Metro Pants Mfg. Co.

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metro Pants Mfg. Co. and Amalgamated Clothing Workers of America, AFL-CIO. Cases 5-CA- 4183, 5-CA-4393, and 5-RC-6363 August 27, 1970 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND MCCULLOCH On March 9, 1970, Trial Examiner Max Rosenberg issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and rec- ommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not interfered with the election held among certain employees of the Respondent, and recommended that the results be certified. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's 'Decision and sup- porting briefs, and the Respondent filed a brief in answer thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases 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 here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dis- missed in its entirety. IT IS FURTHER ORDERED that the objections in Case 5-RC-6363 be, and they hereby are, overruled in their entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes has not been cast for Amalgamated Clothing Workers of America, AFL-CIO, and that said labor organization is not the exclusive representative of the employees in the appropriate unit , within the meaning of Section 9(a) of the National Labor Relations Act, as amended. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner: With all parties repre- sented, this consolidated proceeding was tried before me in Harrisonburg, Virginia, on August 26, 27, 28, 29, and October 8, 1969, on an amended complaint of the General Counsel of the National Labor Relations Board and an answer filed thereto by Metro Pants Mfg. Co., herein called the Respondent.' Joined with the complaint are objections to an election conducted by the Board in Case 5-RC- 6363 among an appropriate unit of Repondent's employees on May 9, 1968, which were lodged by Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, and which the Regional Director for Region 5 consolidated for hearing with Cases 5-CA-4183 and 5-CA-4193. At issue is whether Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter, and whether the foregoing alleged acts of misconduct by Respondent which antedated the election, and which generally find their parallel in the Union's Objections to the aforemen- tioned election, so interfered with the employees' freedom of choice as to require a second vote. All parties were afforded full opportunity to present evidence, to examine and cross-examine witnesses, to argue orally at the close of the hearing, and to file briefs. Oral argument was waived by all parties. Briefs have been received from the General Counsel, the Respondent, and the Union, which have been duly considered.' Upon consideration of the entire record, including the briefs filed with me, and upon my observation of the demeanor of each witness while testifying, I hereby make the following: ' The consolidated complaint, which issued on August 13, 1969, is based upon charges filed and served on August 28, 1968, and May 8, 1969, respectively ' The General Counsel's unopposed motion to correct the transcript in minor respects is hereby granted In a posthearing motion, counsel for the Respondent moved the Trial Examiner for permission to alter page 133 of the record which contains the testimony of General Counsel 's witness Mildred Juanita Nixon While the General Counsel filed no opposition to the procedural request, counsel for the Union objected on the primary ground that such alteration would change the purport of Nixon's testimony In my opinion, the requested alteration would operate to better illuminate her confused testimony as it now appears in the record The motion is granted 185 NLRB No. 50 METRO PANTS MFG CO FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Respondent is, and at all times material herein, has been a partnership located in Harrisonburg and Bridgewater, Virginia, where it is engaged in the manufacture and sale of mens' and boys' pants During the annual period material to these proceedings, Respondent sold and shipped goods valued in excess of $50,000 from its Harrisonburg and Bridgewater plants directly to points located outside the Commonwealth of Virginia The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ii THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. til THE ALLEGED UNFAIR LABOR PRACTICES A The Contentions The complaint alleges that Respondent, by its supervisors and agents, violated Section 8(a)(1) of the Act by the following misconduct (a) On or about April 7, 1968,' Plant Manager Nat DeLeo interrogated employees at Respondent's Bridgewater, Virginia, plant, concerning their union activities, and threatened to discipline them if they supported the Union in its organizational campaign; (b) in April, Supervisor and Agent Bonnie Alger interrogated employees regarding their activities on behalf of the Union; (c) on or about April 18, Supervisor Arelia Sterling threat- ened to discharge employees and to terminate business operations at the Bridgewater plant in reprisal for their union proclivities, and on or about May 2, threatened the Bridgewater employees with loss of insurance benefits if they selected the Union as their bargaining agent, (d) in May, Supervisor Earnest Shifflett threatened employees at Bridgewater with loss of vacation benefits if they support- ed the Union and, on or about May 6, questioned employees at this installation concerning their union sympathies, (e) on or about May 2, Supervisor Ruth Nutter warned employ- ees at the Harrisonburg plant that they would suffer the loss of health and hospital insurance if they engaged in union activities and, in April, interrogated them regarding their efforts on behalf of the Union, (f) on or about May 2, Supervisors Dorothy Smallwood and Hattie Lilly threat- ened the Harrisonburg work complement with loss of exist- ing health and hospital benefits if it embraced the union's cause; (g) on or about April 18, President Milton Winograd threatened to discharge Bridgewater employees and close that facility in repnsal for their union activities and, in April, interrogated employees at this plant regarding the union sympathies and the collective desires of other employ- ' Unless otherwise indicated , all dates herein fall in 1968 493 ees; (h) on or about May 9, Plant Manager Cass Rutkiewicz promised employees at the Harrisonburg operation addition- al paid holidays if they voted against union representation and, in April, questioned employees about their union activi- ties and threatened them with reprisals for engaging in said activities; (i) on or about May 9, Respondent disseminat- ed literature threatening employees at both plants with the forfeiture of health and hospital insurance in an effort to dissuade them from selecting the Union as their represent- ative and, in April, paid and otherwise assisted employees in the dissemination of antiunion literature, and, (1) between May 27, 1969 and April 2, 1969, Attorneys Henry C. Clark, W Stephen Bradshaw, Lewis F Jolly, and William R. Smith, and Investigator L Wayne Harper, all agents of Repondent, interrogated employees at both plants con- cerning their union inclmations.4 For its part, the Respond- ent generally denies the commission of any labor practices banned by the Statute, and urges that the election results should stand. B Procedural Background On March 26, the Union filed a petition with the Board in Case 5-RC-6363 seeking an election among all production and maintenance employees, including shipping, receiving employees and truckdrivers employed at Respondent's plants in Harrisonburg and Bridgewater, Virginia. The election was conducted on May 9 The resultant tally of ballots showed that, of approximately 708 eligible voters, 315 cast ballots for and 361 voted against the Union Seventeen ballots were challenged, a number insufficient to affect the results of the election. Two ballots were void. Thereafter, on May 16, the Union filed Objections to Conduct of Election and to Conduct of Employer Affecting the Results of the Election. In his Report on Objections filed on August 8, the Regional Director found that certain of the Union's objections raised substantial and material issues of fact which could best be resolved by a hearing thereon ` On September 5, the Union filed exceptions to the Director's report with the Board and, on October 31, that tribunal expanded the area of inquiry in its Order Directing Hearing.' In the