Vitronic, Inc.

VITRONIC, INCORPORATED 1067 Vitronic, Incorporated and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO (United Rubber Workers ), Local Union No. 825 Vitronic, Incorporated and E.C. Fagan and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO (United Rubber Workers), Local Union No. 825 . Cases 14-CA-5137 and 14-RD-312 June 25, 1970 DECISION, ORDER , AND DIRECTION OF SECOND ELECTION By MEMBERS FANNING, BROWN, AND JENKINS On February 17, 1970, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled con- solidated proceeding, finding that Respondent had engaged in and was engaging in one of the unfair labor practices alleged in the complaint and recom- mending the dismissal of the complaint in its en- tirety on the ground that the unlawful conduct was too minimal to warrant a remedial order. The Trial Examiner also recommended that the decertifica- tion election of May 12, 1969, be set aside and that the Regional Director hold a new election at an ap- propriate time.' Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed cross- 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-ex- ceptions, and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as herein modified. The Trial Examiner found, and we agree, that Respondent's vice president and plant manager, Lester K. Wright, violated Section 8(a)(1) of the Act 4 days before the election by his threat to iso- late employee Norma Jean Boyles, a leading protagonist of the Union, because of her critical comments about her foreman's antiunion leaflet. However, in view of our finding below that Respon- dent engaged in further unlawful conduct, we do not adopt the Trial Examiner's finding that Respond- ent's threat to Boyles was too "isolated" or "minimal" to justify a remedial order therefor. The Trial Examiner found that certain changes in working conditions proposed by Respondent on June 4 and 5 and the "minimal actions in that direction thereafter" were not in violation of Sec- tion 8(a)(I) of the Act. We disagree. The Union, which was certified by the Board in 1967 as bargaining agent of Respondent's em- ployees at its Doniphan, Missouri, plant, negotiated in August of that year a collective-bargaining con- tract that expired on June 1, 1969.2 On March 12, employee E. C. Fagan filed a decertification peti- tion with the Board On March 19 and 26, respec- tively, Respondent and the Union sent each other letters terminating the contract. Following a Stipu- lation Upon Consent Election, an election was, as noted above, held on May 12, with 153 votes for, and 146 against, the Union.' Respondent filed time- ly objections on May 16, and the Regional Director on June 20 issued a report in which he recom- mended a hearing on one objection. Thereafter, the Board ordered the consolidation of both cases herein. On June 4, a few days after the expiration of the collective-bargaining agreement, Wright called Union officials to a meeting at which he proposed the following departures from prevailing practice under the expired contract. (I) a change in Respondent's garnishment policy;' (2) two changes in procedure for employee bidding on certain clas- sifications and types of jobs; and (3) recognition of Respondent's right to transfer employees at its dis- cretion from job to job or between shifts without regard to seniority in the event of trouble with su- pervisors or other employees. The union officials stated that they would refrain from expressing an opinion until consultation with the business agent. On June-5„ Respondent Plant Superintendent Gene Swigert sent the Union the following letter. Referring to the proposals that were discussed during our metting held on Wednesday, June 4, 1969. We explained our proposals real thoroughly and you had few questions or voiced very little or no objections. We see no reason for not putting these into effect, and they are being put into effect immediately. ' In the absence of exception thereto, we adopt this recommendation pro forma 2 Unless otherwise indicated, all dates below refer to 1969 ' There was also one challenged ballot which did not affect the results of the election ' The record contains no explication thereof 183 NLRB No. 103 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If you do wish to discuss this further with me, let me know. On the same day, the Union's president, Stanley Hudson, sent a letter to Respondent The committee has reviewed the proposals you suggested during our meeting held on Wed- nesday, June 4, 1969 It is our unanimous decision that your sug- gested proposals should be reviewed and negotiated upon during the time of our pend- ing collective bargaining negotiations. You are requested to begin negotiations for a new collective bargaining agreement im- mediately. The Union Committee stands ready to begin negotiations at a time, place and date mutually agreeable to you. On June 9, the Union filed the following grievance with Respondent: Union protest company's action of making uni- lateral changes in the terms of the employees wages, benefits and working conditions in violation of the collective bargaining agree- ment. Union request the company comply with the terms of the current collective bargaining agreement until such time as the parties negotiate a new collective bargaining agree- ment replacing the current one. Thereafter, Respondent took the following ac- tions without giving the Union any formal notifica- tion thereof. Employee Ruth Aggans was downgraded without her consent from a B classification to a C classifica- tions on the ground that she did not get along with her supervisor.'" Some junior employees were transferred from the second shift to the day shift without regard to seniority. It is clear that the Union, which was certified as the representative of the unit employees and was a party to the expired contract, did not lose its representative status during the pendency of the objections to the election. Although it is not con- tended, and we do not find, that Respondent had a duty to bargain with the Union about a new con- tract while there was an unresolved question con- Exhibit A of the expired contract provides that the hourly rate range for the former is $1 60 to $1 80 as compared with $ 1 60 to $1 70 for the latter Wright testified that Aggans remained with the same supervisor The Trial Examiner found that Respondent offered no economic jusifica- Uon for the unilateral changes ' See Thrift Drug Company of Pennsylvania, 167 NLRB 426, Northwest Engineering Company, 148 NLRB 1136, 1 145 cerning representation, we do find that Respondent remained under an obligation to make no unilateral changes in working conditions, in the absence of overriding economic considerations,7 until a deter- mination as to whether or not the employees desired to have the Union continue as their bar- gaining representative." We therefore conclude that Respondent's unilateral changes in the employees' terms and conditions of employment were in derogation of the Union's representative status and hence a violation of Section 8(a)(I) of the Act. Ac- cordingly, we shall order Respondent to take the remedial action indicated below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Vitronic, Incorporated, Doniphan, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to isolate employees because of critical comments about Respondent's campaign leaflets. (b) Unilaterally moving employees to less desira- ble classifications or shifts. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act: (a) Offer employees, who were transferred to less desirable classifications or shifts, their former classifications or shifts, or, if they are no longer available, substantially equivalent classifications or shifts (b) Make said employees whole for any losses sustained as a consequence of the unilateral changes. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Doniphan, Missouri, co- pies of the attached notice marked "Appendix."9 " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " VITRONIC, INCORPORATED Copies of said notice, on forms provided by the Re- gional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to in- sure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith IT IS FURTHER ORDERED that (1) the complaint be and it hereby is, dismissed insofar as it alleges violations not specifically found herein, and (2) the election conducted on May 12, 1969, in Case 14-RD-312, be, and it hereby is, set aside, and said case is hereby remanded to the Regional Director for Region 14 to conduct a new election when he determines that a free and untrammeled election can be held. [Direction of Second Election"' ommitted from publication. I "' In order to assure that all eligible voters may have the opportunity to b, informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may he used to communicate with them Excehmr Un- drraear in( , 156 NLRB 1236, N L R B v Wyman-Cordon Co , 194 U S 759 Accordingly, it is hereby directed that an election eligibility list, con- taming the names and addresses of all the eligible voters, must he filed by the Employer with the Regional Director for Region 14 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall he granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall he grounds for setting aside the election whenever proper objections are filed APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board found that we, Vitronic, Incorporated, violated the National Labor Relations Act, as amended, in cer- tain respects. The Board has therefore ordered us to post this notice. We therefore assure you that. WE WILL NOT threaten to isolate employees because they criticize the Company's leaflets WE WILL NOT, while the Union is still the representative of the employees, unilaterally move employees to less desirable classifica- 1069 tions or shifts, unless there are very important economic reasons why the Company cannot wait until after the employees decide in the second election whether they wish to have the Union continue as their representative WE WILL make said employees whole for any losses sustained as a consequence of the unilateral changes WE WILL offer the employees who were transferred to less desirable classifications or shifts their former classifications or shifts or, if they are no longer available, substantially equivalent classifications or shifts WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act, as amended VITRONIC, INCORPORATED (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1040 Boatmen's Bank Building, 314 North Broadway, St Louis, Missouri 63102, Telephone 314-622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F FREY, Trial Examiner: This case was tried before me on various days between September 25 and October 10, 1969, at Poplar Bluff, Missouri, with all parties represented and participating therein by counsel, except E. C. Fagan, who ap- peared pro se The issues in Case 14-CA-5137 are whether the Respondent, Vitronic, Incorporated, coerced employees by observing their union activi- ties, threatening them with transfers, refusing them wage raises, and unilaterally changing their wage rates, hours of work, and other terms and condi- tions of employment, because of their support of the above-named Union and other concerted activi- ty, in violation of Section 8(a)( I) of the National Labor Relations Act, as amended 29 U S C Sec. 151, et seq. (herein called the Act), and discharged 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and refused to reinstate one employee , and for- mally reprimanded another , because of their union and other concerted activity, in violation of Section 8(a)(3) and ( 1) of the Act. These issues arise on a complaint issued July 29 , 1969, in Case 14-CA-5137 by the Board 's Regional Director for Region 14, ' and answer of Respondent admitting jurisdiction but denying the commission of any un- fair labor practices. The issue in Case 14-RD-312, as stated in a Board Order of August 15, 1969, and consolidated with the unfair labor practice case for trial by order of the Regional Director dated August 19, 1969, is whether certain union representatives and em- ployees violated preelection instructi9qns of the Board agent conducting the election in this case, thereby improperly affecting the results of the elec- tion.2 At the close of the trial in the consolidated cases, I reserved decision on Respondent 's motion to dismiss the complaint in Case 14-CA-5137, that motion is disposed of by the findings and conclu- sions in this Decision . At close of the testimony, all parties waived oral argument , but have filed written briefs in Case 14-CA-5137, and Respondent and the Union have filed separate briefs in Case 14-RD-312 , all of which have been carefully con- sidered in preparation of this Decision.' Upon the entire record in the case and from my observation of all witnesses and their demeanor on the stand , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND STATUS OF THE UNION Respondent is a Missouri corporation with its of- fice and place of business in St. Louis, Missouri, and plants at various places in Missouri and Califor- nia, including one at Doniphan, Missouri, where it is engaged in the manufacture, sale, and distribu- tion of plastic specialty items and related products. In its operations during the calendar year 1968, Respondent has had direct inflow of goods and materials to its Doniphan plant, and direct outflow from thaj plant, in each instance of a value exceed- ing $50,000. Respondent admits, and I find, that it has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ' The complaint issued after Board investigation of charges filed by the Union on June 10 and July 25, 1969 This issue arose on timely objections of Respondent to conduct affect- ing the results of the election , which were investigated by the Regional Director who filed his report thereon on June 20, 1969 The Board issued its order of August 15, 1969, framing the issue and directing a hearing after consideration of the Employer's objections, the Regional Director 's report, and the Employer's exceptions thereto ' After the hearing closed, Respondent filed a motion on notice to cor- rect the transcript of the record in certain respects , and General Counsel filed a cross- motion to make the same correction , except in one respect Having considered the motions, I grant that of General Counsel, as well as that of Respondent except its motion to delete the word "not" from 124, p The above-named Union is a labor organization within the meaning of Section 2(5) of the Act. Ii. