffman's explanation of the purpose of
the cards . The remaining seven employees also testified
regarding the same subject and all identified their signa-
tures . In addition , the latter group testified regarding the
substantive violations alleged in the complaint.
Sometime after Respondent received the Union 's letter
(G.C. Exh . 20), Miller and Christy consulted with vari-
ous persons in Respondent 's management , legal counsel,
and in the case of Christy , his father , a retired industrial
relations executive who had had certain experiences with
unions . Thereafter , Miller and Christy engaged in certain
conduct in opposition to the Union 's organizing cam-
paign. I turn now to describe their activities and other
relevant facts.
Beginning about 2 weeks after the union meetings
noted above, Christy began to summon individual em-
ployees to his windowless office which measured 15-feet
square with 8 foot ceilings . The meetings lasted a mini-
mum of 15 to 20 minutes and up to 60 minutes . About 80
percent of the time Miller was also present . Sometimes
more than a single employee was present , possibly two
or three . All meetings occurred during normal working
time . As a general outline of the subjects discussed,
Christy and Miller used documents which had been dis-
tributed to employees prior to the meetings. That is, as
each document was distributed to employees , a round of
meetings would occur to discuss the contents of the par-
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ticular document . These written statements , prepared by
Christy and Miller, read as follows:
Santa Rosa Plaza
[Address omitted]
September 2, 1983
When you think about having a union here, you
have to ask yourself, how will this change the way
we work together . Will it make things better or
worse? What if anything will I gain? What if any-
thing will I lose?
Right now, this place is pretty flexible for those
of you that are doing a good job. Problems in
scheduling are worked out face -to-face, and every-
one is satisfied . And if you're not satisfied, we can
talk about it and get our problems straightened out.
If you've had to work extra , we've given you
comp. days on an individual basis, because of your
special efforts . Now, when we assign jobs, we
decide what jobs you will do on an informal basis
that pretty much satisfies everybody.
A union can change all that . Instead of working
things out face-to-face, a union does your talking
for you . Everything is "by the book ." Rules are set
and all of us have to follow them . Most unions like
to run things strictly by seniority , with no thought
to your preference . We lose a lot of flexibility.
More important , we stop solving our problems
together . Both of us wind up doing exactly what's
in the rules , no more, and nobody benefits except
the union . It can really change your workplace
when a union is calling the tune this way. We think
you ought to think about this and vote "no" on
September 27.
Cordially yours,
/s/ Lloyd Miller, CSM
General Manager
QUESTIONS & ANSWERS
Q. Won 't the union give me protection against
getting fired or mistreated?
A. No union contract can keep you from getting
fired if you give the company a good reason, such
as if you are not doing your job. If you are doing
your job , the Company isn't going to do anything
but try to keep you. A lot of times , the union
spends its funds trying to protect the employee who
won't show up for work or who wants to let some-
one else do the work.
Q. Why can 't the Company treat me the same
whether or not I have a union?
A. The law makes the union your representative.
We can't deal directly with you the way we do
now. We can 't add or subtract to the contract with-
out the union agreeing . So, even if something bene-
fits both of us, some change in scheduling for an in-
dividual , for example , the union gets to have a say
before anything happens . [R. Exh. 2]
Santa Rosa Plaza
[Address omitted]
September 8, 1983
You may have been hearing a lot from the Union
about the benefits of having a Union . We think you
should stop and look at what really happens. If you
vote for a Union , that Union speaks for you from
now on . It bargains with the Company , and what-
ever wages and benefits you get come out of that
bargaining . That means several things:
There are no automatic increases . Your wages
and benefits could go up , down or stay the same de-
pending on what the Union and the Company agree
on.
There are no changes of any kind until the par-
ties get a collective bargaining agreement and that
kind of document has a lot more in it than just
wages and benefits . The Union will probably want a
"union-security," clause; this means that you will
have to join the Union and pay dues if you want to
or not-or you can lose your job . This Union may
want a clause that allows them to pull you out on a
strike if a picket-line is set up by another Union
against the Company . Also, if the Union has a strike
against another Company, the Union can pressure
you to picket on your own free time . This Union
may want seniority clauses, so that promotions,
shifts, overtime and so on are decided strictly on
the basis of seniority.
In short, if anyone is telling you that all you do is
join the Union and you get a nice boost in wages,
they're not telling you what you need to know. The
Union can make all the promises they want, but
when you vote for the Union , all that really hap-
pens is the Union gets the right to bargain for you.
If the Union wants a "Union Security " clause, or a
"sympathy strike" clause , that's what goes on the
table, and there is no contract of any kind until
those issues are disposed . We think you should ask
yourself if that's really what you want.
Cordially yours,
/s/ Lloyd Miller, CSM
General Manager
Q. Won 't the Union get its standard contract if
we vote the Union in?
A. You get nothing automatically if the Union is
voted in. All that happens is that there is bargaining
and, in the bargaining , the Union has your authority
to do the negotiating . You only get a contract if the
Union and the Company agree.
Q. What assurances do I have that things will get
better without a Union?
A. The Company has got to pay a competitive
wage to keep the best people whether or not the
Union bargains for you . That 's what will make the
Company treat you fairly . The Union can't add or
subtract from that at all . If the Union tries to get
the Company to pay more than it should , the only
result is going to be friction and possibly a strike.
Q. Can you give me some idea of what our
wages will be if the Union is voted out?
PEMBROOK MANAGEMENT 1235
A. The law doesn 't let us make promises of that
kind. All I can tell you is that this Company intends
to be fair and to be competitive in the wage market.
[R. Exh. 3]
Santa Rosa Plaza
[Address omitted]
September 15, 1983
It is a fact of life in collective bargaining that
there might be a strike . Do you know what that
means? No pay no benefits. If you go out on strike,
your pay and benefits stop . In California , you are
not entitled to employment compensation when you
are on strike.
Your job filled by replacements. The Company can
replace you with new permanent employees, and
you may not have a job left even when the strike
ends; you could have to wait until one of these new
employees left before you could get your job back.
Union fines if you try to work. If you go back to
work during the strike , the Union can fine you;
sometimes Unions will fine you everything that you
earn during the strike after going back to work.
Even when the strike is over, it may take months or
years to earn back the wages you lost during the
strike.
Violence, arrests during Machinists strikes. This
Union keeps talking about the strike "myth." In
Rhode Island last year, the Machinists Union was
on strike for over a year against Brown & Sharpe
Manufacturing Company . This strike was no myth;
more than 30 persons were arrested . The striking
employees were replaced by permanent replace-
ments . One of the company's plants was closed per-
manently, causing 115 employees to lose their jobs.
We hope that there will never be a strike here,
but it is not up to us . The Union is telling you that
it never causes or encourages strikes, but tell that to
someone who has been fined a day's pay for cross-
ing one of their picket lines . Tell that to one of the
employees who was replaced during the Brown &
Sharpe strike.
The Union is trying to make you think that
things are so bad here that the Machinists Union
and strikes are your only alternative . We think that
we can work better together on our problems
rather than giving the Machinists Union the right to
speak for you and to call you out on a strike.
Vote "NO" on Tuesday, September 27, 1983.