meantime, and on August 28, the Union filed unfair labor practice charges with the ' At the hearing, the General Counsel moved to dismiss par 6(h) of the complaint which alleged that "On or about May 1968, Supervisor Eunice Zuka, at the Harrisonburg plant, threatened employees with loss of employment in reprisal for their activities on behalf of the Union Without opposition, the Trial Examiner granted the motion ' The Director recommended that a hearing be held on Objection 3, dealing with the alleged acts of interrogation by Plant Manager Nat DeLeo and Supervisor Earnest Shifflett , and Shifflett's alleged threat of curtailment of, vacation benefits, Objections 4 and 10 relating to President Milton Winograd's speech of April 18 to Bridgewater employees, and remarks attributed to Areha Sterling , Earnest Shifflett, and Eunice Zuka, and, Objection 5, insofar as it concerns the alleged offer by Plant Manager Cass Rutkiewicz of an extended Memorial Day holiday for employees He further recommended that the remainder of the Union's objections be overruled in their entirety Inasmuch as I have, on the General Counsel's urging, dismissed the complaint wherein it alleges Zuka's conduct as violative of the Act, which conduct finds its parallel in Objections 4 and 10, 1 deem that aspect of the objections mooted and I shall make no findings with respect thereto 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board asserting that, since March 14, the Respondent had unlawfully refused to bargain with the Union in violation of Section 8(a)(5) of the Act, and the Respondent otherwise interfered with, restrained, and coerced employees in contra- vention of Section 8(a)(1) On December 6, the Director apprised the Union that he would not issue a complaint on the Section 8(a)(5) allegation because, in his judgment, it lacked merit Thereafter, the Union filed an appeal of the Director's action in this regard with the General Counsel in Washington, D.C. On December 27, the General Counsel advised that the appeal had been taken under advisement. On March 17, 1969, an agent of the Board informed Respondent that he had been directed to pursue a further investigation of the alleged violation of Section 8(a)(5). and that he intended to interview all employees who had signed authorization cards for the Union to ascertain the validity of said documents. The Union's refusal-to-bargain charge is still pending C The Alleged Misconduct 1. Plant Manager Nat DeLeo As indicated heretofore, the complaint alleges that, on or about April 7, DeLeo interrogated employees about their union activities and threatened to discipline them if they supported the Union. Employee Roy Simmons, who worked in the pressing department at the Harrisonburg plant, testified that, approximately 3 weeks before the elec- tion of May 9, he was summoned to DeLeo's office by Supervisors Earnest Shifflett, Tommy Clayton, and Charlie Wright. On direct examination by the General Counsel, Simmons stated that, upon arriving in DeLeo's office, the latter remarked, "We don't give you two chances and this is your last chance and we hear you've been threatening these people " Simmons protested that he had not threatened any workers with physical harm because of their union adherence. When questioned as to whether DeLeo made any mention of the Union in this conversation, Simmons replied, "I wouldn't want to say anything about that " On cross-examination, Simmons was shown a statement which he dictated at a union meeting on May 7. In this statement, he recited that "Approx 1 month ago while I was working Tommy Clayton and Earnest Shifflett told me that Nat Deleo wanted to see me in the office. When I went in Nat asked me how I was going to vote at the election. I told him I didn't know and he told me it was about time I was to make up my mind. He went on to criticize my work. He accused me of threatening him also. Something about beating him up on the street ' In its Order, the Board directed that the hearing also include matters raised in Objections 6, 8, 9 and 14, as well as the "supervisory or managerial status of Bonnie Alger" and "all incidents in which she was involved " After presentation of his evidence relating to Objection 14, counsel for the Union moved to dismiss this Objection for failure of proof and the motion was granted Counsel for the Union also moved to abandon certain averments in Objection 6, which motion was also granted, thus leaving viable only the averment that Respondent provided "paid time before plant closing for employee members of [an Hourly Employees'] committee to distribute on plant property, assisted by supervi- sors, antiunion leaflets," which is labeled Par 6(o) in the complaint He finished by saying, 'One more time and I'm going to take action."' In a marginal note, Simmons added that "Donnie Evans of the shipping department, Earnest Shifflett, Tommie Clayton, and Charlie Wright all supervisors were present [when] Nat DeLeo asked me how I was going to vote" However, when pressed by counsel about the truthfulness of this statement, Simmons confessed that DeLeo did not in fact ask how Simmons intended to vote in the election, that he, Simmons, did not respond that he had not yet made a voting choice; and, that DeLeo did not caution that it was time for Simmons to formulate an electoral judgment. Moreover, Simmons also admitted that he told an untruth when he stated that his supervisors were present when DeLeo asked him "how I was going to vote." Juanelle Simmons, no relation to Roy, testimonially recounted that, a few days prior to the election of May 9, President Milton Winograd delivered an address to all the employees at the Bridgewater plant in which "he was speaking about the benefits would be frozen if the union came in." At the conclusion of his talk, Juanelle engaged in a conversation with an employee seated behind her during which the employee inquired as to what Winograd meant by "freezing benefits." Juanelle proceeded to spell out her understanding of the phrase. The employee expressed dissatisfaction with her explanation, in consequence of which both sought out DeLeo and the matter was placed before him DeLeo thereupon escorted the two ladies to a bulletin board which contained leaflets pertaining to an independent plant in Russellville, Alabama, where a labor organization had attempted to organize the employees When questioned as to whether she recalled anything which DeLeo said concerning that plant, Juanelle replied, "Well, one particular thing he said, I don't remember exactly what the leaflet said, but, it was something about they had three days paid vacation before but afterwards they only got one or something like that. I'm not quite sure what the leaflet said." DeLeo asked Juanelle, "How much do you make" on certain production items and she responded, "I make a dollar forty-five a hundred " DeLeo commented, "well, if the company and the union would negotiate, you might get ninety-five cents." On cross-examination, Juanelle acknowledged that, in his speech, Winograd mentioned that all benefits would be frozen pending negotiations with the Union if it won the impending election. Juanelle also allowed as how DeLeo told her at the bulletin board that, in negotiations, Respond- ent "might obtain a rate of ninety-five cents" from the Union and not that, in negotiations, her rate would be lower. Finally, Shirley Smith testified that, prior to the election and on April 3, DeLeo called her into his office. Smith beckoned a friend, Wilma Eavers, to accompany her although Eavers had no apparent reason for auditing the ensuing conversation. When the discussion commenced, DeLeo "told me that it was my fault that he had to fire Billy Messerly [Smith's bundle boy] because I constantly talked to him about getting him to sign a union card and talking union on company time and he had to transfer him to another job and he didn't work out on that job so he had to let him go" Smith proclaimed that she METRO PANTS MFG CO 495 had not spoken with Messerly on company time "because I know better "' Upon being asked whether DeLeo men- tioned anything about the Union in their colloquy, Smith stated that she could not recall . Queried whether she ever had any conversations with the plant manager regarding the Union , the witness replied that "He has talked to me several times," but she then admitted that "Right offhand I don't recall, you know, just what was said " Smith conced- ed that she had been quite active