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Events The Union was certified by the Board in 1967 as bargaining agent of employees of the Doniphan plant in an appropriate unit. Respondent and the Union thereafter negotiated and executed in Au- gust 1967 a collective-bargaining contract covering said unit, which expired June 1, 1969. On March 12, 1969, employee E C. Fagan filed a petition with the Board in Case 14-RD-312 seeking an election on the claim that the Union no longer represented a majority of employees in said unit. On March 19, Respondent sent the Union a letter terminating the contract, and on March 26 the Union sent a similar letter to Respondent. On April 7 the parties entered into a stipulation for certifica- tion upon consent election in the RD case, and on May 12, 1969, an election was conducted at Doniphan, Missouri, by John F. Nicholson, a field examiner from the Regional Office for Region 14, at which 153 votes were cast for the Union and 146 against it . Respondent filed timely objections to conduct affecting the results of the election. After investigation thereof, the Regional Director on June 20, 1969, filed his report with the Board, overruling one objection but recommending a hear- ing on another. After consideration of exceptions to the report by the Respondent, the Board on August 15, 1969, issued its order directing a formal hearing on certain issues noted above. B. The Alleged Coercion and Discrimination 1. Alleged surveillance by Respondent On an unidentified date early in March 1969, while a group of employees were in the lunchroom during their morning break, Orville McManus, for- merly personnel director of the Doniphan plant but now acting as plant cost accountant, came to the lunchroom with one Pauline Steele, and stood in the lunchroom doorway while Steele and another employee, Helen Pigg, circulated a petition for decertification of the Union among employees for their signature. After the two employees finished circulating it, McManus walked away.4 As this in- 440, and to make an insertion in 15, p 368 , in the latter place, I correct the record by inserting "confused" in place of "stricken" In all other respects, the record is deemed corrected as proposed in said motions The Union has stated no opposition to either motion These facts are found from credited testimony of Dorothy Brooks and Ruth Eubanks McManus ' flat denial of the incident is not credited, because he had no specific recollection of the incident, and admitted that in course of his work he may well have been in or gone through the lunchroom very often during break periods or at other times Neither Steele nor Pigg, nor another employee , Petmiller , who was placed in the room at this time by Brooks and Eubanks, were called by Respondent to testify VITRONIC, INCORPORATED 1071 cident occurred on the second day of circulation of documents for signature preparatory to the filing of the RD petition by Fagan on March 12, and testimony of Brooks and Eubanks also shows that Steele had walked through the sealing department with McManus on the way to the lunchroom, with the petition openly held in her hand, General Coun- sel argues that Respondent, through McManus, knew what it was and deliberately observed its cir- culation, and was thereby in a position to know which employees signed it and which did not, and that this was illegal surveillance of employees in the protected activity of acting for or against an effort to decertify the Union. Respondent argues that (I ) McManus' conduct was not in fact surveillance, and (2) McManus had been only a cost accountant, and not personnel director, since January 1, 1969, when he was replaced in the latter position by one James Johnston, so that Respondent was not bound by his actions when he observed the above em- ployee activity. On the issue of agency I find no merit in Respon- dent's disclaimer of responsibility for several reasons. As early as August 1967, Respondent had formally notified the Union under contract require- ments that McManus was personnel director, and admittedly it never advised the Union before or after January 1, 1969, of his change of status, or that James Johnston had succeeded him in that position. Hence, although Union President Hudson admitted he had not seen McManus interviewing new employees for some months and had seen Johnston handling some of the personnel duties during 1969, the lack of formal notification of the change, plus testimony of employees and McManus that he still circulates through the plant in his new duties as cost accountant, and talks often to super- visors about production and its quality, and his ad- mission that he still uses the same desk in the office that he used as personnel manager and still reports directly to Wright as before, leads me to conclude that there has not been such a public and definite change in his status made apparent to the Union and its members as to put them on notice that he no longer handled personnel duties as a member of management; rather, the record shows such lack of apparent change as to warrant employees in believ- ing that he was still a member of management or at least still spoke for management.5 As McManus had been walking with Steele while she held the petition, and saw her and another em- ployee circulating two papers, it is a fair inference and I find therefrom that he knew what the papers were. However there is no proof that he said anything to Steele, Pigg, or any workers in the lunchroom about it at the time or later, or that Respondent took any action later with respect to any workers who may or may not have signed these petitions or any other papers of like nature circu- lated at other times in the plant. Although Eubanks testified she had never before noticed McManus watching employee actions in the lunchroom, which indicates his observance of the paper circula- tion was a unique event, the record also shows that since the first of 1969 McManus has circulated al- most daily in the plant in course of his cost ac- counting work, observing production, making time- and-motion studies of operations, and often checking quality of production. In addition, he su- pervises the operation of vending machines in the lunchroom, often entering and leaving that room to check their operation. Hence, it is a fair inference that employees were accustomed to seeing him ob- serving their work and operations at anytime anywhere in the plant and this tends to make his appearance in the lunchroom doorway for a few minutes while papers were circulated therein far less than a unique and unusual incident likely to exert a coercive influence on employees who saw him. In light of Respondent's dealings with the Union as bargaining agent for the past 3 years in performance of the contract which had not yet ex- pired, without any proof of union animus in that period and lacking proof that Respondent used Mc- Manus' observation of employees on this one occa- sion for any illegal purpose, I conclude that all the pertinent proof on this issue is insufficient to show that McManus on this single occasion engaged in actual surveillance of employees' protected activity of the type which was coercive and in violation of the Act.'' I therefore grant Respondent's motion to dismiss paragraph 5, A, of the complaint alleging actual surveillance and will recommend dismissal of the complaint to that extent. 2. The threat to isolate Norma Jean Boyles In the week of May 5, 1969, just before the elec- tion, there was much employee discussion in the plant pro and con the Union. Much of it took place in the packing department, where Norma Jean Boyles was prominent in talking for the Union; in arguing for it, she continually criticized her foreman, Richard Desich, and his alleged mistreat- ment of her; she also criticized Wright and the plant operation. On the morning of May 8, Desich distributed an antiunion leaflet to packing depart- ment employees. After reading it, Boyles began to comment and laugh about it openly to other work- ers around her and within hearing of employees in lines directly in front of and behind her. Among other things she said openly she would have a "big cry" about the leaflet, would need a bucket for her tears, and would have to use another worker's shirt- tail to dry her tears. She continued talking in this vein all morning and after lunch period. Ethel T. Dalton, an elderly woman who worked in the line directly in front of Boyles, had been hearing Boyles' Paul Stevens, Receiver of Carolina Scenic Stages, 109 NLRB 86, 102 The complaint does not allege, nor doe,. General Counsel argue, that Respondent here engaged in conduct giving the impression of surveillance of employees 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criticisms and comments continually during that week. About 2 p.m. on the 8th, Dalton became very nervous and physically ill, and told table ladies Bonnie Mac Holland and Dora 1. Miller she could not work, so Holland took her to the restroom, she told Holland that Boyles' constant talking, with criticism of the foreman and Wright and complaints about the plant operation, had made her nervous so that she developed a headache and could not work. While taking Dalton to the restroom, Holland and Miller met Wright and Desich, and Holland re- ported Dalton became ill because of remarks Boyles had been making. Desich then told Wright something would have to be done about Boyles' talking which upset the workers, as two of whom had complained to him about it that morning.' Both officials then went to Boyles at her bench, where Wright told her he had reports from different em- ployees about her remarks which were upsetting employees, mentioning Dalton . Boyles replied that she had been "whistling , singing and gabbing, and giving you a day's work." When Wright questioned her about her remarks, she related what she had said about Desich's letter as noted above, and said that Desich knew why she made these remarks Wright said he did not care what she talked about, but that he wanted her to keep her remarks to her- self and not disturb other workers in the depart- ment. She continued to argue with him about what she had said, and he replied that if she did not keep her remarks to herself and stop annoying other girls, he would have to put her off in a corner by herself where she could not bother the other em- ployees. She commented that he had tried that be- fore and was not satisfied He repeated that she would be moved off by herself if she did not stop upsetting the other girls. Boyles continued to argue and explain her remarks to other workers, and Wright said he did not want to hear any more about it, that she should just keep quiet and do her work and let other employees do theirs. When Dalton returned from the restroom about 2:30 p.m , Hol- land assigned her to work for the remainder of the day at a booth further removed from Boyles." General Counsel contends that Wright's threat of isolation of Boyles if she did not quit upsetting other employees with her chatter was not made until after he and Desich learned of her unfavorable remarks about Desich's antiunion letter, so that the threat was a coercive retaliation for her prounion and antiemployer remarks, all protected activity, and thus violated Section 8(a)( I) of the Act. This claim is supported by certain circumstances ' Shortly after Desich distributed his leaflet that morning , employee Clemme Clanton had reported that he should listen to the "terrible things" Boyles had been saying about him and others Desich said Clanton should not let Boyles ' remarks bother her "l'he above facts are found from a composite of credited and mutually corroborative testimony of Boyles, Miller, Holland, Clanton, Dalton, Wright, and Desich " I find from testimony of Wright, admissions of Boyles herself, and my observation of her voluble and argumentative answers on the stand, that Boyles was probably a very talkative, long-winded person who without Testimony of Clanton, Desich, and Wright makes it clear that before