Carrom Division, Affiliated Hospital Products

CARROM DIVISION, AFFILIATED HOSPITAL PRODUCTS Carrom Division, Affiliated Hospital Products, Inc. and United Furniture Workers of America, Local 282, AFL-CIO. Cases 26-CA-7337 and 26-CA- 7403 September 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 6, 1979, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel, The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. I While the record raises substantial suspicions regarding the discharge of employee Letha Henderson, we agree with the Administrative Law Judge's conclusions that the General Counsel failed to meet the burden of proving that Respondent acted with an illegal motive. Member Murphy agrees that the Respondent did not violate Sec. 8(a)(1) of the Act by its reference to union supporters as "clowns" in its July 28 letter to employees. However, contrary to the Administrative Law Judge, she does not rely upon Hollywood Ceramics Company, Inc.. 140 NLRB 221 (1962), in reaching this finding. See her separate opinions in General Knit of California, Inc.. 239 NLRB 619 (1978), and Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977). DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge: This case was heard before me at Memphis, Tennessee, on December 13 and 14, 1978. The original charges in Case No. 26-CA- 7337 were filed by United Furniture Workers of America, Local 282, AFL-CIO (herein called the Union), on August 4, 1978, amended on August 25, 1978, and culminated in the issuance of a complaint and notice of hearing dated August 28, 1978. The Union filed additional charges in Case No. 26-CA-7403 on September 8, 1978, amended on November 22 and further amended on December 4, 1978. Thereafter an order consolidating the aforecited cases, amended complaint, and notice of hearing issued dated Oc- tober 13, 1978 (amended at the hearing). It is principally alleged that Carrom Division, Affiliated Hospital Products, Inc. (herein called Respondent), refused to reemploy Letha Henderson, its former employee, be- cause of her activities on behalf of the Union and her in- volvement in previous charges in violation of Section 8(a)( ), (3), and (4) of the National Labor Relations Act, as amended, (herein called the Act). Further, it is alleged that Respondent demoted former employee James Sanders from leadman and reduced his wages in violation of Section 8(a)(l) and (3) of the Act. Still further, it is alleged that Respondent wrote a letter to all employees describing cer- tain of its union-supporting employees as "clowns," thereby, inter alia, subjecting them to ridicule, in violation of Section 8(aXI) of the Act. Respondent filed an answer conceding, inter alia, jurisdictional facts, but denying all allegations that it committed any unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, and after careful consideration of the post-trial briefs, I find as follows: FINDINGS OF FACT I. JURISDICTION Respondent, Carrom Division, Affiliated Hospital Prod- ucts, Inc., a corporation doing business in the State of Mis- sissippi from its facility in Sardis, Mississippi, is engaged in the manufacture of hospital furniture. During the past 12 months Respondent has derived revenue from the operation of its Sardis, Mississippi, plant, its only facility involved herein, in excess of $50,000 directly from points outside the State of Mississippi. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Respondent admits, and I find, that United Furniture Workers of America, Local 282, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting Letha Henderson began working for Respondent at its Sardis, Mississippi, plant on September 4, 1974, and was first terminated on April 10, 1975. Thereafter she was re- hired and terminated on several other occasions the last termination occurring on May 4, 1978.' Henderson testified that prior to her termination on May 4, 1978,2 she was ac- tively involved in the Union's organizational efforts. Thus she asserted, inter aria, that she attended union meetings, signed a union card, and solicited union cards from other I The parties stipulated and I find that Henderson was first rehired on November 24. 1975, and worked until September 17, 1976. Further, she was again rehired on December 9, 1976, and worked continuously until May 4, 1978. when she was last employed by Respondent. All dates hereinafter refer to 1978 unless otherwise indicated. 