in the union campaign by soliciting signed authorization cards from her fellow employees, that it was well known throughout the plant in Bridgewater that she was a union adherent , and that DeLeo would have had no need to question her concerning her union sympathies "Because it was known by everybody." Moreover, Smith related that the entire content of her conversation with DeLeo was embodied in a statement which she gave to a Board agent, and she conceded that there was nothing in that document to indicate that DeLeo posited any inquiries to her regarding the Union The General Counsel's and the Union 's briefs are under- standably silent regarding DeLeo's alleged threats to and acts of interrogation respecting Roy Simmons, in light of Simmons' flat denials that DeLeo ever mentioned the subject of the Union during their conversation on April 7 I find that the General Counsel has failed evidentially to establish any statutory wrongdoing by DeLeo on this occasion and I shall dismiss this aspect of the complaint With respect to the incident testimonially reported by Juanelle Simmons, DeLeo testified that Respondent 's Presi- dent Winograd made a speech to the employees a few days before the election in which he referred to "frozen benefits" and that, following the address, Juanelle and employee Wagner approached DeLeo to inquire about the meaning of this phrase, and more specifically the meaning of the word "negotiating." DeLeo accompanied the women to a nearby bulletin board Using Simmons' piece rate as an example, which approximated $ 1.40 or $1.45 per hundred items, DeLeo stated that "if this for any reason was not a correct figure or if a change 'had to be made to make this the correct price for this particular operation it is subject to negotiation either upward or downward. I think I mentioned to her that if her operation happened to be a high paying price and there was an increase of approximately $ 1.65 or $1 75 or decrease to $1 10 or 95t a hundred it was done by negotiation ." DeLeo adamantly denied that he told Juanelle or Wagner that their piece rates would be cut in the event the Union was selected as their bargaining agent. As Juanelle Simmons admitted that DeLeo told her that "if the company and the union would negotiate, you might get ninety-five cents," and that DeLeo did not announce that, in negotiations, her rate would be reduced, I credit DeLeo's testimony and find that he did not threaten that piece rates would be lowered in consequence of a union victory at the polls. I shall therefore dismiss this averment from the pleadings. ' in answer to a question on cross-examination as to whether DeLeo had accused her of pressing Messerly to execute a union card, she retorted that "This was not true because I knew better than to do anything like that" on company time In his testimony , DeLeo placed his conversation with Shirley Smith as occurring in November or December 1967, some 3 months prior to the discharge of Bundle Boy Messerly on March 9 He related that he had summoned smith into his office to advise her that he had transferred Messerly to another job because the latter had complained of harrassment by Smith who sought to obtain a signed union card from him during working hours. DeLeo, while admitting that he warned Smith of possible disciplinary action if she persisted in these activities on company time, denied that he threatened to discipline her because of her union allegiance. The General Counsel contends that DeLeo's ban on Smith's solicitation of union membership on company time offended Section 8(a)(1) because "there is no evidence in the record that Respondent at any time had instituted a no-solicitation rule, or had applied a no-solicitation rule, so that such discussions would be permissible." However, this contention is belied by the General Counsel's own exhibit. Appendix 24 to the Regional Director's Report on Objections, which counsel submitted into evidence, con- sists of a notice which Respondent affixed to its bulletin boards on April 9 and which reads as follows: WE HAVE RECEIVED A COMPLAINT THAT ONE OF OUR EMPLOYEES HAS BEEN TALKING TO AND EXERTING PRESSURE ON THE PEO- PLE DURING WORKING HOURS TO TURN THEM AGAINST THE UNION TRYING TO ORGANIZE THIS PLANT. IT IS A VIOLATION OF METRO RULES TO HARRASS, COERCE, THREATEN OR EXERT PRESSURE ON ANYONE DURING WORKING TIME; WHETHER FOR OR AGAINST THE UNION EVERY EMPLOYEE HAS THE RIGHT TO OPENLY EXPRESS OPPOSITION TO AND OPINIONS OF A UNION SO LONG AS THIS IS DONE ON THEIR OWN TIME AND DOES NOT INTERFERE WITH THE RIGHTS OF OTHER EMPLOYEES. EMPLOYEES ENGAGED IN THIS TYPE OF ACTIVITY EXPRESS THEIR OWN VIEWS WHICH ARE NOT NECESSARILY THE VIEWS OR POSITIONS OF METRO MAN- AGEMENT [Emphasis supplied ] METRO PANTS COMPANY By: /s/ Milton M Winograd Moreover , Smith, by her own admission , "knew better" than to solicit for the Union during working hours. In sum, I find that Respondent did not violate the Statute by DeLeo's comments to Shirley Smith. I therefore overrule Objection 3 insofar as it charges DeLeo with preelection misconduct. 2. Bonnie Alger The General Counsel maintains that Bonnie Alger, acting either as a supervisor or a nonsupervisory agent of Respond- ent, coercively interrogated employees at the Bridgewater plant during April and thereby violated Section 8(a)(1). It is undisputed and I find that, in 1966, a deceased partner in Respondent decided to undertake cafeteria opera- tions in the plant and Donald (Donnie) Evans, the shipping 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager at that time, was also designated as cafeteria manager In order to operate the facility, Evans culled the personnel records and noted that Alger, an employee who worked on a piece rate basis in the sewing room, had previously been employed as a cafeteria worker for Howard Johnson restaurants. Evans approached Alger and offered the cafeteria position to her and it was accepted Concurrently, Evans hired a new employee named Eula Estis to work with Alger Sometime thereafter, arrangements were made by Evans for Ramona Rummel and another production employee to assist in the lunchroom during their meal breaks in return for a free lunch It is also uncontroverted and I find that, following her transfer to the cafeteria, Alger's piece rate basis of remunera- tion was converted to an hourly rate and thereafter she received a guaranteed weekly salary computed on the latter basis. Alger's duties in the lunchroom consisted of manning the cash register, and, in cooperation with Estis, peeling potatoes to make french fries, inserting frankfurters in buns, opening canned soups and heating them for consump- tion, cleaning the cafeteria after its use, and dispensing food At the conclusion of the work day, Evans or his secretary removed the cash draw from the register and accounted for the daily receipts which were retained by him. It stands uncontradicted on this record and I find that Alger has no authority to hire, discharge, or discipline employees, or effectively to recommend such action; that she cannot transfer, layoff, recall, or promote employees, or grant time off or reprimand them, and that she does not attend supervisory meetings and cannot park her vehicle in spaces at the plant reserved for supervisors. Like Estis, who concededly is an employee, Alger is authorized to sign for cafeteria deliveries and may reorder food items when stocks are low, but only to a level prearranged by Evans, and she may not independently pledge Respondent's credit Although Alger posted a little sign on the cafeteria door characterizing her as the "manager" for a limited period of time, this sign was fabricated by a "Dymo" punch gun which was equally available to other employees in the plant for their personal use. Ramona Hummel testified that, a few weeks before the representation election, she had finished serving customers and was preparing to have her repast when Alger "asked me if I was for the Union." Hummell replied that she favored that organization, whereupon Alger inquired into her reasons for such adherence. After Hummel noted that "there was to [sic] many things went on at the plant that weren't right," Alger stated, "Well, if I make arrange- ments for you to talk to Mr. Winograd, will you talk to him?" Hummell answered, "I'd rather not. . . it wouldn't do any good because he wasn't out there all the time and they didn't know everything that went on " A few days later, Evans approached Hummel's machine and told