Wright made the threat, he knew of Boyles' criticism of the Desich letter, and both officials knew she was an active and outspoken ad- herent of the Union. The record also shows that Boyles' unusual and perhaps irritating talkativeness had continued all week long,' but apparently had not affected Dalton or any other employee adverse- ly until the day she began to comment about Desich's letter, although Dalton admits Boyles was no louder or more noticeable in her talk that day than earlier in the week. Thus, Dalton's story as to her adverse physical reaction to Boyles' remarks is suspect, in part because it is subjective testimony of the type not readily subject to probing by cross-ex- amination, in part because of the lack of supporting testimony of any outward evidence of the detriment to her, and in part because she does not try to ex- plain why these comments about the Desich letter produced this effect on her while Boyles' alleged tirades of the prior 3 days against company officials had not. In addition, it is strange that Dalton did not herself first try to suggest that Boyles cut down her comments, on the plea that Dalton was becom- ing ill, or that the two table ladies did not try to get Boyles' cooperation in this respect before reporting the incident to Wright. Hence, it is quite significant that Boyles' antiemployer remarks appeared to af- fect Dalton adversely and became the basis for Wright's instant warning of isolation only after Boyles had commented openly and adversely on the Desich letter, and Wright learned of it by question- ing her. Respondent claims that. Boyles was given only an oral warning of transfer to an isolated work spot if she continued rude and unpleasant talk which upset other employees, but was not actually moved; there was no mention during this warning of her union af- filiation or activity; the warning was given only after receipt of complaints from two table ladies and one employee about her conduct, and this discipline was comparatively mild in face of Boyles' admission that Respondent had once before ac- tually isolated her in her work for the same reasons; which circumstances show that the warning had only a normal economic motive of maintaining plant discipline and production However, there are various weaknesses in this contention: While there is no doubt Boyles was a chatterbox, the evidence falls short of a cogent showing that Boyles acted rude and unpleasant toward other employees, par- ticularly Dalton, none of the witnesses for Respon- dent, not even Dalton, said that Boyles was rude doubt subjected all employees around her workplace to long-winded, sar- castic , and blunt tirades against management, and Wright and De,ach in particular, every day during the week of May 5, and that she was probably hard to stop once she started talking In addition , her explanation in testimony of "mistreatment" by Desich when he had previously transferred her from a special packing job and gave it to Dalton, when Boyles asked for higher pay for it, clearly indicates that she harbored some special resent- ment toward Desich, which came out strongly in her remarks during that week VITRONIC, INCORPORATED and unpleasant specifically to them; at most, the record shows that her continued talk was general griping, not directed to or against specific workers, and in its worst aspect it consisted of blunt and sar- castic criticism of Desich, Wright, and plant opera- tions which went on for several days without ap- parent effect on any workers around her, many of whom took part in the discussions, until her re- marks of the fourth day, which were mainly general sarcastic comments about Desich's letter, but not about him, and apparently affected no one else but Dalton. It is well known that griping about super- visors and working conditions is a normal activity of employees which is usually passed off by other employees and condoned by the employer unless it tends to disrupt production and plant discipline. It is significant that Desich, the main target of Boyles' remarks, himself recognized this fact of industrial life when he told Clanton not to let Boyles' remarks about him bother her, when she first reported them to him Thus I cannot find from all pertinent evidence that Boyles' remarks on any of the 4 days went beyond the broad category of legitimate free speech which is protected for both employees and employer by Section 8(c) of the Act. Further, there is no substantial proof that production or morale in the packing department was affected by Boyles' continual chatter over 4 days (aside from the short interruption of Dalton's work while she recuperated in the restroom), even though it appears from Hol- land's testimony that employees in that department were "keyed up" all that week during the talk for and against the Union Considering all pertinent proof pro and con, I conclude that Respondent has not sustained the burden of adducing proof adequate to rebut the facts and circumstances indicating that the warning of isolation of Boyles was motivated by her legiti- mate comments about Desich's antiunion letter, and that General Counsel has sustained the ulti- mate burden of proof to show such motivation I find and conclude that by Wright's threat of isola- tion of Boyles for such conduct, Respondent vio- lated Section 8(a)(I) of the Act. 3. Denial of wage raise to Ayers Benny Ann Ayers began to work for Respondent in October 1968, at $1.60 an hour in the packing department. Late in November she received an au- tomatic raise to $1.62-1/2 an hour in accordance with contract provisions. About May 10, 1969, she felt she was entitled to another 2-1/2-cent raise under the contract, and asked her supervisor about it. He promised to look into it, but never talked to her about it later, so about June 1 she asked Jean Moore, an office employee who handled payroll ac- counts in the office and handed out paychecks, to find out why Ayers did not get the raise Moore ex- amined the payroll records and then told Ayers she was getting the pay rate which the contract required After some argument about the time 1073 when Ayers should have received the last raise, and with Ayers insisting she was due for another, Moore told her that "anyway, we cannot give it to you now, the NLRB might think it was a bribe," and that the Company could do nothing then, that "our hands are tied, we cannot give you any raise until this is cleared up." Ayers reported this to the Union, which filed a grievance on June 9, alleging a refusal to give Ayers a "25-week raise" in her clas- sification, in violation of the contract. In discus- sions between the parties under the grievance procedure, Respondent apparently satisfied the Union that Ayers had received her last raise earlier than required by the contract because she had had prior experience in working with the Company for several years up to 1963, and the Union apparently agreed that she was not then entitled to another raise and did not process the grievance further.10 General Counsel claims that (1) Respondent was responsible for Moore's explanation why Respon- dent could not give the raise at that time, because Moore was the company employee who usually talked to employees about payroll matters and cleared up questions about their pay accounts when necessary, and in this respect was identified with management in the eyes of the employees which thus made her an apparent agent of Respondent, and (2) Moore's remarks indicated Respondent was denying her a raise to which she might or might not have been entitled, not for lawful economic or con- tract reasons, but because of the pendency of the RD proceeding and imminence of the election therein, in violation of the Act. Respondent argues in defense that (1) it is not responsible for Moore's remarks because she was only an office personnel clerk, without supervisory status, actual or ap- parent, who had voted in an office unit election in- volving this Union, and (2) even if it is responsible for her remarks, they were not coercive. It is apparent that Moore talked continually with employees about their payroll accounts, and also handled their personnel records to an extent which would lead a foreman like Desich to ask her about the procedure for handling a written notice of reprimand, and she answered such questions herself without referring employees or foremen to a com- pany official. I do not think this conduct alone quite enough to lead employees reasonably to be- lieve that she spoke for management on a responsi- ble basis. However, when she gave Ayers, during their argument about a wage raise, an explanation in which she cited the contract to show that Ayers was getting the proper rate and not entitled to more at that time, and used the editorial "we" in explain- ing that Respondent could not give Ayers a raise for legal reasons during pendency of the RD case, and did not refer Ayers to Wright or any other offi- cial for that explanation, which clearly stated a company policy apparently based on legal advice, "' i he se fact% are found from credited testimony of Ayers, admissions of Hudson, and documentary evidence 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she was making statements which clearly indicated she was speaking for management on a policy matter with legal implications, and on this basis plus her general dealings with employees on per- sonnel matters, Respondent must be held responsi- ble-for her conduct, as though she were in a super- visory capacity. See McKinnon Services, Inc., 174 NLRB 1141, and cases cited in Decision of Trial Examiner. I find from Moore's explanation to Ayers about her present rate, based on contract terms, Hudson's admissions, and the failure of the Union to process the grievance for Ayers, that she was not entitled to a raise under the contract at the time she talked to Moore. Hence, it is a fair inference that, absent the pending decertification proceeding, Moore's ex- planation, Respondent's refusal of the raise for the same reason, and the Union's acceptance of the decision, would still have taken place. This made unnecessary Moore's final remarks to Ayers which told her in effect that, whether or not she was right about a raise, Respondent considered itself under a general legal disability to do anything about her request while the RD case was pending. In these circumstances I am satisfied that Moore was trying to end the argument for the time being by making a gratuitous statement of the limitations placed on the Company by the legal aspects of the situation. This was far from a statement indicating that Respondent was deliberately refusing a raise to which an employee was otherwise entitled, as a retaliation for the exercise by employees of their protected rights to avail themselves of Board process. Hence the cases cited by General Counsel and the Union which find a violation of the Act on such facts are not apposite," because unlike the situations in those cases, Moore's remarks were not prompted by the presence, action, or inaction of the Union, but only by the existence of well-known - legal limitations upon employer action during the pendency of an election. The cases cited by General Counsel reiterate the long-established prin- ciple that employer action in changing wages, hours, or working conditions while an election proceeding is pending, in a manner at variance with usual practice and under circumstances indicating that such action would not have been taken but for the presence or actions of a union, violate the Act. But Dorn's Transportation Co., supra, also recog- nizes that there may be situations where an em- ployer does not violate the Act when he acts from an honest belief that he is legally prohibited from granting a benefit because of a pending election petition. However, where he grants or withholds benefits in the critical period before an election, he has the burden of establishing that he acted thus for economic or other legitimate reasons wholly unre- " In Dorn', Transportation Company, Inc , 168 NLRB 457, McCormicI Longmeadow Stone Co, 158 NLRB 1237, and The Great A & P Tea Com- pany, Inc , 166 NLRB 27, the employers made it clear in writing to em- ployees that, but for an organizing campaign or election instituted by the union , they would be getting raises as in past years lated to the pending election proceeding . Marshall Durbin & Company of Jasper, Inc., 179 NLRB 1027. 