Cordially yours,
/s/ Lloyd Miller, CSM
General Manager
[R. Exh. 4]
Santa Rosa Plaza
[Address omitted]
September 20, 1983
The Union has probably painted a rosy picture of
what happens if you vote it in . We think you should
also know about:
UNION dues: You will have to pay dues to the
Union. This Union has dues of $27.00 per month,
and this could go up at any time . In the last year,
these dues went up $4.00 per month . If you do not
pay these dues, the Union can try to make you lose
your job.
Initiation fees: This Union has an "initiation fee"
of $125.00 to $200.00. Sometimes unions will waive
this fee for employees who are here at the time of
election to buy your vote. You shouldn't be fooled
by it.
Union fines: Once you're in the Union, the Union
can fine you money if you do things it does not ap-
prove of. According to the Union's Constitution,
you can be fined for "any . . . conduct unbecoming
a member of the I .A.M." This means almost any-
thing the Union does not like . These fines are as-
sessed by a special Union "court" at which you are
not entitled to have a lawyer.
Unfair representation: Maybe the Union has told
you about grievances and arbitration when you
have a union contract . Remember , only the Union
can represent you. If the Union does not agree with
you or your case, then that is the end of the matter,
even if you are right and the Union is wrong. Just
recently, a Federal court found that this Union had
not represented an employee fairly. Even though
the Union admitted its mistake , it still refused to
help the employee or make it up to him. The em-
ployee had to hire his own attorneys and sue the
Union. The case lasted over five years before the em-
ployee won.
Vote against giving the Machinists Union a
"blank check" over your lives . Vote "NO" on Sep-
tember 27, 1983.
Cordially yours,
/s/ Lloyd Miller, CSM
General Manager
[R. Exh. 5]
Turning next to the testimony of the individual wit-
nesses, I begin with Bolanos, the primary union activist.
He began working for Respondent in January, as assist-
ant supervisor on the night shift. He and another em-
ployee-witness named Tony Chase were fired by Re-
spondent in mid-October, for tampering with a Plaza ten-
ant's equipment , i.e., theft. Chase admitted to employee-
witness Myron Anderson, who himself was fired by Re-
spondent in December, that he (Chase) and Bolanos had
committed the act for which they were fired.
At one of the meetings with Christy, that Bolanos at-
tended in order to discuss the union campaign , Bolanos
noted Christy's opposition to the Union and related a
past experience to his supervisor. Bolanos had formerly
worked at a San Francisco company named Transparent
Products which, like Respondent , was faced with a
union organizing campaign . According to Bolanos, the
company's strategy to defeat the Union was to grant
each employee a bonus of $500 and two wage increases.
Up to this point , Christy confirms Bolanos' testimony.
However, Bolanos then testified that upon hearing this,
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Christy said that sounded like something Respondent
could use, so he would write down what Bolanos had
said . Christy, however, testified that after reciting the
story, Bolanos then said , why can't you do that? Christy
replied, because it is illegal . On rebuttal, Bolanos was
brought back to deny Christy' s version of the conversa-
tion; more specifically, Bolanos testified , "I didn't sug-
gest, and I didn 't say anything about it . I just brought it
up." (Tr. 639.) Bolanos ' failure to give a credible reason
for relating this alleged incident to his superior convinces
me that he is not being candid . I credit Christy on this
point and I will carefully scrutinize the remaining por-
tions of Bolanos' testimony.3
In his meetings with Christy and Miller, Bolanos ex-
pressed no reluctance to discuss the Union, saying once,
he could discuss it all day and all night . In several con-
versations during August and September , Christy asked
Bolanos what he expected from the Union and what
good did he expect from it. Bolanos answered that he be-
lieved better pay and working conditions would occur.
To this Christy replied that all present benefits might be
lost if the Union got in . If a pay raise occurred, union
dues would erase the benefit. The existing system of
"comp" time and makeup time would be in jeopardy. All
of this had special significance for Bolanos because in the
recent past he had suffered a job injury resulting in 8
days of unpaid absence . Miller and Christy told him that
this could be made up through "comp" time but only if
the Union did not come in.
In other meetings , Christy mentioned the possibility of
new boots to replace personal shoes damaged through
the use of chemicals during removal of old floor wax. As
to wages, Christy and Miller asked Bolanos what he
thought a fair wage should be. When Bolanos answered
that $7 per hour seemed fair to him-he was then
making $5 per hour-they replied that Respondent
would not go that high . Bolanos quickly answered, that
was exactly why he felt the Union was necessary. Then,
the two supervisors suggested that a bonus was possible
if the Union did not get in.
Another employee witness was Richard Morgan. Cur-
rently involved with a dispute with Respondent over his
employment status,' Morgan last worked on July 7,
1984. Like Bolanos, Morgan was contacted by Christy
and Miller a few weeks after he signed a union authori-
zation card. According to Morgan, one of the first com-
ments Christy made to him was, "We don't really need a
union here do we, Lee." Christy denied making this
remark , the remark was not reported in Morgan's affida-
vit, and no other witness was similarly addressed. For
these reasons , I do not credit this portion of Morgan's
testimony . Other aspects, however, were much more
credible. For example, Christy stated, if the Union was
not voted in, employees could expect a substantial pay
increase or bonus by early to mid-October . In fact, the
witness did receive a $400 bonus after the election.
When Miller asked what a union could do that was not
being provided currently, Morgan complained that
8 I note that Bolanos also denied stealing from tenants at the Plaza.
This dispute concerns a work -related injury Morgan received and
whether he is presently fit for employment.
Christy was not doing a good job in handling grievances.
Accordingly, a union steward was needed. To this,
Miller responded that it was O.K. to bypass Christy in
the future and come directly to Miller . At this meeting
and several others, Miller asked Morgan how he felt
about the Union.
Morgan also described a group meeting in mid-Sep-
tember. This was attended not only by Christy and
Miller, but also by a special guest, Daniel Palmieri, a
senior vice president and company general counsel. Pal-
mieri was a witness at hearing and candidly admitted
that he came to the Plaza from Respondent headquarters
in New York to speak to employees , due to the penden-
cy of the union election . Palmieri participated in a series
of group meetings involving three to five employees to
change the image of Respondent as an uncaring absentee
employer, to explain benefits , and to eliminate confusion.
There is some conflict between Palmieri and other wit-
nesses . All agree that Palmieri handed out a document
purporting to summarize Respondent 's insurance pro-
gram. (R. Exh. 6.)
According to Morgan, Palmieri began by apologizing
for ignoring the Plaza employees . Management was now
aware of major problems such as wage uncertainties and
sick leave . On behalf of management , Palmieri stated that
he wanted another chance to rectify problems . In his tes-
timony, Palmieri denied making any promises of benefits
or threats of loss of benefits. In agreement with Morgan,
he did tell employees that Respondent 's policy was not
to allow sick leave . He also drew upon various personal
experiences to make certain points : as a former union
lawyer, to recommend against unions particularly in a
small "people" company like Respondent , as a father of
children needing braces, to recommend favorably the
Company's dental insurance and other types of company
insurance, and as company general counsel dealing with
various unions at other shopping malls managed by Re-
spondent , to recommend against unions in general. Pal-
mieri suggested that present company benefits may well
change for the worse as a result of collective bargaining.