245 NLRB No. 89 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD emplyees. On May 25 charges were filed in Henderson's behalf in Case 26-CA-7216 alleging that Respondent laid her off on May 4 and refuses to recall her because of her union activities. On June 22 the charges were dismissed (Resp. Exh. 7(b)), and the appeal thereon was subsequently denied. In the letter denying the appeal dated July 20 (Resp. Exh. 7(d)), it was noted that the investigation re- vealed an absence of any probative evidence showing that Respondent had knowledge of Henderson's union activity' or that Respondent engaged in a Section 8(a)(1) violation "of any kind." Henderson testified that after she was terminated she continued to support the Union's organization efforts and distributed union leaflets to employees as they passed through the gate leading to Respondent's plant. Personnel Director William Sanders Sanders conceded that at least on one such occasion he observed Henderson handing out union literature. On June 6 Henderson reapplied for a job as a machine operator in the metal department and submitted a new ap- plication (G.C. Exh. 15). Henderson testified, with some corroboration from employee Harry Dunnigan, that around April 1978 Helmar Moran, vice president of opera- tions, at a meeting attended by Personnel Director Sanders and by all the employees, informed them that there would not be any layoffs and that he would transfer employees from the wood department (wherein Henderson worked) to the new metal department rather than lay off anyone. Mor- an and Sanders denied that employees were told that they would be transferred to the metal department before any of them would be laid off or that there would not be any layoffs. Sanders testified that employees inquired regarding the possibility of wood department employees working in the metal department, and they were told that it would not be feasible for the Company to have to retrain them for metal and then find replacements and train new employees in the wood department.5 Personnel Director Sanders testified that he considered Henderson's June 6 application for a machine operator po- sition in metal and did not hire her because most of the jobs in that department are skilled, and she had no such experi- ence in working in metal. He asserted further that when unskilled jobs were available in the metal department, her application had already been outstanding for more than 30 days and therefore was no longer current.6 Henderson testified that she attempted to reapply and file new applications on August 8 and again on November 21, but the receptionist on those occasions told her that the 3 Henderson's maiden name, Hanson, is set forth in the charges in Case No. 26-CA-7216 as the alleged discriminatee. In an affidavit given by Henderson to the Board agent on June 2 in connection with the charges in Case 22-CA-7216, she stated: "I never passed out union literature, button or badges. The only way that the com- pany could have found out about my union activity is if someone snitched on me." (Resp. Exh. I, p. 3). In Henderson's affidavit of June 2 she stated that Moran told her at some unspecified time apparently prior to the above-noted meeting "that he would not be transferring employees from wood to metal" (emphasis supplied.) This apparent conflict and other matters related to Henderson's credibility will be treated more fully below. 6 The following is printed at the end of each application form: This application will remain in active status for 30 days. If you wish to renew it after that time you must apply again in person. company was not accepting applications. Personnel Direc- tor Sanders asserted that if Henderson was not given an application on those occasions, the Company had to have been displaying its "Applications Not Accepted" notice (Resp. Exh. 4), and there are no exceptions thereto. Hen- derson acknowledged that the receptionist pointed out the sign to her on the November occasion and told her to come back when that sign was down. General Counsel witness Dunningan testified that Respondent has utilized such a sign for at least 5 years. On September 8 the Union filed a new charge on behalf of Henderson in Case 26 CA-7403 alleging not only, as it had earlier in previously dismissed Case 26 CA-7216, that Respondent unlawfully refused to recall Henderson since on or about May 4 but additionally that Respondent was violating Section 8(a)(1), (3), and (4) by not rehiring her. Respondent, however, contends that Henderson was ter- minated on May 4 along with six other employees and one supervisor for lack of work, and she had to reapply in order to work again, as she had when Respondent had terminated her in the past. Respondent asserts that Henderson would be considered for employment if she applies at a time when Respondent is accepting applications and if she is qualified for the opening. Moreover, Respondent argues that the new charge is virtually the same as the previous one and is there- fore res judicata. James Sanders (also an alleged discriminatee) began working for Respondent around July 1974. In or around late May 1978 Sanders asked Vice President Moran for a raise. Moran told Sanders that he would examine his file and discuss it further if the records reflected that his work was satisfactory. About 2 weeks later Moran told Sanders that he had reviewed his file and would promote him to leadman in the mill department with a raise, but pointed out that there would be a probationary period.? Sanders testifed that Moran told him that he did not want him to think that he was getting the promotion because of the Union but rather because he believed that he, Sanders, was capable of doing the job. On June 16 the Union filed a petition for a certification election in Case No. 26-RC-5786 for a unit consisting of Respondent's production and maintenance employees at the