1 think Respondent has satisfied this burden in Moore's initial remarks to Ayers and Respon- dent's later explanation to the Union , both based on terms of a contract which had expired, and in such circumstances I conclude that Moore 's final remarks to Ayers were more indicative of a desire to obey the law by remaining neutral during pen- dency of the question concerning representation, hereafter called QCR , than of a threat to act or not act because of the Union , and hence were not in fact, or reasonably calculated to be, coercive." I therefore grant Respondent 's motion to dismiss paragraph 5, C, of the complaint , and will recom- mend that the complaint be dismissed to that ex- tent. 4. Unilateral changes of wages and working conditions As noted above, the latest union contract expired June 1, 1969, and both parties had previously ad- vised each other of their desire to terminate it as of that date On June 4 Wright called three local union officials into a meeting, at which he proposed several changes in working conditions: (1) a change in company policy on garnishment of employee wages; (2) two changes in procedure for employee bidding on certain classifications and types of jobs; and (3) recognition of the Employer's right to transfer employees at its discretion from job to job or between shifts where employees were having trouble with their supervisors or other employees, and without regard to seniority. All of these proposals involved changes of working conditions and procedures established in the expired contract. The union officials said they wanted to discuss the proposals with the union business agent before giv- ing an answer, so they made no comments on them nor offered any counterproposals at that time. In the same meeting Wright discussed with the offi- cials the temporary working status of a college stu- dent working in the plant for the summer; he brought up reports of alleged tampering with stock records and asked the Union to advise workers to stop it or the Company would take strong action against them; he also brought up the problem of ob- scene writings on walls in the restroom. Steward Dilbeck asked if the Company would agree to a checkoff of dues, and Wright argued that the Union should collect its own dues from workers. At this meeting Wright also told the union officers that em- ployee Violet Redus would be discharged at the end of that day. '® Ct Paradise Bowlo- Mat, Inc , 180 NLRB 699, and cases cited in fn 2, Sahara-Tahoe Corporation , 173 NLRB 1349 VITRONIC, INCORPORATED On June 5, Respondent through Plant Superin- tendent Swigert wrote the Union that it had ex- plained its proposals on June 4 "real thoroughly, and you had few questions or voiced very little or no objections," and that "We see no reason for not putting these into effect, and they are being put into effect immediately If you do wish to discuss this further with me, let me know." The same day the union president wrote Wright that the union committee had reviewed his proposals and decided they should be reviewed and negotiated during the "pending collective bargaining negotiations," and requested that Respondent begin negotiations im- mediately On June 9 the Union filed with Respon- dent a formal grievance protesting the company ac- tion of "making unilateral changes in . . wages, benefits and working conditions in violation of the collective bargaining agreement," and requesting that the Company comply with that agreement until the parties negotiated a new one. Up to the time of the hearing herein, that grievance was still pending. Respondent has since changed one employee's classification without her consent on the ground that she had trouble with her former supervisor, transferred some junior employees from second to day shift, without regard to seniority, and also transferred one worker to a junior classification in the same type of work because she was too slow in a sewing operation, compared to other workers. Respondent has never given the Union any formal notification of these changes, or discussed them with union officials, nor has the Union filed grievances thereon. General Counsel admits that while a OCR was pending involving employees in the unit set forth in the old contract, Respondent was not under any duty to bargain with the Union about the proposed changes, but only alleges a violation of Section 8(a)(1) per se in the mere proposal of and threat to effectuate these changes while a OCR was pending; there is no argument that the proposal and alleged threat were deliberately designed to destroy any status the Union then held among the employees or to in- fluence employees to vote against it in any later election. Respondent's defense is that while a OCR is pending, it has no duty to bargain with the Union, hence nondiscriminatory unilateral changes of working conditions do not violate the Act. In sup- port of this defense and in explanation of its an- nouncements of June 4 and later actions, Wright testified that he acted on advice of counsel which was to the effect that, at that stage of the represen- tation proceeding, Respondent must discuss before- hand with the Union any changes it proposed in working conditions, and that after discussion "back and forth several times quite thoroughly, if agree- ment could not be reached, the company could make the change," and that while the OCR was " N L R B v Little Rock Downtowner, Inc , 414 F 2d 1084 (fn 6) (C A 8, August 19, 1969 ), N L R B v J H Rutter-Rex Mfg Co , 415 F 2d 1 133 (CA 6, Sept 19, 1969) 1075 pending, Respondent could deal with the Union only to the extent it showed that any employees with grievances wanted the Union to represent them on those matters. In view of the admissions of General Counsel, and the absence of any charge of violation of Sec- tion 8(a)(5) of the Act, I do not view Wright's ex- planation of his actions quoted above as an admis- sion of any duty to bargain during the pendency of the OCR but merely as his own interpretation of legal advice he received regarding the limited duty of Respondent to deal with the Union Hence, since General Counsel charges only a violation of Section 8(a)( I) in the mere proposal of the changes, and its continuance in the absence of any later announce- ment to the Union or employees of rescission or abandonment of the changes, the narrow issue is whether mere announcement of the proposal and failure to withdraw it publicly, without more, is per se a violation of the Act. In support of this position, General Counsel cites only one case which involved similar circumstances, Tampa Crown Distributors, Inc., 121 NLRB 1622, where the Board held that an employer violated Section 8(a)(5) (and by derivation Section 8(a)(1)) of the Act when it granted employees wage raises, after a union won an election but while objections to it were pending, above and beyond what it had originally contem- plated before advent of the Union; the Board found in the later circumstance evidence that the grant was in disregard of the employer's clear duty to bargain, without considering whether the pendency of the OCR affected that duty. Since there is no proof of circumstances showing an intent to coerce employees presently or in anticipation of a future election, and General Counsel does not claim viola- tion of a duty to bargain here with the OCR pend- ing, that decision cannot control. General Counsel cites no other authorities to support his claim of coercion per se. It seems clearly settled that if Respondent had no duty to bargain with the Union with the OCR pending, then unilateral wage raises or other changes of working conditions would not violate Section 8(a)(5).'3 On the issue of coercion of employees the Board has recently held that the grant of benefits while a OCR is pending will vio- late Section 8(a)(1) if it appears that the em- ployer's action was altered from its normal business course by the presence of the union and pendency of the OCR, that the Board will examine all the facts and circumstances of the questioned conduct in deciding this issue, and that the employer has the burden of showing that its action was taken for economic reasons wholly unrelated to the pending OCR. 'I Here, while Respondent offers no economic justification for its announcement of unilateral changes except advice of counsel, it is noteworthy that the few, scattered changes it made contra the terms of the expired contract appeared to be the " Dorn's Transportation Company, Inc , supra , Marshall Durbin & Co of Jasper, Inc , aupra , New Fern Restorrum Co, 180 NLRB 618 427-258 O-LT - 74 - 69 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD type normally expected in efficient business opera- tion, they were not widespread changes affecting many employees in the unit, and Respondent never did carry out changes coextensive with its an- nouncement. The latter inaction is not specifically explained by Respondent, but as this lack of imple- mentation occurred after the Union filed a formal grievance protesting the whole proposal, it is a far, stronger inference that Respondent did nothing further on advice of counsel due to this circum- stance and the pending OCR, than that it deliberately made the announcement and then left it hanging in the air, without formal rescission, as an implied warning to employees to discourage continued adherence to the Union, particularly where Union was continually alert to file grievances about employer conduct affecting employees, as found elsewhere in this Decision, so that it must have known Respondent was not going forward with any widespread changes of working conditions as announced. On the issue of motive, I must also give weight to the lack of any history of union animus by Respondent, the fact that it continued to deal with the Union to a limited extent even pend- ing the QCR, and the independent filing of the RD petition by an employee (without evidence or charge that Respondent aided or encouraged this action), followed by an election in which the Union won by only 7 votes out of a total of 299 cast, all of which impel the conclusion that Respondent acted solely from economic or legal, not antiunion, mo- tives." Viewing all the circumstances pertinent on this issue, I must conclude and find that Respondent's actions of June 4 and 5 relating to proposed changes of working conditions, and minimal actions in that direction thereafter, were not of a type reasonably calculated to coerce employees in the present or future exercise of any of their rights guaranteed by Section 7 of the Act, and that General Counsel has not sustained the ultimate bur- den of proof that such conduct was coercive per se or in fact. I therefore grant Respondent's motion to dismiss paragraph 5, D, and later paragraphs of complaint dealing with this conduct, and will recommend dismissal of the complaint to that ex- tent. 5 The discipline of Redus and Griffin and discharge of Redus Violet Redus was hired in 1964. At her discharge in June 1969, she was assembling products prior to packing. Darlene Griffin was hired about 1959 and at the time she testified was putting designs on "These circumstances , as well as the relatively minor nature of the sin- gle unfair labor pracLce of Respondent found above, take this case out of the ambit of the decision in Ambox, Incorporated, 146 NLRB 1520, and later decisions based on findings of patterns of antiunion conduct with in- tent to deny employees their rights under the Act Cf N L R B v Gallaro Bros , et al , 419 F 2d 97 ( C A 2, decided December 8, 1969) products in the silk screen department. In doing their work, both employees daily saw and handled shop order sheets containing the names and mailing addresses of customers. At a union meeting late in April 1969, Union Agent Robert Long told the employees to copy down the customers' names and addresses from shop orders on their own time and give them to him, so that the Union could carry on a boycott against Respondent by writing to its customers, in order to force Respondent to bargain with the Union Redus and Griffin thereafter copied out some of this data and were observed doing it by other employees who reported it to Foremen Desich and Baker. Both gave the data later to Long privately. The foremen reported these actions to Wright, and on May 22, Wright summoned Redus to a con- ference in his office where, in the presence of Production Superintendent Gene Swigert, Desich, Shop Steward Monty Dilbeck, and Department Steward Wanda L. Jones, he told Redus she had been observed copying customers' names and ad- dresses from shop cards, and putting the data in her purse. He asked if she did it and she denied it several times, explaining that at times she writes let- ters to friends on lunch period. He replied he was "glad to hear it," and sent her back to work. After this meeting, Redus continued to copy down data from the shop cards for the Union. On May 27, Wright summoned Griffin and Redus to another conference attended by the same people as on May 22, with the addition of Stanley Hudson, president of the local union, and another employee. He called in Redus first, and asked if she had copied customers' names and addresses from shop cards. She denied it. When he showed her a card- board with such data written on it, and told her she had been seen writing it down, she then said she "may have " He asked why several times, and she replied "for personal reasons" and for use with her "make-ups,""' in the absence of her table lady, Wilma Holland. During this questioning Dilbeck asked Wright why he was so "riled up" about this, and Wright replied, " Because this is company infor- mation, it is not for anyone to write down." Both union officials argued that workers could easily re- member it and write it down later from memory, and that the same data was also on packages shipped from the plant. Wright asked Redus why she needed the ZIP code, also the name of Ford Company from one order rather than the jobber, who ordered the items, and she gave varying an- swers, including that she took "what she thought she needed." Dilbeck and Hudson stopped further " "Make-ups" are the reprinting and repacking with an original order of some