For example, instead of the company awards, after 3
years, of 10 percent of the employee 's salary in deferred
income for retirement , as was presently the case, the
union trustees might take over the retirement plan. Pal-
mieri did not mention the role of union member ratifica-
tion of any proposed contracts, nor did he mention bo-
nuses.
Morgan completed relevant portions of his testimony
by describing how approximately 2 weeks after employ-
ees signed union cards, Respondent installed a new re-
frigerator in the maintenance room for the use of em-
ployees.
Another former employee witness was Richard John-
son who had been employed by Respondent between
March and December. A maintenance electrician, John-
son was fired for punching a timecard for a fellow em-
ployee . Like the other employee witnesses, Johnson
began meeting with Christy and Miller about 2-3 weeks
after signing his card . In a forthright manner, Johnson
told Christy that Respondent had not done anything for
employees and Johnson intended to vote for the Union.
PEMBROOK MANAGEMENT
Christy faulted employees for signing the union au-
thorization cards instead of coming to him and Miller
first. Now the two supervisors were legally precluded
from doing anything to remedy the grievance because
the Union's petition had been filed.
Once about 3-4 weeks after signing a card , Johnson
was on the Plaza roof repairing an air conditioning unit.
Christy joined him there to relate that all of Christy's ex-
periences with unions had been bad ones . Christy stated
he even knew of one employee in a former job who re-
ceived a $4 pay raise as a result of union bargaining. Al-
legedly, the employee then went to his employer private-
ly to say that the raise was too high . Christy concluded
by saying that Respondent was looking at the Plaza situ-
ation closely, and employees would be getting some type
of compensation either by way of bonus or raise. When
Johnson asked for proof, Christy said he could not do
anything like that . Then Christy said if Johnson told the
Union about the conversation , Christy would deny it and
it would be Johnson 's word against Christy's. Christy ad-
mitted a conversation with Johnson on the roof, saying
that he wanted to discuss the Union with Johnson, if
Johnson felt O.K. about it . Christy denied any promise
of salary increase and also denied telling Johnson not to
report the conversation to the Union. I credit Johnson
on this point, finding Christy 's remarks part of an obvi-
ous pattern involving other employees as well.
Johnson , who was then making $4 .25 per hour also de-
scribed a promise made to him by Miller in the next
meeting. Miller stated that he would be getting some
kind of increase without the Union, but that nothing defi-
nite could be said then . Like Christy, Miller denied this
conversation , but I credit it . A few days before he was
fired, Johnson did receive a bonus of $300 from Miller
who stated at the time, this will make up for the Compa-
ny's past misdeeds . A raise in pay was also promised but
never implemented for Johnson.
The final meeting described by Johnson concerned a
group meeting with Miller and Christy and two other
employees, Robles and Martarano , in the Plaza confer-
ence room . At this meeting, Miller explained the Re-
spondent 's insurance and retirement plans . With a union,
Miller stated, all of this would be subject to renegoti-
ation.
After the election , Miller and Christy instituted a sick
leave policy of 5 days per year similar to the former
Hahn policy . Miller admitted this as he also admitted dis-
tribution of the bonus checks which he personally deliv-
ered to employees . As to the sick leave policy, he attrib-
uted this to a single misunderstanding with Palmieri
whom they thought was authorizing them to institute the
plan. When they discovered the policy of the company
was not to have sick leave, they corrected the mistake.
As to the bonus checks , this was merely to atone for past
deficiencies , but was without precedent in Respondent's
personnel practices.
Another witness was current employee, Javier Guillen.
In his meetings with Christy after he signed a card, he
was asked how he felt about unions . Guillen said O.K.,
because employees can work together . Then Christy
noted if the Union comes in, there will be no time to do
what he and other employees used to do . By this, Guil-
1237
len explained , Christy was referring to the occasional
practice of employees playing cards toward the end of
the shift if all the work was done . This had been tolerat-
ed by Christy for some time . Christy also asked the wit-
ness whether he intended to vote for the Union . Guillen
responded that he wanted to hear from both sides. Then
Christy asked if he knew how others would vote. Guil-
len refused to answer this question.
Like the other witnesses , Guillen received a Christmas
bonus of $300 . He also received a pay increase from
$4.25 to $5.35 per hour as of January 21, 1984 (G.C.
Exh. 22). Further, Guillen described a conversation be-
tween himself, Morgan , and Christy in February 1984.
Morgan asked Christy if employees would be getting a
bonus every year . Christy answered that he didn't think
so. This one was due to the election.
In evaluating the credibility of Guillen, I note that as a
current employee his believability is enhanced.5 Howev-
er, as to two portions of his testimony , this presumption
is outweighed by other factors . As to how he and others
would vote in the election, Guillen did not include these
alleged questions in either of two affidavits to the
NLRB . Accordingly , I do not credit it. As to Christy's
alleged remark , that the bonus was only due to the elec-
tion , Morgan did not corroborate this and I do not credit
it. As to all other elements of Guillen's testimony, I
credit them in full.
The other employee fired with Bolanos was James
"Tony" Chase . Employed at the Plaza between October
1982 and mid-October, Chase was also fired for tamper-
ing (theft). During his tenure with Respondent, Chase
rose from maintenance worker, paid $5 per hour, to as-
sistant supervisor , late February or early March-no
change in pay, and then to night shift supervisor , still no
change in pay. Like the other witnesses , Chase had sev-
eral conversations with Christy regarding the Union, be-
ginning about 2 weeks after he signed the authorization
card . At one of these meetings, Chase asked about a pay
raise which had been promised to him by Christy after
Chase had completed 90 days' probation as a supervisor.
Christy responded that he could not discuss the subject
due to the union campaign and everything was on hold.
If the Union did not get in , Christy continued , everyone
would be happy with pay increases . This concept was
repeated over and over, as was the notion that if the
Union did come in , wage increases would not be likely,
because the Union would ask for so much, the Company
would never agree . According to Christy , another bene-
fit would be terminated if the Union came in, the use of
"comp" time . Chase also noted that prior to the election,
some employees were getting overtime, contrary to com-
pany policy . Christy asked Chase at one of the meetings
to use his influence as night -shift supervisor to persuade
other employees to vote against the Union.
One aspect of Chase's testimony was unique . Septem-
ber 24 , 3 days before the election , was Chase's birthday.
He decided to ask for the day off for that reason. After
calling Christy with the request , Chase was momentarily
placed on hold . Then Christy came back and stated,
5 S & R Sundries, 272 NLRB 1352 (1984)
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"You have your birthday off with pay , and just remem-
ber us on Tuesday" (election day). A day off for an em-
ployee's birthday was without precedent.
Chase also testified relative to new T -shirts which the
Company distributed about 2 weeks before the election.
On the front, it read , "Santa Rosa Plaza ." On the day
before the election , Christy said that no one, company or
union , should wear any clothing with insignia on it, to
the election . Meanwhile , the company T-shirts became
an optional item of work uniform.
In evaluating the credibility of this witness, I note not
only the circumstances of his departure from Respond-
ent, but also his two convictions for felony theft, one
that occurred years ago, and one that occurred about 3
months ago , and the dismissal by the General Counsel of
his NLRB charges over his termination . Notwithstanding
all of this, I find him to be a generally credible witness
because his testimony was corroborated by other wit-
nesses or was essentially unrebutted . I credit his testimo-
ny.