Sardis, Mississippi, location.s Sanders testified that he was involved in the Union's organizational drive by attend- ing union meetings, handbilling, and soliciting employees to sign union authorization cards. According to Sanders, he first wore a union T-shirt on July 28, the same day he lost his leadman position and raise. While Moran conceded that he saw Sanders wear a union T-Shirt, he could not recall the precise day.9 I All leadmen serve a -month probationary period. Sanders served from Monday, June 26, until Friday, July 28. * On July 19 the Regional Director issued a Decision and Direction of Election in Case 22-RC-5786, finding, inter alia, that leadmen. including James Sanders were in the unit, as asserted by the Union (the Petitioner therein), and not statutory supervisors. After the Board subsequently granted review and remanded the case to the Regional Director for further action, the parties on September 12 executed a Stipulation for Certification Upon Consent Election with a scheduled election date of Friday, October 13. The record herein does not disclose any further disposition of the representation case. Presumably the election was blocked by the instant charges. 9 The General Counsel's witness Dunnigan corroborated Sanders concern- ing the July 28 date when he and Sanders first wore union T-shirts. but in his affidavit (not in evidence) he indicated that it was on July 21. 704 CARROM DIVISION. AFFILIATED HOSPITAL PRODUCTS On July 28, the same day that James Sanders was de- moted, Vice President Moran wrote a letter to all employ- ees (G.C. Exh. 12) describing alleged union harassment of employees who elected not to sign union cards and noting another union matter as follows: I noticed that a couple of employees wore their clown T-shirts to work today. Again, I ask you, is this type of person you want making decisions for you? I guess these people think the whole Union question is a game. We don't. We think it is very serious, and we suggest that you have nothing to do with the clowns in the T- shirts. The General Counsel contends that Moran's letter to em- ployees, as set forth in pertinent part above, independently violated Section 8(a)(1) of the Act by coercing employees who supported the Union and subjecting them to ridicule. Further, the General Counsel contends that Sanders' demo- tion and concomitant loss of pay were in retaliation for his union involvement, including wearing a union T-shirt and that Respondent thereby violated Section 8(a)(3) and () of the Act. Respondent, however, denies that anything contained in the letter is violative of the Act but rather must be viewed, inter alia, in an election campaign context wherein both sides referred to each other in uncomplimentary terms. With regard to Sanders' demotion Respondent contends that he was not performing satisfactorily as leadman, and in any event there was not enough work in the mill depart- ment to justify maintaining the position. At the time of the instant hearing Respondent had not yet appointed a new leadman in that department. B. Discus.sion and Conclusion I. Letha Henderson The record discloses that Respondent terminated seven employees on May 3 and 4 for lack of work, including Hen- derson and Ruth Tarver, who were both employed in the finishing department. As noted previously, the charges in Case 26 CA-7216, filed on May 26, alleged that Henderson's termination and Respondent's failure to recall her were predicted on her union activities, and these charges were dismissed and the appeal thereon was denied. The record discloses that on June 6, while the aforenoted charges were still being investigated, Henderson reapplied for a job as a machine operator in the new metal depart- ment. The record also reveals that Respondent considered Henderson a good worker with an ability to learn quickly. Thus on occasion Respondent temporarily shifted her to help out with the work in other departments. Personnel Di- rector Williams Sanders asserted that he considered Hen- derson's application for the machine operator's position and concluded that she was not qualified to handle a skilled machine operator's position in metal. 0 Henderson had nev- o0 Henderson stated in an affidavit dated June 19 (Resp. Exh. 2, p. I. that she told Personnel Director Sanders at the time she was terminated that she would not come back to work for the Company because she did not like the way Plant Superintendent Vinson and his wife ran the plant and her depart- ment, respectively. As Sanders did not advance this as a reason for not rehiring Henderson. I deem that any reliance thereon is inappropnate and too speculative. er worked in the metal department, which became opera- tional around January 1978, and conceded that she did not know anything about that department. The General Counsel points out with some appeal that Robert Lovett applied on the same day as Henderson, and he was hired and trained for a skilled position in the metal department although his application does not reflect any experience or skill in handling metal. However, on the total state of this record, noting particularly that Henderson had not previously worked in the metal