her that Winograd wished to see her in his office Upon arriving in Winograd's quarters, and according to Hummel, the former "asked me what one of my com- plaints was and why and I told him that my biggest one was for the Union because I wanted job security. I wanted to know that when I come to work that morning that I had a job when I went home that evening . and if I had to be off for any reasonable length of time, I wanted to make sure I got my job back " Winograd then asked what the complaints of the other girls were, and Hummel responded that this was none of her business and that if Winograd desired to find out he should install a suggestion box in the plant. Hummel conceded that at not time during this conversation did Winograd mention anything about the Union or union activity, or question her as to who was for or against the Union in the plant In his testimony, Winograd recalled that approximately a month before the election he received a visit from Hummel Either Evans and/or Alger had previously notified him that Hummel wished to speak to him At the outset of the meeting, Hummel expressed concern over her job securi- ty and Winograd assured her that she would enjoy the same security as existed in the past He was firm in his denial that the subject of the union's campaign was dis- cussed, a fact which Hummel corroborated in her testimonial utterances. Unaccountably, Alger was not summoned as a witness in this proceeding and, therefore, Hummel's testimony regarding Alger's interrogation regarding her union sympa- thies stands undenied However, even though, as I herein do find that this questioning occurred as Hummel reported, I am not convinced that Respondent should be held account- able for Alger's conduct. As chronicled above, Alger pos- sessed none of the indicia of supervisory authority enumerat- ed in Section 2(11) of the Act. She received and dispensed monies, as would any cafeteria cashier, and performed the same menial tasks as did Estis in peeling potatoes, cleansing the area, and preparing and dispensing food. Clearly, any directions which Alger might have given to her cafeteria cohorts were purely routine in nature and did not involve the utilization of independent judgement. Accordingly, I find and conclude that Alger was not a supervisor in the statutory sense at the times material herein Nor am I convinced that Respondent had invested her with agency status, as the General Counsel argues In support of his argument, counsel points to the fact that Alger placed a sticker on the cafeteria door proclaiming her as the "manager," that she ordered large quantities of food, and that she "evidently arranged for an interview" between Hummel and Winograd. It is undisputed that other employees could and did utilize a printing punch to fabricate various signs, and there is nothing in this record to demonstrate that the sign which Alger perfected was mandated or condoned by Respondent In fact, Evans' testimony is undisputed that the sticker was removed after a brief appearance on the cafeteria door Nor is there record evidence that Alger "ordered" vast qualtities of food, as heretofore noted Finally, I am not convinced that Alger's suggestion, made to Hummel, that she arrange for an interview with Winograd, portrays anything more than Alger's concern for the fears of a fellow employee concerning her future terms and conditions of employment in the event of the plant's unionization 8 I shall therefore ' The General Counsel and the Union also emphasize that Alger served as the "secretary" of the "Hourly Employees" committee, and, that, by occupying this position, she thereby served as an agent of Respondent However, as noted elsewhere in this Decision, both of these advocative parties abandoned any contention that the committee was either nurtured by Respondent, or in any way harbored by it METRO PANTS MFG. CO 497 dismiss the complaint insofar as it alleges that Respondent violated Section 8(a)(1) by the conduct of Bonnie Alger, and I shall also overrule the Union's objection which pertains to her activities as a basis for upsetting the election. For the sake of chronology, it might be well at this juncture to consider the propriety of Winograd's conduct during his meeting with Hummel Paragraph 6(n) of the complaint charges that Winograd unlawfully interrogated employees at the Bridgewater installation regarding their union sympathies and those of other employees The General Counsel advises that this allegation has reference to Wino- grad's conversation with Hummel before the election. Wino- grad testified that the did not summon Hummel to his office on this occasion and there is nothing in the latter's testimony which convincingly refutes this averment Wino- grad further testified that at no time during his discussion with Hummel was the subject of the Union broached, and Hummel's testimony is patently corroborative of Wino- grad's in this regard. Accordingly, I fail to perceive in what manner the General Counsel has established that "President Winograd interrogated employees concerning their union sympathies and the union sympathies of other employees." In the absence of probative evidence on this issue, I shall dismiss the allegation from the pleadings. The companion phase of the Union's objection is also overruled. (3) 3. The interrogation of Respondent 's employees by Clark, (4) Bradshaw , Jolly, Smith , and Harper (5) The complaint charges that, between March 27 and April 2, 1969, Attorneys Henry C. Clark, W Stephen Bradshaw, Lewis F Jolly, and William R. Smith, in addition to Investigator L Wayne Harper, acting as Respondent's agents, illegally interrogated employees concerning their union sympathies, affiliations, and activities.' At the hearing, the General Counsel and Respondent stipulated that, between the aforesaid dates, the named individuals undertook to interview all employees at Respond- ent's plants in Harrisonburg and Bridgewater who had been employed on March 13, the date on which the Union made its initial demand for recognition. A total of 561 employees were privately and individually interviewed by one of the aforementioned individuals Employees were released from their normal duties by their respective supervi- sors, who instructed them to report to the interviewing room, and the interviews lasted approximately 10 minutes each. With some minor variations, an interview was normally conducted according to a standard format hereafter set forth- My name is , I am an attorney with Clark & Bradshaw who are attorneys for Metro Pants Co As you know, an election was held on May 9, 1968, to determine if the employees wished to select Amalgamated Clothing Workers Union as their bar- ' This allegation of the complaint is the only one which does not find its parallel in the Union's objections to the election Because of chronology, this alleged misconduct could not, of course, have affected the results of the election gaining agent A majority of the employees did not vote for the union. After the election the union filed objections to the election and has also filed unfair labor practice charges against Metro Pants Company. Agents of the NLRB have made investigations of the various objections and charges and we are now advised that NLRB agents intend to investigate the facts surrounding the signing of union cards by various Metro employees. In preparation of the defense of Metro on these charges we would like to ask you several questions, but first we want you to clearly understand that (2) This statement is given in the presence of Before I gave this statement and before he asked me any question, Mr.