items which may have been ruined in the original printing, so that the silk screen operator will need the item number of the whole job, when reprinting items to fill it out for shipping The address of the customer is not necessary for this work VITRONIC, INCORPORATED questioning by telling Redus she had answered enough questions and suggesting that if Wright was going to punish Redus, he should do it, and not give her "this 3rd degree," that the Union would file a grievance on it. Wright then told her in presence of all that "you are not to take any names and ad- dresses of customers outside the factory and give them to anyone," and then told her and Jones to return to work. Wright asked the union officials if they knew of anyone else taking down this data, and Hudson replied that many might be doing it, mentioning Darlene Griffin. Wright showed them a paper with names and addresses on it, saying Griffin had writ- ten it. Hudson questioned this, so Wright called in Griffin and her supervisor, John Baker. He asked Griffin what the paper meant. Griffin said it was "just a paper" and that she wrote it. Wright said she had been observed by Baker copying names and ad- dresses from shop cards that morning. Griffin ar- gued Baker could not have seen it, because she wrote it down before worktime. When Wright asked why she did it, Griffin said she had been given harder jobs than others and wanted evidence to prove it. Wright and Desich indicated that for this purpose she would also need data from the main office in St. Louis, Missouri. Griffin replied that she took the data on her own time and what she did with it "is my own business." Wright told her "if it was company information, it is not your own business," that he did not want her to write down any more data like this that "does not pertain to your work," that she had worksheets to fill out which were kept on file in the office. He also said if she did it again, she would be disciplined. Dilbeck asked if Wright was "threatening" Griffin. Wright said he was not, only stating a fact, and he would post a notice that this information was not to be taken off shop cards, and those doing so would be punished, and send a copy to the Union. Wright asked if the union officials had any comment; Hud- son replied "it is a lot of hogwash," and Dilbeck said they would talk to Union Agent Long about it. Right after the meeting, Wright had a notice posted in the plant, saying "It has been reported that some employees are taking names and ad- dresses of our customers and distributors off of shop cards. Anyone taking such information is sub- ject to discipline." A copy of the notice, with a note from Wright, was given to Hudson the next morn- ing. After the May 27 meeting, Wright prepared a formal "disciplinary action notice" of a 3-day suspension of Redus, commencing at the end of work on the 28th and running through June 3, for the "major infraction" of taking jobbers' and customers' names, addresses, telephone numbers, and ZIP codes from job tickets, and explaining "it should have been understood from the meeting of May 22, 1969 . that information was not to be taken from job tickets." Foreman Desich gave a s 1077 copy to Redus on the 28th at quitting time. Earlier he gave another copy to Department Steward Jones, and when the latter asked whether it was to go to Redus through her, Desich said he was in doubt, but would ask Jean Moore, commenting that "we thought it over," that at first management was inclined to discharge Redus, and then to give her a 3-week suspension, but finally decided on the 3-day suspension "because I think she was put up to this." On May 27 or 28, Dilbeck asked Desich if Redus would be paid for Friday, May 30, a holiday in the 3-day suspension period. Desich asked Wright who said she would not, so Desich reported this to both Dilbeck and Jones. In talking with the latter, Desich also said that if this conduct occurred again, these employees would be subject to immediate discharge Jones professed ignorance of why Redus had taken the data, that she did not understand what was going on, because "everyone at that meeting [May 221 should have clearly understood that this was company information and should not be taken off." On May 29, the Union filed a grievance under the contract protesting the suspen- sion, which action was awaiting arbitration at time of the hearing. Redus returned to work on June 4. At quitting time that afternoon Foreman Desich told her Respondent would have to let her go, "because of what is going on," which she took to mean the copying down of data from shop cards. Earlier the same day Wright advised Hudson and Dilbeck of the discharge, and said it would be confirmed by letter, which was sent to the Union that day. On June 9, the Union filed a grievance on Redus' discharge. On June 9, Foreman John Baker gave Griffin a formal "verbal warning" for taking data off shop cards, "as discussed in May 27, 1969 meeting." The Union shortly filed a formal grievance about this action, which is still awaiting arbitration." At first blush, there appears to be no question of the clear right of Respondent to discipline Redus and Griffin for admitted, deliberate, but furtive stealing of company property in the form of detailed customer data copied from company records for the purpose of assisting the Union in its pending consumer boycott against Respondent, particularly where the admitted purpose of the boycott was to damage and curtail Respondent's business to the point where it would be compelled to lay off employees It is well settled that the civil and criminal courts of the States recognize and pro- tect the right of businessmen to compile data about their business operations and dealings with customers, to hold such data as valuable proprieta- ry business information, and to have it protected against revelation to competitors and others for "The above facts are found from a composite of credited and mutually corroborative testimony of Hudson, Red us, Griffin, Jones, Dalbeck, Desich, and Wright Testimony of any of said witnesses at variance therewith is not credited 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes hostile to its business operations." Hence, the record affords cogent proof of the legitimacy of Respondent's action which appears adequate to rebut various circumstances and arguments on which General Counsel relies to construct a prima facie case of discrimination. General Counsel does not question these princi- ples or the right of Respondent to discipline em- ployees for misappropriation of company property and the clear disloyalty involved in that conduct Rather, he recognizes the basic legitimacy of Respondent's action by attempts to justify the con- duct of the two employees through various argu- ments in pleas of confession and avoidance. Thus, he argues they had a clear right to take such infor- mation and use it against Respondent because they were not confidential employees, hence their con- duct was protected activity because they were act- ing in aid of the Union's boycott. However, neither he nor the Union cite any authority to show that non confidential, as distinguished from confidential, employees as such are free to filch valuable com- pany information and use it to harm or destroy their employer's business . The requirement of basic loyalty of employee to employer and the general law relating to relations between employer and em- ployee is to the contrary. The next argument is that the employees had the implicit right to take and give this data to the Union in the absence of any company rule prohibiting this conduct . This has no merit for several reasons. The record shows that the two employees, as well as the union officials present at the disciplinary con- ferences of May 22 and 27, recognized that there was something improper in their conduct, when the employees continually evaded any admission that they-had taken the data until confronted with their handwriting, and then proffered false and untenable reasons for so doing, and the union officials suc- cessfully browbeat Wright into curtailing any ex- tended probing of the reasons for their conduct designed to show they were false, or secure an ad- mission of the purported union purpose therefor. In addition, the Union knew the employer would resent the taking and actual use of the data when it told employees to take it secretly and on their own time. Finally, both employees admitted they knew it was wrong to take any company property, and one or both admitted they falsified their reasons for tak- ing the data to avoid discipline. At no point in the conferences did they or the union officials show that the taking was protected activity or otherwise justifiable. Their whole attitude while taking the company data and during the conferences with Wright shows that they knew the two employees were guilty of doing something wrong which Respondent would dislike and punish them for. '" On the general obligations of employees to employers in this regard, see 35 Am Jur , Master & Servant §§ 97, et sey General Counsel tries to overcome these implica- tions by arguing that Respondent had no specific rule or policy prohibiting the taking of customer data, and the lack thereof in the past is demon- strated by Respondent's hasty promulgation of such a rule on May 27, after Redus and Griffin admitted taking such data, hence such conduct was not in violation of company rules or policy and was also protected by the Act because in aid of a lawful union purpose. This argument is not impressive. While the record shows Respondent had not previ- ously issued any rule or regulation specifically prohibiting employees from appropriating customer data for the benefit of outsiders, the record shows clearly that employees had long had good reason to know that Respondent did not want any company property, including company information relating to its customers, copied by employees for release to outsiders. All employees, when hired, were given printed copies of company rules which, among other things, prohibited taking of company proper- ty. The Union got a copy of the rules when it negotiated the 1966 contract with Respondent. For some years past a notice had been posted in the plant specifically warning employees of discharge for violation of the rule. In addition, as early as February 1963, Wright had apprised employees of the importance of preventing release of company data to competitors, in a speech in which he ex- pressed Respondent's great concern about a re- ported attempt of competitors to bribe employees to release detailed data about company products and its dealings with its customers; he had emphasized that disclosure of such data would harm the business and jeopardize the jobs of em- ployees, hence Respondent wanted workers to cooperate to prevent such disclosures. While the speech did not in so many words promulgate a rule specifically to prohibit the release of data to out- siders by employees, this is understandable because Respondent's information at the time was only that outsiders had approached employees to try to buy the data from them, not that employees were trying to peddle the data to outsiders on their own initia- tive, hence there was no occasion for Wright to try to prohibit employee action, but only to appeal to their sense of loyalty and self-interest in their jobs to persuade them to resist bribe offers for company data.'