Another former employee named Marlina Martarano
testified . Employed between March 1982 and November
when she resigned , Martarano also described the meet-
ings with Christy about the Union . Among other state-
ments made to her by Christy were that unions were
corrupt and would bring division between employees
and management . At another time, Miller stated that
raises could be expected around Christmastime , unless
the Union was voted in. Also direct communication with
management would be lost.
About 2 weeks before the election , Miller asked the
witness how she felt about the Union . To this she an-
swered that she would listen to both sides . Then he
asked how others felt about the Union . She gave him a
list of names indicating who was supporting the Union
and the Company.
After the election, she received a company T-shirt and
a pair of shoes to replace the ones ruined during work.
The final General Counsel witness to testify on the
substantive aspects of the complaint was Myron Ander-
son. As noted above, he was a former employee who
had been terminated for misconduct . He was employed
between February 15, 1982, and December 15. When
Christy first discussed the Union with him, it was in the
company of several other employees . About 2 weeks
Employees Starting/Date
after he signed his card, Anderson was asked why the
Union had been called in. Christy continued that if the
Union won the election , direct communication with man-
agement and some existing benefits would be lost. Em-
ployees would be subject to payment of union dues and
sympathy strikes . Since wages would be negotiable, it
would not be possible to determine what they would be.
Christy promised during the election campaign to re-
place Anderson's work shoes ruined by the cleaning
chemicals . Respondent did so and Anderson brought the
replacement boots into the hearing where he identified
them . In addition , new coveralls, galoshes, T-shirts, and
safety glasses were also promised and at least to Ander-
son, delivered as well , prior to the election.
Christy spoke to Anderson privately before the elec-
tion, telling him that a union wasn 't needed and that the
Employer was prepared to give a raise and bonus after
the election was over . The exact amount could not be
stated . Christy also asked directly how Anderson expect-
ed to vote in the election . The witness answered "no,"
on the Union. Christy asked him to try and persuade
others to do the same . At subsequent meetings , Anderson
observed Christy with a tally sheet of likely "yes" and
"no" votes on the election . Miller also asked him how he
expected to vote. The witness gave the names of likely
"yes" votes at the election . Although Christy denied
asking Anderson about other employees, I credit Ander-
son.
About a week before the election , both Christy and
Miller asked the witness if he knew that Bolanos and
Chase had been fired, as they had been seen by a securi-
ty guard taking something out of a compact room.
Christy described them as "trouble -makers" who had a
taste of the Union. Christy went on to say that the Com-
pany didn 't need to have people like that around to influ-
ence new employees , because what they did, they did to
themselves.
A few days after the election , Anderson received a
pay raise of .35/hour and a $500 bonus. (G.C. Exh. 25.)
When he left his job, the witness was making 5.40/hr,
having started at $4.50/hr.
At the conclusion of the General Counsel's case, the
parties stipulated to a summary of certain employee in-
formation . The list reads as follows:
Increase to Date Bonus Date Amount
Richard Johnson $4.25 (as of 4-13-83) 12-7-83 $300
Steve Montoya 4.25 (as of 3-3-83) $5.35 (1-11-84) 12-7-83 300
Myron Anderson 5.40 (as of 1-26-83) 12-7-83 500
William Bolanos 5.00 (as of 1-26-83)
James A. Chase 5.00 (as of 1-26-83)
Kristyn Corey* 5.30 (as of 1 -26-83)
C. J. Fitzgerald 4.25 (as of 3-3-83) 5.35 (1-11-84) 12-7-83 300
Jerry Dunston 5.00 (as of 1-26-83) 5.35 (1-11-84) 12-7-83 400
Javier Guillen 4.25 (as of 5-1-83) 5.35 (1-11-84) 12-7-83 300
Richard Lee Morgan 5.00 (as of 1-26-83) 5.35 (1- 11-84) 12-7-83 400
Jon Nielson 4.25 (as of 6-8-83)
James Bellinger 5.60 (as of 1-26-83) 5.95 (1-11-84) 12-7-83 500
Jesse Enless 5.40 (as of 1-26-83) 12-7-83 600
Marline Martarano 5.30 (as of 1-26-83)
Ismael Robles 5.00 (as of 1-26-83) 5.35 (1-11-84) 12-7-83 500
. ' PEMBROOK MANAGEMENT
Employees Starting/Date
Don Simonsen 4.25 (as of 4-6-83)
Glenn Benedict' 4.25 (as of 8 -31-83)
John Rojas 4.25 (as of 8-31-83)
David Day' 4.25 (as of 8 -31-83)
Gerald Mitchell ' 4.25 (as of 8-31-83')
'Left Pembrook prior to election . [G.C. Exh. 29.]
B. Analysis and Conclusions
1. Alleged threats of loss of benefits and/or more
onerous working conditions
General Counsel has alleged various violations of Sec-
tion 8 (a)(1) of which the instant matter is the first. Gen-
erally, the test for finding a violation of Section 8(a)(1) is
whether the employer's actions reasonably tended to
interfere with , restrain , or coerce the free exercise of em-
ployee statutory rights .6 I find here and in the compan-
ion section immediately following that employees were
indeed coerced by the threats made and by the promise
of benefits, both of which were contingent on defeat of
the Union. I begin with the employer threats.
The credited testimony above is replete with examples
of supervisor threats to employees calculated to coerce
them in their choice of a bargaining representative.
a. Restricted access to management
I begin with the case of Purolator Products, 270 NLRB
694 (1984). There the Board reversed an administrative
law judge for finding the 8(a)(1) violation because a
single supervisor had made a single remark to a single
employee that under some collective-bargaining agree-
ments, employees cannot take their grievances or prob-
lems, except for routine , work-related ones, to their su-
pervisors , but instead must present them to shop stew-
ards . Compare the facts in Purolator to those in the in-
stant case.
Witnesses Johnson , Martarano , and Anderson all testi-
fied that they were told by Christy that if the Union got
in, direct communication with management would be
lost and employees would be unable to bring their prob-
lems directly to the supervisors . The unstated premise of
these statements particularly when considered in the
overall context of this case , is that as a result of this
change, employees would lose benefits . That loss of com-
munication is equivalent to loss of benefits is made more
clear when Respondent 's memo of September 2 is con-
sidered (R. Exh. 2). This document is reproduced above
at page 695 of the facts. Finally, I turn to the record (Tr.
508-509) for the testimony of Christy himself as to what
he told employees:
Q. Now, did you ever tell any employees that-
or did you ever discuss with any employees that
they couldn't be able to talk to you or Lloyd Miller
if they voted in the union?
A. (No response.)
6 Armstrong Rubber Co , 273 NLRB 233 fn 2 (1984).
Increase to Date Bonus Date Amount
5.35 (1-11-84) 12-7-83 300
1239
Q. Do you recall any converstions along those
lines?
A. Similar to that , right.
THE WITNESS: Okay. What we told them was
that they wouldn't be able to come to us with their
problems on the job and job-related things. They
would have to go to a shop steward to discuss
them . They couldn't come to us for anything.