- advised me that he worked for lawyers of Metro Pants, that he was investigating an unfair labor practice charge which had been filed against Metro Pants before the National Labor Relations Board in Case No. 5-CA-4183; that I was not requested to answer any questions or make any statements if I did not choose to do so; and that there would be no reprisals or other actions taken against me by Metro Pants because of any answers that I might give to the questions or because of any statement that I may make, regardless of the contents of such statement My mailing address is I was employed at Metro Pants on ,196-, and I am still employed During the year 196 _ , I did (did not) sign a (card) (petition) (paper) which pertained to Amalgamat- ed Clothing Workers Union, the document referred to was signed by me on or about ,196- (6) At or before I signed the document referred to above I was told the following about the document- Subscribed and sworn to before me this day of March, 1969. Employees were requested to sign the completed statement but were not required to do so. Approximately 50 refused to give or sign a statement; approximately 65 gave statements but refused to sign, and approximately 435 gave and signed these statements. The General Counsel called to the stand several employees who testified regarding their interviews by Respondent's attorneys and investigator However, in their briefs, neither the General Counsel nor the Union seriously contend that the interrogators departed from the above-stipulated format but, rather, they rely upon the content of the questionnaire to support their thesis of illegality 10 Additionally, the Union 10 In his brief, the General Counsel observed that "While Attorney Clark varied from the text of the prepared form in making the interviews which he conducted personally, other interrogators followed the form recited in the stipulation " Beatrice Gums was the only witness summoned by the General Counsel to report on Clark's interrogatory tactics After careful review , I can divine nothing from her testimony which would substantiate counsel's observation that Clark deviated from the prepared form when he questioned Gums, and, I would note, counsel has not directed my attention to any supportive evidence in this regard 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argues that the questioning exceeded the permissible bounds of inquiry because the Board's Regional Office had not filed a complaint against Respondent alleging a violation of Section 8(a)(5) of the Act by unlawfully refusing to bargain with that labor organization I first turn to a treatment of the Union's alternate argument As heretofore chronicled, the Union filed charges against Respondent claiming that the latter had unlawfully rejected the union's demand for recognition on March 14. These charges were investigated by the Regional Office and were dismissed on December 6 as lacking in merit The Union appealed the dismissal and, on December 27, the General Counsel of the Board advised the parties that the appeal had been taken under advisement On March 17, 1969, the Board informed Respondent that a renewed investigation of the charges had been undertaken and that it intended to interrogate the signatories of union authorization cards to determine their authenticity. Respondent's agents under- took their questioning between March 27 and April 2, 1969 At this late date, those charges are still hanging over Respondent's head In my opinion, it is sheer frivolity to assert that Respond- ent is legally entitled to prepare its defense to a refusal- to-bargain charge after a complaint has issued against it, but not after a charge has been lodged. Nothing uncovered by the Trial Examiner's independent research even remotely suggests the prevalence of such a restrictive decisional approach. The patent inequity which would arise from that approach is particularly highlighted in the instant proceeding. The refusal-to-bargain charge was filed on August 28, 1968, based upon an alleged transgression of Section 8(a)(5) on March 14, 1968. Almost 2 years have elapsed since the critical date of rejection. In these circum- stances, to thwart Respondent's inquiry into the validity of authorization cards executed years earlier would impose an intolerable burden upon it if, as is entirely possible, the General Counsel should now or at some future date decide to complain against the Respondent. Witnesses who have signed cards which the Union utilized to support its claim to majority status, as well as its unfair labor practice charge, may have succumbed or removed themselves from the locale, thereby impeding Respondent's ability to investigate the circumstances surrounding the execution of the designations. Moreover, Respondent should not be burdened by inadequacy of time in which to conduct its investigation following issuance of a complaint particularly where, as here, 550 employees are involved." In short, I find no merit in the Union's alternate contention With regard to the major thrust advanced by the General Counsel and the Union to pin statutory liability upon Respondent for the agents' interrogatories, the Board, in Johnnie's Poultry Co.,` announced the guidelines to be utilized in determining whether an employer's (or his legal agent's) interrogation of employees exceeded the bounds of permissible exploration. The Board did so by noting: " I would note that the complaint herein issued on August 13, and the trial commenced on August 26 " 146 NLRB 770 In allowing an employer the privilege of ascertaining the necessary facts from employees [to prepare its defense for trial of a case], the Board and courts have established specific safeguards designed to mini- mize the coercive impact of such employer interroga- tion Thus, the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participa- tion on a voluntary basis, the questioning must occure in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees. (Citations omitted) When an employer transgresses the boundaries of these safe- guards, he loses the benefits of the privilege [At 775. Emphasis supplied.] Neither of the proponents of this litigation seemingly have any quarrel with the introductory phases of the questionnaire or subparagraphs (1), (2), and (4). With respect to subpara- graph (3), although these litigants are not entirely in harmo- ny concerning the coercive impact of all of the alphabetized subsections contained therein, " the main brunt of their attack is that the subsections sought to elicit "information concerning an employee's subjective state of mind" and hence offended the guidelines set forth by the Board in Johnnie's Poultry. I am not convinced that the General Counsel and the Union have sustained their challenge to the legality of the questionnaire. The Respondent has been charged with unlawfully refus- ing to bargain with the majority representative of its employ- ees. To sustain a violation of Section 8(a)(5), it is incumbent upon the General Counsel to prove that the Union possessed a majority of delegations of bargaining authority, freely obtained, validly signed, and timely dated. In defense of these charges, Respondent is lawfully entitled to show that the authorization cards were not dependable as valid designa- tions for that labor organization because they were derived, for example, through material misrepresentations to the employees," or by acts of intimidation 15 To say, as do the General Counsel and the Union, that Respondent's attorneys should be precluded from asking employees wheth- er they signed their cards because they feared the loss of their jobs, because of threats and other pressures, or because of their desire to rid themselves of the annoyance of tandem solicitations would, in essence, foreclose a critical and necessary inquiry, and thus deny to them the opportuni- ty of demonstrating that their client was not a wrongdoer because the Union had never in fact procured an uncoerced majority of representational designations. So far as this record stands, the attorneys did not seek to extract informa- " The Union contends that it was unlawful for Respondent's attorneys and investigator to pose the queries contained in subpar 3(a) through (g) The General Counsel does not claim that the question covered by subpar 3(b) was proscribed " See Trend Mills, Inc, 154 NLRB 143 " See Purity Foods, Inc (Sar-More Food Stores), 150 NLRB 1523 METRO PANTS MFG CO 499 tion from employees concerning their "gripes" against Respondent which led them into the Union's arms so that Respondent could counteract and blunt the Union's appeal by instituting attractive changes in wages and work- ing conditions If my interpretation of the underscored language in Johnnie's Poultry is correct, this is the type of conduct which the Board sought to interdict when it cautioned that the questions "must not exceed the necessities of the legitimate purpose by prying into other union matters" or must not be designed to elicit "information concerning an employee's subjective state of mind " The General Counsel can draw scant comfort from Tilton Tanning Corp." In that case, the employer had indulged in a series of unfair labor practices found by the Board prior to the interrogation of employees by a company official In addition, the Trial Examiner, with Board approv- al, found that the assurance given to the employees that they were "free" to answer or not to answer the questions posed was "vague." Moreover, the employees were not permitted to observe what the inquisitor wrote on the questionnaire. In the instant case, there is no dispute that Respondent's employees were amply apprised of the purpose for the inquiries, were fully informed that their participation in the investigation was entirely voluntary and that no reprisals of any kind would be visited upon them regardless of their answers, and were allowed to read their statements before signing them. Furthermore, it seems clear that the questions were not coercive in nature Finally, I have hereto- fore found that the questioning did not occur in a context of illegal hostility to the Union Accordingly, I find and conclude that Respondent did not violate Section 8(a)(1) of the Act by the interrogations conducted by Clark, Brad- shaw, Jolly, Smith, or Harper." 