`' However, the speech made it clear to em- ployees that Respondent desired to prevent disclo- sure of company information to outsiders who might use it to harm the business and their jobs. In light of this incident, the continued publication of the company rule against taking of company pro- perty both when hiring employees and in the plant, and the guilty attitude and actions of Redus and Griffin in the May conferences with Wright, I am " The fact that Respondent did not indicate that employees were active- ly trying to sell company information is probably the reason why employees who testified for General Counsel had no clear recollection of the speech, but it is significant that none of them denied that Wright made the speech VITRONIC, INCORPORATED satisfied and find that both knew they were doing something harmful to Respondent which violated its rules and policy, in their furtive taking of customer data for use of the Union . Hence, these circumstances weigh heavily against any inference that promulgation of the specific rule of May 27 denotes discrimination against them , but rather support Wright 's explanation that he issued it, after warning both employees that taking of customer data was forbidden , only as a clarification of the basic company rule about company property, when the need for such clarification became apparent for the first time from the reports about Redus' and Griffin's conduct .20 In these circumstances , ( 1) I do not consider that side remarks of company counsel during cross-examination of Redus amount to a sig- nificant admission by Respondent that its written rule was only intended by it, and understood by em- ployees, to apply only to physical property and not to company records or information, (2) nor can I conclude or find that the basic company rule had been abandoned with the advent of the Union, on the basis of testimony of Personnel Director Mc- Manus that after the Union came in, a copy of the printed rules and regulations was removed from the plant bulletin board and not reposted , since Wright testified credibly that it was removed only when a new board was installed and used for posting of items dealing with current activities, and the record shows that Respondent has continued to issue the printed rules and regulations to employees when hired , and (3 ) the failure of Wright to mention the basic printed rule in the May 22 and 27 con- ferences is at most a suspicious circumstance, but falls short of substantial proof that the printed rules no longer existed or at least did not apply to com- pany records or information , because admissions of both employees and union officials Hudson and Dil- beck show that they knew on and before May 22 that customer data was valuable company informa- tion and that Respondent would resent the taking and outside use of such data , and Redus deliberate- ly continued to filch the data after May 22 with the Union 's approval even after Wright had specifically warned her not to do it. In addition , I note that the complaint does not charge, nor does General Coun- sel argue, that the promulgation of the specific rule of May 27 was an unfair labor practice, either as coercive or discriminatory action against em- ployees, or as an alleged unlawful unilateral action like the changes of wages and working conditions on June 5, as considered elsewhere herein. General Counsel also claims the employees' ac- tions were protected activity because in aid of the O1 Although Wright admits he knew as early as April 25 that several em- ployee credit unions, which were actual or potential customers, would cease to buy from Respondent until it cleared up its "labor problems," and that the Union was thus mounting a consumer boycott against it, nothing in these letters or any other proof adduced by General Counsel indicates that Respondent knew or had reason to believe before May 22 that the boycott was being extended to other customers or distributors of Respondent, or that its employees were actively taking and feeding customer data to the Union to aid the boycott 1079 Union's consumer boycott which was admittedly in- stituted to compel Respondent to bargain with it even during and notwithstanding the pendency of a QCR. This argument is rather startling , because it is well settled that any employer who recognizes or deals with one union , as against a rival union, dur- ing the pendency of a QCR runs the grave risk of being found in violation of the Act, §' and plain logic indicates that the same risk exists where a QCR is pending on an RD petition. Hence, Respon- dent would still be violating the requirement of neutrality if it had acceded to the Union' s request of June 5 for bargaining on behalf of all employees in the unit before the Board had ruled on the pend- ing objections to the election. General Counsel brushes aside this limitation by arguing that, while Respondent was not chargeable with the duty to bargain with the Union while a QCR was pending, the Union's use of a boycott to compel Respondent to bargain with it in this period was still "not clearly unlawful" because the Union had a form of pre- sumptive legal status as the incumbent bargaining agent, based on its prior certification and receipt of a majority of the votes in the 1969 election, in which situation an 8(a )(2) charge against Respon- dent would be "unlikely" if it bargained with the Union while its objections to the election were pending. This, of course, is a speculative argument which ignores the rights of dissident employees, particularly E. C. Fagan, who filed the RD petition, as well as Respondent, to have all issues regarding the legality and purity of the election resolved be- fore Respondent recognized the Union; it is spe- cious to say that Fagan had no right to, or would not, file charges against Respondent alleging viola- tions of the Act if it had bargained with the Union notwithstanding the pending QCR, particularly where General Counsel has now seen fit to charge Respondent with an alleged breach of neutrality and violations of Section 8(a)(I) in the unilateral changes of wages and working conditions during pendency of the QCR Since General Counsel thus admits Respondent was not required to bargain with the Union while the QCR is pending and un- determined, it seems a logical consequence that the Union could not lawfully compel Respondent to do so, whether by a strike, boycott, or other form of economic warfare, Hence, that admitted purpose of the boycott appears to be unlawful, and it follows that actions of employees in aid of that purpose fall outside the protection of Section 7 of the Act and the employer may lawfully discharge them therefor. 2 11 N L R B v Exchange Parts Company, 375 U S 405, 409 (violation of Section 8(a)( I) found where benefits given before election), Ambox, In- corporated, 146 NLRB 1520 (violation of Section 8(a)(I) found where benefits given while objections to election pending ) See also international Ladies' Garment Workers' Union v N L R B , 366 U S 731, 739, 740 " Hoover Company v N,L R B, 191 F 2d 380, 386 (C A 6), denying en- forcement of Board Order in 90 NLRB 1614 on this point, N L R B v Local 1229, IBEW, 346 US 464, 477-479 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While admitting that economic pressure exerted by unions for unlawful goals, such as to compel an employer to commit clear violations of the Act or other laws, is not protected activity, General Coun- sel tries to sidestep the logic and weight of the above authorities by arguing that, notwithstanding the reversal by the court, the Trial Examiner must still follow the Board decision in Hoover Company, 90 NLRB 1614, to the extent that it held that a consumer boycott by a union to compel an em- ployer to bargain with it pending a QCR and before certification of a rival union by the Board did not lose its protection under the Act, on the theory that such recognition of one union did not "necessarily violate the Act," but only "might violate the Act," since many things might happen to remove the QCR and thus render such recognition lawful (such as withdrawal or dismissal of the petition creating the QCR, or even employer recognition of rival unions on a members-only basis).':' The Board so ruled after due consideration of the employer argu- ment (like that of Respondent here) that it could not have yielded to the boycott's pressure without violating the Act under the doctrine of Midwest Piping & Supply Co?' where the Board had held that execution of a contract with one of two com- peting unions, while a QCR was pending before the Board, violated Section 8(a)(1) of the Act, as a breach of the employer's "obligation of neutrality." But General Counsel ignores the important fact that the Board recognized in the Hoover case that its decision in Midwest Piping was based primarily upon its concern for the protection of its own processes in representation cases,25 and that its refusal in Hoover to find a clear illegality in the boycott purpose rested on the "reasonable possi- bility" of voluntary employer action removing the legal impediment of the pending QCR. Here, I am impelled to conclude that the circumstances of a closely fought election, with the outcome decided by only 7 votes out of 299 cast, in a proceeding in- stituted by an employee, not the employer, would make it so clear to Respondent that its employees were almost evenly divided about continued ad- herence to the Union, as to rule out any "reasona- ble possibility" that Respondent would voluntarily withdraw its objections to the election or take any other action to cause a dismissal of the QCR.26 Thus, the circumstances here differ enough in vital aspects from those in the Hoover case so as to prevent the Board's decision there from being con- trolling here. Thus, the outstanding purpose of the Union, Redus, and Griffin in implementing the boycott is that they were acting solely to compel Respondent effectively to forego its right to file and litigate the objections to the election under the Act and Board Rules, by bargaining fully with the Union as though no OCR were pending. This was a direct, coercive interference with the Board's elec- tion process and the right of employer and em- ployees to have the rectitude and purity of the elec- tion tested and decided in a proper and formal manner. Hence, I conclude that the decision of the Board in the Hoover case is not apposite or con- trolling here on the facts in the particular aspect of that decision relied on by General Counsel.27 General Counsel also argues that the employees' action in aid of the boycott was protected because they were not displaying disloyalty to Respondent by disparaging its products, as occurred in Jefferson Standard Broadcasting Company, 94 NLRB 1507, and their actions were peaceful. However, the Board and the courts have recognized that acts of physical sabotage against the employer's business and property as well as disloyalty involved in insub- ordination and disobedience of proper orders, although in course of otherwise protected con- certed activities, are not protected by the Act,2" and the Board recognized in Jefferson Standard Broadcasting that employee tactics tending to cast discredit on their employer without clearly tying their conduct to the ultimate purpose of trying to extract some concessions on their working condi- tions from their employer, "were hardly less in- defensible than acts of physical sabotage" (94 NLRB at 151 1). I consider that secret theft of vital and confidential company information for the deliberate but undisclosed purpose of injuring, if not destroying, Respondent's business in order to accomplish an unlawful purpose is clearly flagrant 2-' 90 NLRB at 1618, 1619 2' 63 NLRB 1060 21 90 NLRB at 1617, fn 5 " Another indication of Respondent 's desire for the election process and its disinclination to forego any step in that procedure available to it under the law lies in testimony of Wright and Hudson that, when the Union threatened at the consent election conference in the Board office in April 1969, to file unfair labor practice charges, Respondent' s agent suggested the Union do this at once, so that Respondent could promptly show the fal- sity of the charges and open the way for a prompt election 2r General Counsel has cited no Board decision, and my own research has not disclosed one, in which the Board has in so many words reaffirmed its ruling in Hoover and declined to follow the court's decision therein until reversed by the Supreme Court I also note that the Supreme Court in N L R B v Local No 1229, IBLW, 346 U S 464, 477, fn 12, quoted with approval with Board's remarks in the Hoover case that "An employee can- not work and strike at the same time He cannot continue in his employ- ment and openly or secretly refuse to do his work He cannot collect wages for his employment, and, at the same time , engage in activities to injure or destroy his employer's business ," hence , I must conclude that this pronouncement is still viable That case involved the discharge of em- ployees for public distribution of handbills during a strike which bluntly at- tacked the programs of the employer, a radio station, and although the Board had upheld the discharges largely because the handbills attacked the employer's products without tying the attack to the pending labor dispute, the Supreme Court noted that these actions of the distributors in support of their strike would still have been beyond the protection of the Act, even if it appeared that the strikers had puhlici7ed the distribution as part of con- certed activitiy This ruling, although perhaps judicial dicta, supports a finding that Respondent properly discharged Redus and Griffin here for the flagrant disloyalty inherent in their conduct " N L R B v Local 1229, el( , 346 U S 464, 474, 475, in effect affg Board Order in Jefferson Standard Broadcasting Company, 94 NLRB 15(17, upholding discharge for employees for written attacks on the employer's business and products VITRONIC, INCORPORATED 1081 and reprehensible disloyalty and tantamount to acts of physical sabotage under the above authorities and thus beyond the protection of the Act.29 On consideration of all the pertinent facts and ar- guments pro and con , I conclude that Respondent has adduced cogent proof which under the persua- sive authorities cited above tends to show that it properly discharged Redus and disciplined Griffin for secret theft of company property in the form of valuable company customer data for the purpose of assisting the Union in conducting a boycott against Respondent for an unlawful purpose, which is adequate to rebut facts, circumstances, and argu- ments relied on by General Counsel to show a prima facie case of discrimination against these em- ployees,30 and that General Counsel has not sustained the ultimate burden of proving by a pre- ponderance of substantial proof in the record as a whole that these employees were subjected to dis- crimination in violation of the Act I shall grant Respondent's motion to dismiss the complaint in- sofar as it charges such discrimination against them and will recommend dismissal of the complaint