Q. They couldn't come to you directly.
A. Right.
Q. And during those conversations, did you
relate to them the story that you told us about your
experiences with the union ? Or the one you related
about the contract.
A. Right.
Q. Did you relate that story in the context of
they couldn't-they would not be able to come di-
rectly to Lloyd and you, they would have to go to
the shop steward?
A. Right.
Based on the above analysis , I find Respondent violat-
ed Section 8(a)(1) of the Act.7
b. Loss of other tangible benefits8
In his credited testimony, Bolanos testified regarding
Christy's statements to him: that if the Union got in, all
present benefits might be lost, including the present
system of "comp and make -up" time . These were in par-
ticular jeopardy because they had been formulated by
local management to compensate employees for their
missed pay raises . Because of Bolanos' 8 days of unpaid
absence due to a job injury, the threat seemed calculated
to have a particular impact on him.
Similarly, Chase was particularly concerned about a
pay raise due him after the completion of his 90 days
probation . In response to Chase's inquiry about the miss-
ing raise , Christy claimed that he could not discuss the
matter due to the union campaign. Everything was on
hold, according to Christy. Chase went on to describe
repeated threats to stop all pay raises if the Union got in,
because the Union would ask for so much, the Company
7 See also Sacramento Clinical Laboratory, 242 NLRB 944 ( 1979), enf
denied in pertinent part 623 F .2d 116 (9th Cir 1980)
8 While I have credited the testimony of witness Guillen that he was
threatened with loss of his card playing on company time when the work
was finished early, I note that such incident was not included in General
Counsel 's responses to the Bill of Particulars (G C Exhs I r, y) Ac-
cordingly , I consider the testimony as general background and make no
finding of any violation based on this evidence.
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would never agree.9 Like Bolanos, Chase noted Christy's
statement that "comp" time would be in jeopardy if the
Union came in.
Finally, I note the evidence with respect to senior offi-
cial Palmieri who flew in from New York for the pur-
pose of addressing employees . He told employees that
benefits could change for the worse as a result of collec-
tive bargaining . Using his personal experience as an at-
torney and negotiator , Palmieri used a specific example
of an employee retirement plan that could be in jeopardy
if the Union were voted in.
Respondent contends it was doing no more than exer-
cising the rights under Section 8(c) of the Act ; to wit,
the Company 's arguments and opinions were protected
as they did not contain any threat or reprisal or force or
promise of benefit. I reject this argument and find that
Respondent clearly violated Section 8(a)(1) of the Act by
Christy's statements to employees credited above. Pal-
mieri's statements are a much closer call, but when con-
sidered in the context of this case , I find the violation
here as well.110
2. Alleged promise of benefits
I find here that Respondent violated Section 8(a)(1) of
the Act by promising benefits to employees contingent
upon rejection of the Union."
The evidence here goes hand in glove with that in the
preceding section-that is, the evidence shows a series of
actions having as its object to dissuade employees from
continuing their support of the Union , and thus constitut-
ing interference with the employees ' exercise of their
Section 7 rights in violation of Section 8(a)(1) of the
Act.12
Respondent 's efforts in this respect consist of a multifa-
ceted strategy.
a. Promise of pay increase and bonus
It is true as Respondent argues in its brief that employ-
ees were never promised a specific amount . However,
this is not the test of an 8(a)(1) violation . What they did
promise was clearly coercive in nature . For example, Bo-
lanos was asked for his idea of a fair wage . 13 When he
9 See Lawson Printers, 271 NLRB 1279 fn 1 (1984).
10 Tampo Mfg., 245 NLRB 791 (1979), compare International Paper
Co., 273 NLRB 615 (1984)
11 See NLRB Y. Rexall Corp, 725 F 2d 74, 76-77 ( 8th Cir 1984) See
also McCormick Longmeadow Stone Co, 158 NLRB 1237 (1966), where
the administrative law judge stated with Board approval.
An employer 's legal duty in deciding whether to grant benefits while
a representation case is pending is to determine that question precise-
ly as he would if a union was not in the picture . If the employer
would have granted the benefit because of economic circumstances
unrelated to union organization , the grant of those benefits will not
violate the Act On the other hand , if the employer 's course is al-
tered by virtue of the union 's presence , then the employer has violat-
ed the Act , and this is true whether he confers benefits because of
the union or withholds them because of the union
12 Colonial Haven Nursing Home, 218 NLRB 1007, 1008 ( 1975), enfd
542 F 2d 691 (7th Cir 1976)
19 The solicitation of employee grievances , in the absence of evidence
showing a past practice of doing so, is itself a violation of Section 8(a)(1)
of the Act Reliance Electric Co, 191 NLRB 44 ( 1971), enfd . 457 F2d
503 (6th Cir 1972), Schnadig Corp, 265 NLRB 147, 156 (1982)
answered he was told the Company couldn't go that
high, but they might grant a bonus if the Union didn't
get in.
Witness Morgan credibly testified that Christy prom-
ised him a substantial pay increase or bonus if the Union
was not voted in. Like Bolanos, Morgan was solicited
for grievances . When he answered that Christy was not
responsive to complaints , Miller granted a remedy on the
spot, suggesting that Morgan could bypass Christy and
come directly to Miller.
The promise of future benefits was not limited to
Christy and Miller . Palmieri also stated at group meet-
ings that management was now aware of major problems
such as wage uncertainties . He asked for another chance
to rectify problems. Of course there is evidence in the
record that management did know of the wage problems
long before the union campaign began. Witness a memo-
randum prepared by Christy for Miller in late February
or early March , relative to significant pay discrepancies
existing at the Santa Rosa Plaza . (R. Exh . 7.) This was
after Regional Manager Petrie said there would be no
wage increases. I asked Miller about the memorandum:
In February or March , no raises; prior to the election
Palmieri and Christy are promising raises and bonuses;
and after the election, the raises and bonuses are actually
granted . What explanation , Miller responded:
I don 't know . I was talking to my regional manager
about it, . . . and I didn 't get an answer . I would
never get an answer. (Tr. 634-635)
Witness Johnson was still another employee who de-
scribed a conversation with Christy up on the Plaza roof,
wherein the latter promised him that employees would
be getting an increase in compensation either by way of
bonus or raise . Essentially , the same promise of increased
pay was also made to Johnson by Miller at a later meet-
ing.
Chase too testified that Christy promised him a pay in-
crease he would be happy with, if the Union did not get
in. Martarano also testified that Christy promised her a
raise around Christmastime, if the Union was defeated.
Finally, Anderson testified to remarks made by Christy
before the election promising a raise and bonus after the
election was over.
Many of the promises made to the employees noted
above were kept. Summary of bonuses and raises made
after the election is contained in General Counsel's Ex-
hibit 29, which is reproduced supra . The fulfillment of
the promises I have found were made constitutes further
8(a)(1) violations.14
b. Promise of work shoes and other items
In meeting with Bolanos , Christy mentioned the possi-
bility of replacing Bolanos' shoes , damaged applying wax
remover to floors of the mall. This offer was new, but
14 The Employer 's promise of a benefit and later delivery of the bene-
fit to discourage employee exercise of Sec 7 rights, i e, uncoerced selec-
tion of a bargaining representative , constitutes violations of Sec 8(a)(1)
Dawson Carbide Industries, 273 NLRB 382 (1984), Telegram Tribune Co,
268 NLRB 1114 (1983)
PEMBROOK MANAGEMENT
the damage had occurred sometime before the union
campaign started.