4. Dissemination of literature relating to loss of health and hospital insurance benefits, and threats to curtail those benefits The complaint alleges that, on May 9, immediately prior to the election, Respondent circulated literature to employees at both plants which threatened them with loss of certain existing health and hospital insurance benefits in reprisal for engaging in activities on behalf of the Union. It further alleges that, on May 2, Supervisors Arelia Sterling, Ruth Nutter, Dorothy Smallwood, and Hattie Lilly verbally threatened employees at those plants with a similar loss of benefits. The Union's Objection 4, consolidated for hear- ing herein , states in pertinent part: 4. During the course of the pre-election campaign the Employer by its agents and representatives threat- ened loss of employment, plant closing, cancellation of existing Blue Cross Insurance and Travelers Insur- ance Company plans immediately upon the Union's election. Objection 9, also consolidated herein, avers that: 9 In the context of the prior threats of cancellation of Blue Cross and other insurance benefits during " 164 NLRB 1168. " See Madison Brass Works, Inc, 161 NLRB 1206 the week preceding the election, the employer's distribu- tion, the morning of the election at both plants, of a letter from Assistant Manager of Western Division of the Virginia Hospital Service Association, to the Employer's President with bold faced comments includ- ing 'No matter what Union says-Blue Cross Says No! And They Know!' constitutes a threat and a false and misleading statement to which the Union had no opportunity to reply. Inasmuch as these allegations and the objections raise sub- stantially the same core problem, they will be treated collec- tively here. It is undisputed and I find that, for a number of years, Respondent's employees have been covered by an insurance program consisting of Blue Cross-Blue Shield group coverage which is coordinated with and implemented by major medi- cal insurance underwritten by the Travelers Insurance Com- pany. The plan is available to the employee and his family for which he pays half the cost with the Respondent bearing the remainder Throughout its extensive campaign to orga- nize the employees at the Harrisonburg and Bridgewater plants, the Union widely publicized its own insurance pro- gram which is carried by the union-owned Amalgamated Life Insurance Company, Inc To bring this plan to the attention of the employees, the Union distributed brochures entitled "Insurance and Retirement Program for ACWA Members in the Cotton Garment and Allied Industries." A major attraction of the program was that it is financed wholly by the employer through contributions based upon a certain percentage of his payroll. Other attractive features provide for surgical coverage up to $300, hospital benefits up to $30 a day, and maternity benefits up to $200 Becoming aware that the matter of insurance coverage had assumed prime proportions as an issue in the election drive, Respondent dispatched a letter to its employees on April 25 entitled "Hospitalization, Surgical, Sickness and Accident Benefits," which was accompanied by a compari- son of the benefits offered by the union plan and those maintained by Respondent. In this letter, written over the signature of President Winograd, Respondent stated that "The union says all of these [benefits] will be free Let's see just what free means. A comparison of the union plan with the Metro plan is enclosed Check and see what you have to lose on these benefits alone Under the Metro plan you pay about one-half of the cost. But the union plan is free! Isn't your present plan worth the difference to you?" Mildred Eavers testified that, approximately a week before the election on May 9, a radio was turned on near her work station and she overheard a paid advertisement spon- sored by the Union which dealt with the subject of Blue Cross insurance Supervisor Arelia Sterling was present When the announcement ended , and according to Eavers, "Mrs. Sterling said that if the Union got in that we would not have Blue Cross." Beatrice Gums worked at the Harrisonburg plant. She testified that, on May 2, she engaged in a conversation with Supervisor Ruth Nutter. Nutter approached Gums' machine and commented that "if we voted the union in on the day we voted that we wouldn't have no more 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blue Cross insurance " Gums remarked that she did not believe that this would happen, to which Nutter replied that "it would be dropped the day after we voted." Gums opined that she could not understand how Blue Cross insurance could possibly be abandoned prior to the end of the month inasmuch as it had been paid up for the month of May Nutter stated that program "would dust be automatically cancelled right then" and the monies refunded to the employees Ruth Long was employed at the Harrisonburg plant under the supervision of Dorothy Smallwood and Hattie Lilly. She averred that, once each month, a Blue Cross representative would visit the plant to answer any questions which the employees might have about their coverage and that the employees were free to make inquiries of him About a week before the election, she decided to ask the representative "if the Union won the election if I could still keep my Blue Cross." Standing within earshot were Smallwood and Lilly. Upon receiving Long's inquiry, the representative replied that "you couldn't carry Blue Cross if you are in the Union plan" and that "If the Union won the election, that I couldn't carry Blue Cross if I worked in a Union plant" because "the Union does have insurance and you couldn't carry Blue Cross too " Long then inquired whether she could maintain the Blue Cross coverage privately and the representative responded in the negative At this point, Lilly spoke up and said "if we want to keep our Blue Cross we keep the union out," and Smallwood added "If you want to keep the Blue Cross you vote for the Company." It is uncontroverted and I find that, on May 6, the Union sent a letter to President Winograd, with copies to Blue Cross representatives, accusing Winograd of having sponsored and circulated false rumors that the Respondent could cancel the Blue Cross insurance for its employees if the Union won the election The letter further recited that "These threats and undenied rumors on the part of Management constitutes an unfair labor practice in violation of Federal law, for which you, the Company and its Agents will be held responsible. We challenge you to publicly state by signed letter to the employees, or by other public news media that you will cancel the employees Blue Cross Coverage if they vote for the Amalgamated on May 9th. Mr. Winograd, you cannot threaten to stop Blue Cross Hospitalization Insurance and other benefits as a means of frightening your employees , it is against the law " On the same date, the Union mailed a leaflet to the employees which bore the caption "The Amalgamated Clothing Work- ers of America and The Federal Government Guarantees You That The Company Cannot Legally Cancel Your Blue Cross Insurance Coverage Because Of Your Vote For The Union " The leaflet also set forth the contents of the letter which the Union had mailed to Winograd It is also uncontroverted and I find that, on the following day, May 7, Winograd delivered a speech from a prepared text to the employees at both factories With respect to the subject of insurance, Winograd narrated: Now you know as well as I do, that the