to that extent 31 iii. THE OBJECTIONS TO THE ELECTION IN CASE 14-RD-312 The consent election was scheduled for May 12, 1969, between 3:15 and 5 p.m., in the National Guard Armory, located on the northwest corner of Walnut and Spring Streets, in Doniphan, Missouri, and directly across Walnut Street from Respon- dent's plant. John F Nicholson, the Board field ex- aminer assigned to run the election, arrived at the site that morning and personally surveyed the area surrounding the armory including the adjacent streets leading to the entrance to the voting area. Between I and 2 p.m., he called a preelection con- ference of representatives of Respondent and the Union in the office of Plant Manager Wright which was on the Walnut Street side of the plant.t2 Nicholson outlined the voting hours, place, and procedure. Wright asked what areas would be off limits for electioneering Nicholson announced that he did not want anyone talking to voters who would line up to vote on the sidewalk on Spring Street on the south side of the armory:" so that there would be no electioneering on the entire south side of the armory including the south side of Spring Street, or the "other side of this street" along the east side of the armory. Wright asked if the latter instruction meant that workers should stay on the east side of Walnut Street. Nicholson asked if the street outside the plant office was Walnut, and Wright said it was, so Nicholson said he wanted no electioneering on the "other side of the street," indicating the west side of Walnut Street adjacent to the armory. None of the parties' representatives raised any further questions about these designations. I find the above facts from a composite of credited and mutually corroborative testimony of Nicholson , Wright , Murray, Bingham , and docu- mentary evidence, as corroborated in part by ad- mission of Stanley Hudson , C. W. Scott, Hawthorne , Rowe , Patrick , and Zanoni . I do not credit testimony of several of the latter group of six witnesses called by the Union which tends to show that Nicholson severely limited the off- limits area on Spring Street on objection by Patrick, for several reasons. Zanoni and Patrick testified, in ef- fect, that Patrick objected openly to the restriction of both "streets" on the ground that they were public thoroughfares used by the public for auto and pedestrian travel, and by children of workers who came to meet their parents when they left work, and that Nicholson recognized the merit of this objection by restricting only the "grassy area" between the south wall of the armory and the ad- jacent north sidewalk up to the curb line of Spring Street, and also generally restricted the area to that which he could "visibly see out there [from the vot- ing place]." However, their story is supported only partly by fragmentary testimony of union observer Pigg who said Nicholson revised the limitation to "south side of the armory building to the side of the [Spring] street," but it is significant that Pigg does not mention any "grassy area"; and he indicates that the revision arose on an objection by Wright, not Patrick. It is also notable that none of the other four union officials and observers present sup- ported the two organizers on this point. Although Zanoni testified that the announced broad scope of the off-limits area "disturbed" him, he contradicts himself and Patrick in part by admitting his final understanding of the revision was that "there could not be anybody in the street [meaning Spring Street] as such," which conforms with Nicholson's "' Banta Co , 145 NLRB 1141, Younguown Cartage Co , 146 NLRB 305, C'onihuuron Engineering, Inc , 177 NLRB 521 (refusal to hire employee Bird on another project) Another indication that Respondent 's sole motive for discipline of both employees lies in the fact that it at first suspended Redus and discharged her only after she continued to steal information and Respon- dent had collected written, as distinguished from verbal, evidence thereof on advice of counsel, whereas it did no more than reprimand Griffin, a union official, in the absence of evidence that she continued to filch infor- mation like Redus " In reaching this conclusion, I have also considered the fact that Respondent has violated the Act in one isolated incident of minor import, but any inferences of animus against . the Union which might be drawn therefrom are well counterbalanced by record facts showing Respondent's apparent amicable dealing with the Union under the expired contract, and the fact that it continued to recognize and deal with it for specific purposes even after the contract expired and while the OCR was pending 'R Respondent had Wright , Lenore B Wright, Eva J Murray , and Jean Moore at the meeting The Union was represented by local officials Stanley Hudson and James Scott, organizers J D Patrick and Joseph Zanom, and employees Franklin D Pigg , Marion A Hawthorne , and Era Dean Rowe Employees E C Fagan and William Bingham represented the petitioner in the RD case "The voting area was entered from the north side of Spring Street through a sunken doorway at the southwest corner of the armory , and the direct line of approach for most voters coming from the plant to the voting place was along the north side of Spring Street adjacent to the factory, crossing the intersection of Walnut and Spring Streets at the northeast and northwest corners, and then continuing west along the north side of Spring Street to the cement walkway leading to the armory door aforesaid 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD original restriction. Further, the testimony of both organizers that their objection was based on an un- warranted restriction of all of Spring Street (both sides and the street itself) against public traffic is apparently a pretext, for both wefe experienced in elections before the Board and must have known that "electioneering" referred basically to activities by employer and union and their representatives, not to pedestrians or members of the general public driving cars on the street or to children of workers coming along the street for family reasons. In addi- tion, Patrick's own version of the revision has Nicholson saying he did not want anyone talking to the workers lined up alongside the armory while waiting to vote, which purpose would be largely nullified if partisans of either side could electioneer freely from the street itself or on the curb side of the voting line, as contrasted to the grassy area between that line and the armory; and it would be almost completely nullified if Nicholson had limited the off-limits area only to what he could see from within the voting place, because credible testimony of union observer Hawthorne and company ob- server Murray and an engineering drawing of the armory, plant, and both streets in the record demonstrates that anyone inside the voting area, even near the doorway, would have a rather nar- row, pie-shape view of only about 20 feet of the north sidewalk west and east of the entrance to the voting place, so that if the union agents are to be credited, Nicholson was telling the parties that elec- tioneering was permitted anywhere along the voting line up to a point 20 feet from the walkway into the polling area, whether the solicitation came from the grassy area or the street side. I cannot believe that Nicholson in fact did, or would have, so restricted the off-limits area , for in so doing he would have violated the standing instructions of the General Counsel for guidance of Board agents conducting elections, which provide, in pertinent part (I) "no electioneering will be permitted at or about the polling place during the hours of voting" (Rule 11326) and (2) "there should be no organized elec- tioneering along the line of march between work- place and polls, whether the polling place be 20 feet or 5 blocks from the workplace" (Rule 11326.5).:14 I must assume that Nicholson, with at least 2 years of experience in running Board elec- tions, was familar with and followed these rules in outlining the no-electioneering area at the con- ference, and in fact his original delineation of the " While not mentioned by any of the parties in argument at the hearing or in briefs , these rules are considered by General Counsel as public infor- mation under the Public Information Act of 1966, PL 89-487, effective July 4, 1967 , amending Section 3 of the Administrative Procedure Act of 1946, 5 U S C Sec 1001, et %ey " The record shows that the voting hours were fixed to allow night-shift voters reporting for work at 4 p in to vote before they clocked in, and day- shift employees to do the same after they clocked out between 3 45 and 4 p in After clocking out, day-shift voters would walk along the north side of Spring Street adjacent to the factory , cross the intersection of Spring and Walnut Streets through the northeast and northwest corners , and then join the voting line alongside the armory on the north side of Spring Street area as found above amounts to a practical and reasonable application of the second rule quoted above, for it did not prevent electioneering among workers leaving the plant and walking along the line of march up to the street intersection, but only insulated voters while in that line alongside the ar- mory itself, as well as on their direct approach to it from the plant on the east, the plant parking lot north of the armory, and along Walnut Street from the south;35 the four corners of the intersection were reasonably within the off-limits area, as voters would take only seconds to cross the intersection and loin the voting line. Hence, I conclude that the union organizers either deliberately misconstrued or distorted the original outline of the prohibited area in an effort to broaden the scope and effec- tiveness of the last-minute electioneering they had in mind. This becomes apparent when considering their subsequent electioneering and two private discussions they had with Nicholson Although Zanoni admits in testimony that Nicholson's instructions were clear to him, he says he was "upset" and "tense" because he still needed "clarification" of them to find out whether the off- limits boundaries on Spring Street ended at the curbline or elsewhere, so that he would know where to place workers distributing handbills for the Union Despite his doubt, he did not seek further "clarification" at the preelection con- ference, but with Patrick approached Nicholson privately while the latter was getting election material from the trunk of his car parked on Spring Street,"' Zanoni told Nicholson the Union would have handbillers at the northeast, southeast, and southwest corners of the intersection, and asked if that was permissible. Nicholson looked at those corners, said they were off-limits and that he would have nothing to do with locations outside the boun- daries he had fixed, but that if the parties agreed to handbilling at those locations inside the boundaries, they could do so, that he could not be a party to it, and that without such an agreement those locations would be subject to objections. This discussion was not communicated in any way to Respondent or any of its representatives, nor did the Union ap- proach Respondent to try to get its agreement to electioneering at those locations. I find this discus- sion from credited testimony of Nicholson, as cor- roborated in part by admissions of Zanoni, Patrick, Hawthorne, and Pigg. I do not credit testimony of Zanoni and Patrick to the effect that Zanoni in- Night-shift workers who parked in the north parking lot would walk from it along the west side of Walnut Street, adjacent to the armory, to the northwest corner of the intersection , and turn right into Spring to join the voting line Workers who might park in other lots or streets south and west of the intersection would come east on Spring Street to the voting line, and north on Walnut to cross the intersection at the southwest or southeast cor- ners to enter the voting line ' No company official or representative of Petitioner Fagan was present at this discussion or notified by the Union about it beforehand Union ad- herents Stanley Hudson, Hawthorne, and Rowe were nearby and heard parts of the discussion VITRONIC, INCORPORATED 1083 dicated the Union wanted handbillers at all corners of the intersection except the northwest, and in front of a beauty shop on the north side of Spring Street about 100 feet west of the entrance to the voting place, and at the entrance to the plant park- ing lot on the west side of Walnut Street north of the armory, and that Nicholson indicated that he approved these locations, as long as the handbilling "was in an area where he could not physically see them and they did not interfere with people lined up to vote." A private, unilateral revision of the an- nounced prohibited areas to the limits of his vision from within the voting area appears incredible for the same reasons noted with respect to the claimed revisions during the preelection conference. After a meeting between 2 and 3 p.m. of the union organizers at the union hall with local union officers and members who volunteered to distribute handbills, the Union assigned at least 10 union members to handbill at all corners of the intersec- tion, except the northwest