Witness Anderson also suffered damage to his own
shoes during his work . Prior to the election , Anderson
was promised and received work boots , which he
brought to the hearing , new coveralls , golashes, T-shirts,
and safety glasses.15
In sum, I find that Respondent violated Section 8(a)(1)
of the Act by the promise of work shoes and other items
to the employees in question.' e
3. Alleged coercive interrogations
As the facts indicate , several meetings were held be-
tween supervisors and employees . Sometimes group
meetings , sometimes individual meetings , they seem to
me calculated to coerce employees in the exericse of
their Section 7 rights and I so find.
In analyzing the issue presented, I must begin with the
recent case of Rossmore House, 269 NLRB 1176 (1984).
To a degree , this case changed prior Board law. Now su-
pervisor interrogation is to be evaluated on a case-by-
case basis with proper consideration given to such fac-
tors as ( 1) the background , (2) the nature of the informa-
tion sought, (3) the identity of the questioner , and (4) the
place and method of interrogation . Quite clearly, the
Board added that its decision does not grant employers a
license to engage in interrogation of their employees as
to union affiliation or activity.
In reviewing relevant facts here, with Rossmore House
in mind , I note that General Counsel presented seven
employee witnesses who described one or more meetings
with Christy, sometimes including Miller, and a series of
group meetings with Palmieri . None of these witnesses
nor any of Respondent 's testified that any assurance of
reprisals were given to employees . ' 7 The timing of these
meetings, shortly after the Respondent received the
Union's letter of July 29 (G.C. Exh . 20), indicates the
meetings were part of the Company's overall strategy to
oppose the Union 's organization drive . While the holding
of the meetings by themselves was not unlawful , the con-
tent was, under the circumstances of this case . These fac-
tors tend to show the coercive nature of the interroga-
tions.
I have described above the background of the interro-
gation, the identity of the questioners , and the descrip-
tion of Christy 's office . I now review the nature of the
information sought . In the case of Bolanos , an open and
unrepentant union supporter , Christy and Miller attempt-
ed to solicit grievances in order to neutralize his support
for the Union , by impliedly promising to correct the per-
ceived inequities . The same method of soliciting griev-
ances was used in the questioning of Anderson.18
15 Witness Martarano also received replacement shoes at company ex-
pense , but there is no evidence of a promise of this benefit before the
election
16 See American Geri-Care, 270 NLRB 95 (1984)
i7 DeQueen General Hospital v NLRB, 744 F 2d 612 (8th Cir. 1984)
19 Saint Luke 's Hospital, 258 NLRB 321 (1981), Penn Color. Inc, 261
NLRB 395, 406 (1982)
1241
Another employee questioned was Guillen who was
asked by Christy how he felt about unions . This employ-
ee was not previously known to supervisors as a union
supporter. It is coercive interrogation for a supervisor to
ask an employee to respond as to whether he or she
favors a union .' 9 It was at this meeting that Christy told
Guillen that he might lose his card playing time if the
Union came in.
Another coercive interrogation was described by Mar-
tarano . At one meeting Christy told her that unions were
corrupt and would cause division between management
and employees . Later, at another meeting , Christy ob-
tained from her a list of names broken down as to proun-
ion and antiunion.
The final witness alleged to be coercively interrogated
was Anderson . At various times, he was asked by
Christy and Miller how he would vote and he stated,
"No." Then he was asked to persuade others to vote the
same way. Like Martarano , Anderson gave Christy a list
of likely "yes" voters at the election . Anderson also cre-
dibly testified to a conversation about a week before the
election with Christy and Miller . In that conversation,
the supervisors seemed to link Chase 's termination as
much to his union activities as to his misconduct. De-
scribing Chase as a "trouble-maker," who had a taste of
the Union , Christy went on to say that the Company
didn't need people like that around to influence new em-
ployees . While the statement is somewehat ambiguous, a
fair interpretation in the context of this case is that union
activists are prone to commit misdeeds and get fired. It is
coercive and violates the Act.20
I find that the conversations alluded to above all vio-
lated Section 8(a)(1) of the Act because the surrounding
circumstances and content of the meeting all suggest an
element of coercion or interference . 21 I find further that
the Rossmore House case does not apply to render the
meetings and Interrogations lawful . Finally, I note the
case of El Rancho Market, 235 NLRB 468 (1978), enfd.
603 F.2d 223 (9th Cir. 1979), which bears a striking re-
semblance to the instant case with respect to coercive in-
terrogations , solicitation of grievances and other viola-
tions . The Board found several 8(a)(1) violations as I
have here. In one significant way, regarding appropriate
remedy , it is distinguishable from the instant case and I
will return to the case below.
4. Other coercive acts
Chase credibly testified that about 2 weeks before the
election , Respondent distributed T-shirts with the logo in
front reading "Santa Rosa Plaza ." (G.C. Exh. 24.) On
the day before the election, Christy asked Chase not to
wear any articles bearing either union or company insig-
nia to the election.
In analyzing this section of the case, I begin with the
case of Pillsbury Co., 178 NLRB 226 (1969), where the
Board stated that the wearing of prounion insignia by
union observers does not in itself constitute interference
1 ° Asociacion Hospital del Maestro , 272 NLRB 853 (1984).
20 L. A Baler, 265 NLRB 1579 (1983 ) Compare instant case to Neo-
Life Co. of America , 273 NLRB 72 (1984)
2' Mead Corp. v NLRB , 697 F 2d 1013, 1025 (11th Cir. 1983)
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with an election .22 Thus, there appears no logical basis
for Christy's order. Yet the real issue presented by the
case is whether it is the responsibility of the Employer to
assume the Board 's role of policing the election. Under
the implied threat of company discipline , Christy would
determine the style of dress of voters. If an employer
could determine the style of dress, might some employ-
ees reasonably conclude that an employer could dictate
the actual vote. Any concern relative to a possible unfair
election should have been directed to the Board agent
conducting the election . It simply is not the job of a
party to the election to determine any aspect of the pro-
cedure which is unrelated to job efficiency, whether or
not the promulgated rules apply equally to both sides. I
find the usurping of the Board 's neutral role as reflected
in the facts, reasonably tends to coerce employees and
violates Section 8(a)(1) of the Act. Alternatively, I find
that Christy violated the act because under Board law
the wearing of union or company insignia while voting
would not have interfered with the election . According-
ly, issuing an order for an irrational purpose is coercive
and violates Section 8(a)(1) of the Act.