Union owns its own insurance company so they would much rather have their own union insurance instead of the Blue Cross and the Travelers. Now, we have been accused of threatening to cancel the Blue Cross if the Union wins. I want everybody to know this, and I want everybody to hear it once again. Nobody from Metro management has ever said anything like that and noth- ing could be further from the truth. These lies have been started and these untruths and these rumors have been started elsewhere And again, let me repeat, once again I want to repeat-and believe me I want to get the exact words to you is that we have been accused of threatening to cancel the Blue Cross if the Union wins. This is not so. Nobody has ever said anything like that. So we will all understand each other, I am sure I will never have to repeat it again. I mentioned to you, through my letter of May 1 during negotiations all wages and fringe benefits are frozen No change can be made until an agreement is reached We do know that the Union has been saying ever since this campaign of theirs started, that they were going to get their insurance plan, which is what they have been promising This is what their leaflets say, this is what they want. We, I-Metro management feel certain that this is not what you want. Now remember that nobody can have both plans, so this means only one thing If the union have their way, they will get you the union plan and consequently the Blue Cross and Traveler will necessarily have to be dropped. This is understandable Learning of Winograd's speeches and their content, the Union purchased 30 minutes of air time on Harrisonburg Radio Station WKCY for May 8 and, throughout the day, the following spot announcement was made Attention Metro employees Now that the company has withdrawn any implication that your Blue Cross coverage will be terminated automatically as a result of a union victory, we pledge that for those of you who wish to continue your Blue Cross coverage in addition to our union insurance plan which we will negotiate with the Metro Pants Company, arrangements will be made for the continuance of such coverage We have this arrangement in effect in other areas This being our last radio announcement on behalf of the Amalgamated, we wish you all the good fortune in the world in your election tomorrow. As Winograd made it abundantly clear in his speeches of May 7 to all employees that the existing Blue Cross- Blue Shield-Travelers Insurance program would not be cancelled if the Union was victorious at the polls, but that its continued existence would be the subject of negotia- tions between the parties ,1e and as the Union in its radio announcements of May 8 repeatedly brought this intelligence to the employees, I am convinced and find that the salient contention raised by the Union in Objection 4. namely, " I would particularly note that General Counsel's witness Ruth Long acknowledged that Winograd delivered this speech and announced that "It [Blue Cross-Blue Shield -Travelers Insurance] wouldn't have been dropped immediately " METRO PANTS MFG CO. that Respondent threatened the cancellation of "existing Blue Cross Insurance and Travelers Insurance Company plans immediately upon the Union's election, " lacks merit and therefore cannot constitute grounds for upsetting the election results. I shall, accordingly, overrule this Objection. Concerned about the apparent confusion which existed in the minds of the employees regarding the continued Blue Cross-Blue Shield coverage in the event that the union's insurance plan was adopted in negotiations, Wino- grad summoned Robert Dreschler to his office on May 7. Dreschler is a local insurance agent who services the Travelers' insurance policies at Respondent's plants. When Dreschler arrived, Winograd placed a call to H. Richard Forrest, the Manager of the Western Division of Blue Cross-Blue Shield and Dreschler then took the phone. Dres- chler inquired as to what position Blue Cross-Blue Shield would assume if the Respondent were to take group health and accident insurance with another carrier, citing that the possible other coverage might be the union's plan Specifically, Dreschler asked whether Blue Cross-Blue Shield would continue its group insurance at the plants if the union's plan was adopted Forrest replied that he did not know what his company would do and promised to look into the matter Forrest thereupon telephoned his home office where he spoke to the enrollment director and informed him that Winograd sought the information because of the many questions which the employees had raised during the union campaign. Forrest testified that the director was unsure of what course the carrier would pursue because he had insufficient information before him relating to the union's indemnity plan. Forrest related that he knew what was troubling his colleague because, a few months earlier, they had established a group for a plant at Farmville, Virginia, where the Union provided the coverage, but this was a low indemnity policy issued on an individual basis, i.e., the policy extended only to the employee and not to his family, and the benefits were limited to $20 per day for the hospital room and all extras." At this juncture, Forrest decided to return Dreschler's call and obtain more information Forrest placed the telephone call and his uncontroverted testimony regarding the content of their conversation goes as follows: I called Mr Dreschler back and I explained to him that we would have to know more information as to whether or not I could definitely tell him that we would keep the group there or terminate it or cancel it. I use the term `terminate' and `cancel ' They might mean the same thing to you but we terminate any group, but we would transfer the people to what we call `pay direct,' that is, individual contracts. When we cancel a group, the group is cancelled and all contracts in that group are cancelled and the people are not transferred to pay direct " In the Regional Director 's Report on Objections, he states that his independent investigation of this matter disclosed that the Farmville plant was actually represented by the International Ladies ' Garment Workers Union , AFL-CIO 501 So, in explaining this to Mr Dreschler about the fact that we really couldn't make a decision at this time he informed me on the proposed coverage that might come into Metro Pants consisted of a contract that allowed $30 a day for room, $300 for extras and a $300 fee schedule and also covered the spouse or the family of the employees. I told him immediately that if Metro Pants secured another carrier with that type of benefit that we would cancel our Blue Cross-Blue Shield and the subscribers presently enrolled under Blue Cross-Blue Shield would not be transferred to pay direct and in this case, after the contract was cancelled if the employee wanted to continue Blue Cross they wouldn't be allowed to if they submitted an application to Blue Cross-Blue Shield It would be turned down because of our under- writing policy which is on all of our literature for non-group applications on that It states that if a person was employed in a group of ten or more employ- ees they are not eligible for a non-group contract. He then asked me if I would then write a letter to that effect Mr. Winograd would like such a letter in that many of his employees were asking him what would happen to Blue Cross-Blue Shield I said yes I would write such a letter and then I hung up. Forrest then telephoned his office and dictated a letter to Winograd. After clearing its contents with counsel for Blue Cross-Blue Shield, he personally delivered it to Wino- grad The text of this letter reads: Should Metro Pants Manufacturing Company acquire other group hospitalization, I feel that you should be advised of the terms of our Contract . . . which states, `This Contract may be terminated by the Associ- ation, without prior notice, if the group which the Subscriber is a member contracts for any other hospital or medical-surgical expense coverage ' Our normal practice is to cancel all contacts in the group Under these conditions, non-group applications would not be accepted from employees of Metro Pants Manufacturing Company, since non-group membership is not available to persons who work where there are more than ten employees. After reading the letter, Respondent's officials were appar- ently satisfied that Winograd had adequately and truthfully apprised the employees in his