department and admit- tedly knew nothing about said department, I am unper- suaded that Respondent's electing to hire Lovett over Hen- derson. without more, compels the conclusion that Respondent was discriminatorily motivated within the meaning of Section 8(a)(3) and (4) of the Act. Rather, I find the absence of any evidence tending to show that Respon- dent threatened, interrogated, coerced, or otherwise in- dependently interfered with or restrained employees within the meaning of Section 8(a)(1) more revealing as factors militating against a finding of unlawful motivation in the circumstances of this case." On the second day of the hearing after Henderson had been questioned and cross-examined, the General Counsel amended paragraph 10 of the amended complaint to allege that Respondent, by "refusing] to permit [Henderson] to file an application on August 8 and November 21, 1978," violated Section 8(aX3) and (4) of the Act. The General Counsel had previously specified only June 6 as the date Respondent allegedly refused to reemploy Henderson. The record reveals that employment applications are ac- tive for only 30 days, and if the applicant wants to pursue employment opportunities thereafter, said applicant must apply again in person. Henderson's application of June 6 discloses that she applied for a job as a machine operator in the metal department, a skilled position. Personnel Director Sanders, as noted above, asserted that in his view Hender- son was not qualified for a skilled job in the metal depart- ment, and when unskilled jobs were available, her applica- tions was no longer current. Dorothy Taylor, who was hired as an unskilled employee in the metal department on June 6, had applied several days earlier. In addition to Taylor and Lovett (referred to previously), there is no evidence tending to show that the other six individuals who were hired in the predominantly skilled metal department during the 30-day period within which Henderson's application was still active were unskilled applicants. Thus the General Counsel has not demonstrated by a preponderance of the credible evidence that Henderson suffered disparately.' Henderson testified that she was not permitted to file ap- plications on August 8 and November 21. According to I In Henderson's affidavit of June 2 she stated, "I was never questioned or threatened by any supervisors, that I recall, about the Union . .. I am not aware that any other employees have ever been questioned or threatened about the Union." (Rsp. Exh. ) As set forth previously, the General Coun- sel, by letter dated July 20 denying the appeal of the dismissal of the charges involving Henderson's discharge, noted, inter alia, "the absence of any pro- bative evidence of an] independent Section 8(aX I) violation of any kind on the part of the Employer"(Emphasis Supplied.) t2 The General Counsel also pointed out that Ruth Tarver, less senior than Henderson, was reemployed. The record discloses that Tarver was the only one of seven employees terminated on May 3 and 4 who was reemployed by Respondent. Moreover, it is noted that Tarver reapplied on August 22, at a time when Henderson did not have an active application, and was hired in an unskilled position on September 6. 705 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sanders, if Henderson was refused applications on those occasions, the Company was not accepting applications from anyone. The record tends to support Sanders. Thus the record discloses that on those days when the Company is not hiring, it conspicuously posts a notice that applica- tions will not be accepted until further notice (Resp. Exh. 4). That sign is flipped over and another notice appears on those occasions when the Company is accpting applications and engaged in hiring. Henderson conceded that the sign not accepting applications was up on November 21. Ac- cording to Henderson, she did not see the sign until it was pointed out to her by the receptionist, who told her that the Company would accept applications when it posted the ap- propriate sign. With regard to Henderson's assertion that Respondent refused to let her apply on August 8, 1 am not convinced that she appeared at the Company's premises on that occasion. According to Henderson, she was told by the receptionist that the company was not accepting applica- tions that day." It is noted, for example, that in Henderson's affidavit of September 19, in the only affidavit given by her after June (Resp. Exh. 3), there is no reference to her seeking employ- ment at Respondent's plant in August. Further, she did not pinpoint August 8 until her second day of testimony and only after the complaint was further amended and she was again questioned on the date by General Counsel on redi- rect. Still further, I reject her uncorroborated assertion that she was discriminatorily denied an application on August 8, because, on the basis of the totality of her testimony and her demeanor, I found her not to be a reliable witness." While Henderson may have appeared at Respondent's plant in August and may have also been refused another application, I am not convinced by a preponderance of the