5. The postelection award of pay raises
I have noted elsewhere in this decision that top man-
agement knew of the pay inequities at the Santa Rosa
Mall in late February or early March . (R. Exh. 7.) I also
have found that various employees were promised pay
raises or bonuses either unconditionally or contingent
upon the Union's defeat. I also have reproduced in toto
above, a summary of the postelection awards of bonuses
and pay raises . (G.C. Exh. 29.) These awards were made
after the Union lost the election in corroboration of the
testimony provided by the General Counsel 's employee-
witnesses (mostly former employees ). Now the question
is whether the award of these pay raises violate the
Act.23 Very little time is needed here . I find the January
1984 pay raises violated Section 8(a)(1) of the Act be-
cause the raises were granted in fulfillment of the explicit
or implicit promises made by Christy, Miller, and Pal-
mieri . 24 Respondent contends that Respondent normally
gave pay raises at this time. However, it did not do so in
January, the year before when it purchased the Mall
property. 25 Moreover , its usual policy was to give pay
raises in December, not January . Whether Respondent
would have granted pay increases in January 1984,
absent a union campaign is a matter of conjecture. How-
ever, in the context of this case and the credited testimo-
ny, there is little question that the raises violated Section
8(a)(1) of the Act and I so find.
6. The objections
The Regional Director's report on objections is con-
tained at General Counsel's Exhibit 2e in the record. In
its brief (p. 40), Respondent moves for the dismissal of
22 See also Firestone Textiles Co., 244 NLRB 168 (1979).
23 At p 21 of its brief, Respondent notes that the December bonuses
are alleged to be a refusal to bargain violation only . I agree with this
contention Accordingly, the bonus issue will be considered below
24 Cf. Village Thrift Store, 272 NLRB 572 ( 1984).
25 NLRB Y. Pandel-Bradford. Inc. 520 F 2d 275, 280 (1st Cir. 1975).
this section of the case on the grounds that the objec-
tions are too vague . I must deny Respondent 's motion to
dismiss as it is clear that some of the 8(a)(1) violations
found above are coextensive with certain of the objec-
tions . Conduct which is violative of Section 8(a)(1) of
the Act is, a fortiori, conduct which interferes with the
results of an election unless the unlawful conduct is so de
minimus as to make it virtually impossible to conclude
that the violations could have affected the results of the
election . See Custom Trim Products, 255 NLRB 787
(1981); Super Thrift Markets, 233 NLRB 409 (1977); Dal-
Tex Optical Co., 137 NLRB 1782 ( 1962). In determining
whether an employer's unfair labor practice conduct is
de minimus with respect to affecting the results of an
election , the Board takes into consideration the number
of violations, their severity, the extent of dissemination,
the size of the unit , and other relevant factors. Caron
International, 246 NLRB 1120 (1979).
Applying the foregoing principles to the issues raised:
by Objection 2 (Improper and Unlawful Election Cam-
paigning, Electioneering and Other Misconduct), I have
found above, that Christy's order not to wear union T-
shirts to the election violates the Act; by Objection 4
(Unlawful Promises of Benefit), I have found above sev-
eral promises of pay raises, bonuses, and other benefits;
by Objection '6 (Threatening Statements and Threatening
Conduct), I have also found above several examples of
threats made by Christy and Miller to employees.
As to the remaining objections, I will recommend they
be overruled as lacking in merit . More specifically, there
was no evidence presented as to Objection 1 (Surveil-
lance, Appearance of Surveillance and Remaining in the
Voting Area) during the election and as to Objection 7
(Instructing Eligible Voters Not to Come to Vote on
Election Day). There was insufficient evidence with re-
spect to Objection 5 (Giving Benefits , Material Awards
and Promotions to Employees). As to the refrigerator in-
stalled in the maintenance room for employee use, I note
the critical period began on July 29 with the filing of the
Union's election petition (G.C. Exh. 2d); the refrigerator
was ordered I day before on July 28 (R. Exh. 14). Ac-
cordingly, the event does not fall within the critical
period and this conduct will not be considered as
grounds for setting the election aside . Finally, as to Ob-
jection 8 (Other Acts of Misconduct), the objection is
too vague and cannot and will not be considered for that
reason.
7. The bargaining order
Pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), General Counsel requests a bargaining order. At
page 24 of his brief, it is further stated that the Gissel
class 2 "less extraordinary" cases marked by "less perva-
sive" practices should apply to the present case . I agree
that the class 2 bargaining order is in issue . I turn now to
discuss the relevant factors upon which a proper decision
will rest.26
26 According to the official tally of ballots (G C Exh 2c), the results
of the September 27 election were approximately 15 eligible voters, of
which 7 cast ballots for and 7 cast ballots against the Union , with no bal-
lots challenged
PEMBROOK MANAGEMENT
a. Small size of the unit
In Horizon Air Services, 272 NLRB 343 (1984), the unit
of employees number 12 . This small number was stressed
by the Board in finding lingering effects of Respondent's
misconduct which is not readily disspelled . In the instant
case, the unit consisted of 16 employees (G.C. Exh. 5)
roughly divided between a day and evening shift . Clear-
ly, the size of the unit weighs in favor of the bargaining
order because it is likely the coercive practices were dis-
seminated to all employees.
b. Level of supervision committing unfair
labor practices27
The 8(a)(1) violations found were committed primarily
by Christy. Miller, the highest local supervisor played a
significant role, and Palmieri , a high-ranking company
official from New York had a lesser role in the case.
When all is considered this factor too must be weighed
in favor of a bargaining order.
c. The swiftness or suddenness of Respondent's
unlawful acts in response to the Union's
organizing campaign2s
The timing of Respondent's unfair labor practices "in-
dicates a concentrated effort to nip union organization in
the bud."29 As noted in the facts, as soon as Respondent
learned of the Union 's demand for recognition, Christy
and Miller began a series of meetings with employees at
which most of the misconduct occurred. There is little
question that Respondent decided to oppose the Union
with all the means at its disposal , lawful and unlawful.
d. Employee turnover
Of the 16 employees in the bargaining unit, only 4
were still working and 1 was on sick leave as of the
hearing . Approximately 14 months elapsed between the
filing of the union petition and the hearing date. As Re-
spondent candidly mentions (Br. 46), the Board has in
the past refused to consider employee turnover occurring
after the election , in order to deter employee miscon-
duct.S0
In Highland Plastics, footnote 9, the Board notes its re-
spectful disagreement with the courts of appeal who
have seen employee turnover as a factor to be consid-
ered in determining the propriety of a bargaining order.
Respondent goes on to contend that the case of Gourmet
Foods, 270 NLRB 578 (1984), has undermined the
premise of the Board 's earlier decisions , such as Highland
Plastics. I cannot agree with this argument. In Gourmet
Foods, the Union never had a majority of unit employees.
In the instant case, I assume without finding that the
Union did have a majority of unit employees, expressed
through the signing of the Union's authorization cards.
The difference between never having a showing of ma-
jority support, and having a majority at the time the em-
27 Midland Ross Corp . Y. NLRB, 617 F 2d 977, 987 (3d Cir 1980)
28 Wright Plastics Products , 247 NLRB 635 (1980)
29 NLRB v. Circus Circus, 656 F. 2d 403 , 406 (9th Cir 1981)
2° Highland Plastics, 256 NLRB 146, 147 and in . 9 (1981), Martin City
Ready Mix , 264 NLRB 450 , 452 (1982)
1243
ployer began its unfair labor practices is quite consider-
able.