corner (southeast corner of the armory where the Board agent had posted no-electioneering signs), with 1 at the entrance to the plant parking lot on Walnut Street just north of the northeast corner of the armory, and 1 or 2 at a location on the north side of Spring Street some distance west of the entrance to the polling place :t' The handbilling at all locations began at 3 p.m. and continued until 4:15 p.m., except that the two sol- icitors on Spring Street west of the voting place, Linda Baucom and Sharon Nowak, stopped hand- billing at 3:50 p.m., as they were night-shift em- ployees and had to clock in by 4 p.m., no one took their places at that station. In this period Darlene Griffin, union shop steward for her department and a trustee of the Union, handbilled most of the time on the northeast corner which was directly in the line of march of the day shift on its way from the plant exit to the polling place; on one or two occa- sions she left that post to give handbills to the hand- biller located at the plant parking lot or to visit workers on other corners of the intersection to replenish her own supply of handbills. Stanley Hud- son, president of the Union, at various times re- lieved handbillers at the intersection stations when they went to vote, but most of the time he was at the northeast corner; his wife, Elsie, was the hand- biller at the parking lot. Katharine Scott, a member of the Union's executive board and wife of C. W. Scott, vice president of the Union, handbilled at times at the southeast and southwest corners. Throughout the handbilling the solicitors at these corners often interchanged locations. Since the day shift was the largest of the two work shifts, it is clear that Griffin, Hudson, and one or two other handbillers on the northeast corner actively con- tacted a majority of the eligible voters with hand- bills only seconds before they joined the voting line, which extended from the entrance to the voting place almost to the northwest corner of the inter- section for at least 45 minutes after the polls opened.:" Having failed to secure a secret, unilateral ex- emption from the original no-electioneering area by application to Nicholson on Spring Street, the union officials indicated they tried again during final inspection of the voting area by both parties with Nicholson in the 15 minutes before the polls opened. Zanoni and Patrick testified, in effect, with some corroboration from Hudson, that: While Nicholson was explaining the setup of observers' stations and the voting booth, and the voting procedure, to the parties in the voting area, both agents took Nicholson aside from the other persons present and again explained the location of their handbillers to him, and he approved the handbilling at the intersection by saying that if "they are out of my line of sight, they are all right," so long as they did not come up and interfere with workers in the voting line; Zanoni persuaded Nicholson to walk outside the armory so that he could point out the handbiller west of the armory on Spring Street, and Nicholson said that location was okay; at that time one or two handbillers were standing in front of the beauty shop about 100 feet west of the walkway leading into the voting place. During this discussion all other representatives of the parties except Hud- son were at least 15 to 20 feet away near the voting booths, so that they did not hear the discussion; there is no proof that any of the union officials told any representative of Respondent or Fagan of their alleged talk with Nicholson The Board agent flatly denied the whole discussion. I credit his denial for several reasons: (1) for the same reasons I dis- credited the union agents' version of their private talk with him at his car, (2) 1 consider it very un- likely that Nicholson would take time out from his last-minute duties supervising the voting setup and procedure and then running a one-man election, to step aside and give the Union a private reaffirma- tion of its handbilling arrangements which clearly varied from his original instructions, particularly with Wright and other representatives of Respon- dent in the same room, for this would be a flagrant demonstration of prounion partisanship on his part, which could never command Board approval; (3) the story of the union agents is palpably an attempt by testimonial fabrication to create an apparent second official approval of the handbilling locations found above, as further support for their first fabri- "The handbillers were Griffin, Stanley Hudson and his wife, Elsie, Katharine Scott, Linda Baucom ( Helms ), Lucille Neil, Jerry Nowak and Sharon, his wife, Ida Mae Richmond, and Eva Dean Rowe a This was due to the influx of the mass of day-shift voters after they clocked out and in part to an initial slowdown in the actual voting when ob- servers for the three parties were having difficulty in the mechanical checking of voters against the eligibility list, until the Board agent rear- ranged them for more efficient operation I find the above facts from a composite of credible testimony of witnesses called by both parties In view of my findings and conclusion hereafter that the admitted handbillings at all corners of the intersection except the northwest violated the elec- tioneering limits set by the Board agent, I find it unnecessary to resolve the conflict in testimony as to whether handbilling occurred also on the northwest corner 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation; this conclusion is strengthened by Zanoni's admission that he well knew and told Nicholson in the talk at the car that the Board agent had barred all of Spring Street alongside the armory to elec- tioneering, so that Zanoni found it necessary to try to have three corners of intersection of Spring and Walnut excepted from the ban, and then to "beg" Nicholson (as he put it) to leave the voting area to view and approve the handbilling locations a second time;19 (4) the credibility of the union agents is further diminished by their creation of a boycott deliberately designed to harm, if not destroy, Respondent's business for an unlawful pur- pose, and the fact that they thought nothing of a resort to the disreputable tactic of directing and causing employees secretly to steal valuable com- pany information in order to implement the boycott. After carefully assessing all pertinent facts bear- ing on the issue, I conclude and find that the Union deliberately violated the no-electioneering area an- nounced by the Board agent before the polls opened, even after it tried twice without success to get from him a secret and unilateral revision of the boundaries of that area, and that the unauthorized electioneering on the northeast corner of the Spring-Walnut intersection within that prohibited area by two known officials of the Union, as well as other union members, had a substantial impact upon a majority of the voters as they walked along the line of march between the plant and the voting place and just as they entered the voting line which was well calculated to impress and sway voters within a prohibited area at or near the polling place, and thus could well have affected the results of the election if it had swayed no more than four voters, and that , in this respect , the electioneering "Another indication that the Union at the outset recognised the propriety of Nicholson'% original no-electioneering boundaries as properly including the four corners of the Spring-Walnut intersection appears in Zanom 's admission that, while he and Patrick were discussing a worker grievance with Wright shortly after 3 p in , after the group inspection of the voting area, and were standing on Walnut Street a few feet from the northeast corner of the intersection , Zanoni was perturbed and wanted them to discuss it at a point further away from the inter section so that wor- kers coming to vote could not see the union officials , as he felt their presence there would he a violation by "definition of the Board" if the voters could see them , even though they were not electioneering It is sig- nificant that he knew that he and the Union were even then violating the prohibition when he talked to handhillers on the northeast corner to give them their final instructions ( although the record shows that they received full and detailed instructions about their duties at the union hall) "'Clausen Baking Company, 134 NLRB 111, 112, Mdchem, Inc , 170 NLRB 362, where the Board made it clear that voters in Board election% must be tree of distraction , last-minute electioneering , or pressure by any party while they are waiting to cast their ballots and that " the final minutes before an employee casts his votes should be his own, as free from inter- ference as possible, " so that he can consult his own conscience on voting without interruption These observations apply equally here, although there is conflicting proof about last-minute conversation by union representatives with voters in the voting line, becau se the Board agent at the outset properly delineated the area in which voters must he tree of such last-minute pre ssure , so that a clear and deliberate violation of that area, which amounts to violation of a Board rule imposed for purpose % of that election , is far more than a trifling violation I have considered other case s cited by the Union which would indicate that distances as far as 100 to 150 feet from the polls may not fall within the at that corner, as well as the other two corners of the intersection in the prohibited area, was of such a nature that it inhibited the exercise of a free cho- ice by voters and is therefore a basis for setting aside the results of the election.40 CONCLUSIONS OF LAW 1. In Case 14-CA-5137, Respondent has vio- lated Section 8(a)(1) of the Act by its threat to iso- late Norma Jean Boyles for legitimate comment about a foreman 's antiunion leaflet, but has not vio- lated the Act by any other conduct alleged in the complaint. 2. In Case 14-RD-312, officials and agents of the Union violated election rules and procedures established by the Board agent conducting the elec- tion therein in a manner and to an extent which in- terfered with the right of employees to make a free choice in the election , thus destroying the purity and laboratory atmosphere of the election. RECOMMENDED ORDER Although I have found that Respondent violated the Act by its single threat of isolation of one em- ployee for legitimate union activity, there is no proof that it implemented that threat in any way or extended it to other employees, so that neither that employee nor any others have been harmed thereby. In the absence of any substantial proof of other union animus by Respondent, I do not feel that a remedial order based on a minimal, isolated instance of such conduct is warranted . Hence, I will recommend that the complaint in Case 14-CA-5137 be dismissed in its entirety.41 definition of " at or near the polls" stated in Board rules However, those cases cannot control , as they did not involve definite no-electioneering area,, fixed by the Board agent, which thus became the ad hoc definition of that phrase for purposes of this election See also Star Expansion Industries Corporation, 170 NLRB 364, where an election was set aside because a union agent clearly violated the Board agent '% designation of a no-elec- tioneering area I find no merit in the claim that Nicholson's designation of the no-elec- tioneering area was improper, for the Board has held that the determina- tion of that area must he left to the informed judgment of the agent of the Regional Director conducting the election , as he is on the scene and familiar with the physical circumstances of the location of the polls. Murvd International Security Service, Inc , 173 NLRB 1260 Even if it were proper to second-guess the Board agent on this, the facts found above showing the exposed nature of the long line of march to the polls and the routes and cir- cumstances of actual movement of the voters to the polls amply demon- strate the reasonableness and propriety of Nicholson's delineation of the prohibited area in the first instance In light of the physical circumstances here , the ruling in Home Town Foods , Inc , 172 NLRB No 126, on far dif- ferent facts cannot be apposite or controlling In view of the above conclusions , I consider it unnecessary to make findings on conflicting testimony dealing with movements of union agents in car" on Walnut and Spring Streets during the voting, the effect of the congregation of union officials and adherents on Spring Street lust before the polls closed and when voting had practically ceased , or the effect of handbilling by union adherents near the beauty shop on Spring Street or at the parking lot exit on Walnut Street °1 Omni Spectra, Inc , 176 NLRB 165, Feldkamp Sheet Metal, Inc , 176 NLRB711 VITRONIC , INCORPORATED 1085 Having found in Case 14-RD-312 that the ORDER requisite purity and laboratory atmosphere of the election of May 12, 1969, has been destroyed by The complaint herein should be, and hereby is, conduct of the Union 's agents and adherents found dismissed in its entirety. above, I will recommend that the election be set aside, and a new election held by the Regional Director at an appropriate time.