credible evidence that it was done discriminatorily or at a time when applications were accepted from other appli- cants. In sum, noting particularly an absence of any evidence tending to show that Respondent has otherwise violated the Act, I find that the General Counsel has failed to establish by a preponderance of the credible evidence that Respon- dent refused to reemploy Letha Henderson for reasons vio- lative of Section 8(aX3) and (4) of the Act." i Counsel for the General Counsel in her brief, relying in part on a re- jected exhibit (G.C. Exh. 17), asserts that Respondent accepted an applica- tion from Burbon Redd on August 8. The exhibit represented General Coun- sel's computations from documents supplied by Respondent under a subpoena duces tecur As Respondent would not stipulate to the accuracy of the document and as the predicate records were not in evidence and as no further foundation was demonstrated in support of the accuracy, I refused to receive the document in evidence. In any event, as I do not credit Hender- son's testimony that she appeared at the Company's premises on August 8, 1 do not deem the exhibit material. 14 For example, in connection with Henderson's June 2 affidavit (Resp. Exh. I, p. 3) she was asked several times whether she told the Board agent that she had never passed out union literature or wore any buttons or badges and responded variously with "No." "Yes, I suppose so," "I really don't understand your question," and finally "No" again. Henderson conceded that the Board agent told her to read the statement "carefully." In this regard it is noted that in addition to Henderson's signature on the last page, her initials appear no fewer than four times on the four-page affidavit. In these circumstances, I find that Henderson's evasiveness and vacillation strongly militate against accepting her testimony as worthy of belief. 1 I1 find, however, that Respondent's resjudicata argument that the dispo- sition of the charges in Case 26-CA-7216 is dispositive of the instant charges involving Henderson is without merit. The charges previously disposed of related principally to Henderson's alleged unlawful discharge, whereas the 2. James Sanders The record discloses that sometime in or around June 1978 Sanders asked Vice President Moran foir a raise. Mor- an then looked into Sanders' work record and spoke with supervisors Vinson and Woodward. On or about June 26 Moran told Sanders that he thought that he was capable of becoming leadman ovei' the molders in the mill department, and the promotion included a 40-cent-an-hour wage in- crease. Sanders conceded that Moran told him that his change to leadman status would involve a probationary pe- riod. According to Sanders, Moran also told him that this opportunity had nothing to do with the Union. Sanders testified that he first became involved with the Union in April or May 1978, at which time he signed a union card. His union activity thereafter included attending union meetings, encouraging other employees to sign union cards, and handbilling. In July several union supporters, including Sanders wore union T-shirts at work.'" On July 28 Moran wrote a letter to all employees, stating therein, inter alia, that "noticed that a couple of employees wore their clown T-shirts to work today."" Also on July 28, in the afternoon, Personnel Director William Sanders had Curly Vinson summon James Sanders to the office. The latter Sanders' testimony as to what the personnel director told him is essentially undisputed and is as follows: [He said he wanted to tell me that he wasn't going to be able to use me as a leadman anymore because I didn't have any people to be leadman over. I asked him could he get me some people to be leadman over since he is the personnel manager [sic]. He stated that he couldn't because the work was less, and he just couldn't get the people. That was about it. The record tends to support the director's assessment that a leadman over the molders in that department was no longer needed. First, Sanders, the alleged discriminatee, conceded that the work in the department was slow. While the record discloses that there were two molding machines, only one of them would be used at any given time, and that machine would be operated by Sanders. In this regard, the record discloses that it was only on an intermittent or spo- radic basis that he was assisted by other employees. The record also reveals that after Sanders was demoted and he instant charges relate to Respondent's alleged unlawful refusal to recall and reemploy her. 1' While Moran could not recall the precise day, he conceded that on one occasion he observed Sanders weanng a union T-shirt. Sanders' and Harry Dunnigan's testimony that they both wore the union T-shirts for the first time on July 28, the same day that Sanders was demoted, is rejected. On the basis of demeanor and the consistency and plausibility of their testimony, I find both of them to be unreliable as witnesses. Significantly, it is noted that Dunnigan stated in his affidavit to the Board agent that they wore the union T-shirts for the first time on July 21. With regard to Sanders. it is noted that his poor recollection in some key areas tend to reflect adversely on his credi- bility. Thus he was asked whether the personnel director told him why his supervisor was not satisfied with his work and responded, "I don't remember him telling me why. I asked him, but I don't remember his answer." 