I find that the Board continues to hold that normal
employee turnover is entitled to little or no weight in de-
ciding whether a bargaining order should issue . 31 I fur-
ther hold that I am bound to apply Board law where
there is a conflict with any or all courts of appeals.32
Accordingly, under current Board law , I am required to
weigh employee turnover neither for nor against a bar-
gaining order. Rather, it is simply not relevant.33
e. Absence of "Hallmark" violations
In Horizon Air Service, supra, the Board affirmed the
granting of a bargaining order and gave examples of
"hallmark violations" including such employer misbehav-
ior as the closing of a plant or threats of plant closure or
loss of employment , the grant of benefits to employees,
or the reassignment , demotion , or discharge of union ad-
herents in violation of Section 8(a)(3) of the Act.
In the instant case, there were no 8(a)(3) violations al-
leged nor proven. It is true that Respondent did grant
benefits to employees and made an ambiguous threat to
discharge employee "troublemakers," who commit mis-
conduct. However these violations , serious as they are,
do not seem sufficiently serious to impose upon Respond-
ent's current employees a bargaining order.34
As has been shown above, all relevant factors save one
indicate that a bargining order is warranted in this case.
Yet based upon what I perceive to be an absence of suf-
ficiently serious "hallmark" violations, I will not recom-
mend a bargaining order. In reaching this decision, I rely
upon L. M. Barry & Co., 266 NLRB 47 ( 1983), a case
where a series of 8(a)( 1) violations were found similar to
those found in the present case; Sangamo Weston, Inc.,
273 NLRB 256 (1984), a case where Respondent com-
mitted a single "hallmark" violation and relatively few
nonhallmark violations (soliciting grievances , promise of
benefit , and coercive interrogation) almost identical to
the present case . 35 I particularly rely upon the case of
21 I note in passing the case of Windsor Industries, 273 NLRB 1157
(1984) There the Board issued a supplemental decision , after the Second
Circuit Court of Appeals remanded the case for the Board to consider,
among other factors, employee turnover on whether a bargaining order
was justified In addition , the court directed the Board to apply the law
of the circuit in reaching its supplemental decision In obeying the court,
the Board did not indicate any change in its own longstanding policy of
not considering employee turnover on the issue of bargaining orders.
82 Iowa Beef Packers, 144 NLRB 615 (1963)
22 In this case, there is evidence of extraordinary employee turnover
not connected to the Employer 's unfair labor practices. Thus Bolanos
and Chase were discharged for attempted theft, Johnson and Anderson
were terminated for violating company policy against having anyone but
the named employee punch in his own timecard Of the remaining former
employees who testified , Morgan , Martarano , Robles, Nielson , and Corey
can be said to represent normal turnover . Despite these reasons for em-
ployee departure , all of which are unrelated to the Employer's unfair
labor practices , I can find no basis under present Board law to consider
employee turnover in this case . But see Balsam Village Management Co,
273 NLRB 420 ( 1984).
34 Compare El Rancho Market, supra, 235 NLRB at 475-476
95 In the Sangamo Weston case , the Board noted "the principle that
generally a secret-ballot , Board-conducted election is the preferred
method of ascertaining employee choice "
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mariposa Press, 273 NLRB 528 (1984). There, the Board
noted several incidents of 8(a)(1) conduct involving argu-
ably more serious conduct than that in the present case.
The Board also noted the small size of the unit and the
dissemination of the threats of loss of employment to em-
ployees. Yet in the absence of sufficiently serious "hall-
mark" violations, the Board refused to issue a bargaining
order and directed that a second election be held.
In addition to the failure of evidence in reflecting suffi-
ciently serious "hallmark" violations, the evidence does
not show a likelihood of recurrence. Rather the reverse
is true. At the time of the unfair labor practices, Re-
spondent had only controlled the Plaza for about 6
months. Regional supervision for the West Coast was not
firmly established. There was no evidence of local labor
counsel. All of this contributed to Respondent's unlawful
acts and has now been changed. Further, Palmieri de-
scribed in favorable terms, Respondent's relations with
labor unions in other shopping malls managed by it. This
indicates Respondent is not intractable in dealing with
union organizing campaigns.
Part of Respondent's unlawful conduct appears to be
the result of less than complete communication between
the mall and headquarters in New York.36 This too ap-
pears to have changed with Miller and Christy now fully
acquainted with Respondent's policies. For the reasons
stated above, I find that the chances of erasing the ef-
fects of Respondent's unfair labor practices, and of con-
ducting a fair rerun election through the use of tradition-
al remedies is great.
Having found a bargaining order unwarranted, I find it
unnecessary to rule on whether the Union represented a
majority of the unit employees based on valid authoriza-
tion cards.37
For the same reason, it is unnecessary to consider on
the merits the refusal to bargain allegations , and I will
recommend that they be dismissed.38 Notwithstanding
this recommendation, I agree with Respondent that at
least one of the 8(a)(5) allegations lack merit irrespective
of the bargaining order issue: distribution of free T-
shirts.39 The other allegations , however, regarding the
preelection birthday holiday for Chase, postelection sick
days, and the postelection granting of bonuses cannot be
disposed of on their merits in any summary fashion.
Rather they fail because the necessary predicate of the
bargaining order is missing.
•16 For example , Respondent initially had a standard policy that em-
ployees were not entitled to sick leave Supposedly, Christy and Miller
misunderstood Palmieri to authorize them to institute a sick leave policy
Later, this change was corrected back to the original policy of Respond-
ent As I note below , in light of my ruling on the bargaining order, I
make no definitive findings on this evidence.
117 Wm T. Burnett & Co., 273 NLRB 1084 fn 3 (1984)
" If a bargaining order had been warranted in this case, it would have
been necessary to decide pursuant to Trading Port. Inc, 219 NLRB 298
(1975), whether Respondent made unilateral changes in violation of Sec
8(a)(5) of the Act since the duty to bargain with the Union would have
commenced , "as of the time [it embarks] on a clear cause of unlawful
conduct or has engaged in sufficient unfair labor practices to undermine
the Union 's majority status "
"0 R. L White Co, 262 NLRB 575, 576 ( 1982).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW40
1. Pembrook Management , Inc. is an employer within
the meaning of Section 2(2) of the Act engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge 115, Local
Lodge 1596, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the following conduct, Respondent
violated Section 8(a)(1) of the Act:
(a) Threatening employees with loss of benefits and
more onerous working conditions if the Union won the
election.
(b) Promising employees increased benefits if the
Union did not win the election.
(c) Coercively interrogating employees and by com-
miting other coercive acts such as directing employees
not to wear union T-shirts to the election.
(d) Conferring postelection benefits upon employees.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Employer did engage in conduct which affect-
ed the results of the election conducted on September 27,
1983, in Case 20-RC-15659, and a second election is
warranted.
6. Other than specifically found herein, Respondent
did not engage in other unfair labor practices.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act, it will be recommended that it
be ordered to cease and desist therefrom and take certain
affirmative action which is necessary to effectuate the
policies of the Act. In particular, it will be recommended
that Respondent be ordered to post the notice to em-
ployees attached hereto as "Appendix." Further, having
found that the Union's Objections 2, 4, and 6 to the elec-
tion were sustained by the evidence, I shall recommend
that the election of September 27 be set aside, and that a
new election be ordered by the Regional Director as
soon as feasible.
[Recommended Order omitted from publication.]
40 Respondent's motion to reopen the record to take additional evi-
dence is denied