71 I find the characterization of employees who supported the Union as "clowns" not to be violative of Sec. 8(aXI) for reasons discussed more fully infra. I Sanders stated in an affidavit given to the Board agent, "I never had any people regularly under me. just temporarily. They would send other people from other departments." 706 CARROM DIVISION, AFFILIATED HOSPITAL PRODUCTS had reverted to his former position, no one took Sanders' place as leadman. The personnel director also told Sanders in the presence of his supervisor, Curly Vinson,'9 that Vinson was of the view that he (Sanders) was of no help to him as leadman with regard to the flow of production. In carefully weighing the factors for and against Respon- dent discriminatorily demoting Sanders, I find that the fac- tors militating against a violation predominate. In this re- gard I note particularly that Sanders was admittedly a leadman on "probation" and that the record is devoid of any probative evidence tending to show that Respondent otherwise violated the Act.20 In sum, I find that the General Counsel has failed to establish by a preponderance of the credible evidence that Respondent, by demoting Sanders to his former position with the concomitant loss of pay, violated Section 8(a)(3) and (I) of the Act. Accordingly, I shall dismiss this allega- tion. 3. The July 28 letter The General Counsel contends that by spending a letter on July 28 to employees whereby Respondent referred to union-supporting employees who wore union T-shirts at work as "clowns," it coerced said employees and subjected them to ridicule within the meaning of Section 8(a)(I) of the Act. It is undisputed that Respondent disseminated the July 28 letter to its employees in furtherance of its campaign to defeat the Union's organizational drive. However, counsel for Respondent argues that "i]f an employer is not permit- ted this small amount of sarcastic latitude in describing union advocates, the employer's right of free speech is seri- ously hampered." The Board has long recognized that elections are vigor- ously contested and that emotions frequently run high and has therefore noted that "derogatory statements about the other party" and "name calling, though not condoned, will not be grounds for setting aside elections."" It is noted that the Union for its part referred to Moran on a number of 9I Respondent did not advance any reason for not calling Vinson as a witness. It is noted, however, that Vinson was no longer employed by Re- spondent at the time of the hearing. 20 Thus, the record reveals that a number of other employees wore union T-shirts or buttons at work, and there is no allegation or evidence tending to show that any of these employees, including witness Dunnigan, were ever threatened or otherwise discriminated against. Brinkley Walker, one of these individuals, was subseqently promoted to section supervisor. "1 See Hollywood Ceramics Conpany. Inc., 140 NLRB 221. 224, fn. 6 (1962). occasions in its literature both before and after the disputed July 28 letter in highly unflattering terms. Thus in an earlier campaign flyer the Union wrote as follows: Moran wants to continue to make his bank account larger with the money you earn through your hard work and sent the rest of the millions off to St. Louis to the rest of the Far Cats. [Emphasis as in the original.] [Resp. Exh. 6(b).] On July 24, in another election compaign flyer, the Union asserted, inter alia, that Moran's days of "lying" and "cheating" will be over after the election (Resp. Exh. 6(a)). In still a later campaign flyer the Union compared Moran with Hitler (Resp. Exh. 6(c)). Under all the circumstances, noting that the parties were engaged in a hotly contested election campaign and (more significantly) that Respondent's July 28 letter is free of any threats, I do not find its reference there to employees wear- ing union T-shirts as "clowns" coercive or otherwise unlaw- ful. 2? Accordingly, I shall dismiss this allegation. CONCI.USIONS OF LAW I. Respondent, Carrom Division, Affiliated Hospital Products, Inc., is an employer within the meaning of Sec- tion 2(6) and (7) of the Act. 2. United Furniture Workers of America, Local 282, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has not proved by a preponder- ance of the credible evidence that Respondent has violated Section 8(a)(4), (3), and (1) of the Act. Upon the foregoing findings of fact and conclusions of law and upon the entire record in these proceedings, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER'3 The amended consolidated complaint is hereby dismissed in its entirety. "See, e.g.. Serv-U-Stores, Inc., 225 NLRB 37, fn. 7 (1967), wherein the Board did not find unlawful "Respondent's disparagement of the employees and the union representatives as 'trash'." I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 707