speeches on May 7 concerning the impact on their Blue Cross-Blue Shield coverage in the event the union plan was adopted. However, Respond- ent's General Manager Irving Helbraun testified that, on two occasions during the afternoon of May 8, he heard the union's radio announcement in which that organization pledged to obtain Blue Cross-Blue Shield coverage in addi- tion to the union insurance for those employees who desired it. Helbraun became concerned over the timing and content of the announcement, in consequence of which he decided to respond to the union's claim. That evening, he drafted a leaflet and had it printed. In addition to a reproduction of the letter which Respondent received from its insurance carrier, the leaflet bore the bracketed language "[UNION RADIO ADS & CALLS SAY YOU CAN GET BLUE 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CROSS TOO']" at the top, and "[NO MATTER WHAT UNION SAYS-BLUE CROSS SAYS NO! AND THEY KNOW"]" at the bottom The leaflet was distributed to all employees as they entered the plants prior to the election on May 9 On the basis of the evidence adduced on this issue, I am not persuaded that the leaflet which Respondent circulated on May 9 constituted a threat to the employees that they would forfeit their Blue Cross-Blue Shield coverage if they selected the Union, nor am I persuaded that the document constituted a false and misleading statement While Forrest's testimony indicates that his company, on some occasions, does allow for dual coverage and does permit group insurance in a plant where a union-funded plan of health and hospitalization insurance obtains, his testimony also makes it clear that such dual coverage is tolerated by his company only where the union plan is of a "low indemnity" character. Moreover, Forrest also explained that his carrier was opposed to permitting employ- ees covered by a union-sponsored program or any other program to "pay direct" for Blue Cross-Blue Shield coverage because, through expenence, it found that generally only "high nsk" employees applied for the added insurance. Furthermore, the record is completely devoid of evidence that the Respondent and Blue Cross-Blue Shield were in league to falsify the latter's insurance procedures, or that it was not "normal practice" for that carrier to cancel its coverage where other group insurance is obtained by a company which employs in excess of 10 workers. In short, I conclude that Respondent did not threaten its employees with loss of health and hospitalization insur- ance benefits when it distributed the leaflet on May 9, and that the literature did not embody false and misleading statements of the carrier's procedures to which the Union should have been afforded an opportunity to reply I shall therefore dismiss the complaint wherein it alleges that the contests of the leaflet were violative of Section 8(a)(1), and I shall also overrule Objection 9. Inasmuch as the statements of Supervisors Sterling, Nutter, Smallwood, and Lilly, made to employees Eavers, Gums, and Long, that "if the Union got in that we would not have Blue Cross," were simply repetitive of what the supervisors and employees had been told by the Blue Cross-Blue Shield representative who visited the plant, and as these statements merely garrot- ted the carrier's "normal policy," I shall dismiss so much of the complaint as charges these supervisors with violations of Section 8(a)(1) by their utterances regarding insurance benefits I shall also overrule Objection 9 as it relates to their statements 20 5. Respondent's assistance to employees in the dissemination of antiunion literature The complaint alleges that, "On or about April 1968, at the Harrisonburg plant, Respondent paid and otherwise 30 Even if, as Gums testified , Supervisor Nutter stated that Blue Cross- Blue Shield "would be dropped the day after we voted ," I do not deem this utterance statutorily offensive or objectionable in view of Winograd's clear and unequivocable assurances to the employees made tihortl^ helore the eleLuon that "nothing uxild he farther from the truth assisted employees in disseminating antiunion literature " The Union's Objection 6, a companion of this allegation, recites that: The Employer by its officers, plant managers, supervi- sors and its attorney, solicited, organized and planned the formation and operation of an employee anti-union movement designed to unduly influence employee senti- ment, providing paid time before plant closing for employee members of said committee to distribute on plant property, assisted by supervisors, anti-union leaflets; the design and printing of said leaflets were planned by the Employer in conjunction with the "Hourly Employees" committee It is undisputed and I find that, at the height of the Union's organizational campaign various antiunion employ- ees formed an "Hourly Employees" committee to counteract the Union's drive. Garland P. Showalter, the head mechanic at the Harrisonburg plant, whom the Regional Director found to be a rank-and-file employee in his Report on Objections, launched this organization and only employees were included in its cadre. The record discloses that, on April 6, Showalter learned that the Union had mailed a letter to the Respondent on the preceding day accusing him of threatening and urging employees to vote against the Union, and requesting that Respondent put a stop to these activities. On April 9, Respondent notified its employees that it was contrary to company rules for employ- ees to threaten, harass or coerce employees, whether such action was undertaken either for or against the Union The Union's accusation prompted Showalter to consult with his private attorney because he feared that the Union's letter manifested an intent to charge him with unfair labor practices. With the aid of the attorney, Showalter drafted antiunion leaflets which were distributed to employees at both plants under circumstances to be chronicled below The record establishes, the parties agree, and I find that Respondent took no part in planning the formation or operation of the committee, and that it played no role in the design of the committee's handbills or their printing. Accordingly, and as indicated in a marginal reference herein- above, the only viable portion of Objection 6 relates to the averment that Respondent engaged in objectionable conduct by "providing time before plant closing for employee members of said committee to distribute on plant property, assisted by supervisors, anti-union leaflets " Showalter was in charge of distribution of the handbills at the Harrisonburg installation and Clyde (Herby) Deviers, a nonsupervisory presser at Bridgewater, performed this chore at the latter plant. It is undisputed and I find that these men interrogated employees during nonwork time as to whether they desired to circulate the leaflets outside the plants on certain days 21 The testimony in support of the allegation in the com- plaint, as well as the relevant portion of Objection 6, dealing with Respondent's charged misconduct in this 31 In his Report on Objections, the Regional Director concluded that the leaflets did not contain objectionable material Neither the General Counsel nor the Union argue contrariwise , and I so find METRO PANTS MFG CO. regard, was elicited by the General Counsel and the Union from the following witnesses. Carol Lam testified that, approximately 2 weeks before the election, she observed 15 or 20 employees leave their machines at the Bridgewater plant at 3.50 p.m to distribute leaflets on the outside, despite the fact that the work shift did not end until 4 p in She further testified that she also noticed her floorlady standing outside the factory dispensing handbills. The witness "assumed" that the pam- phlets which the committee distributed were the same as those proffered by the supervisors, but she subsequently admitted that she was not certain that this was so. Lam also received a leaflet from Union adherents that day Patricia Dean, whose husband is employed by the Union, worked at the Harrisonburg plant This witness recounted that, on 4 or 5 days before the election, she noted that some 30 or 40 girls left their machines approximately 10 or 12 minutes before the normal quitting time of 4.30 p.m. She then admitted, when shown her sworn affidavit, that these premature departures occurred only on two occa- sions. Dean also related that it was customary to cease work at 4:25 p.m. in order to clean her machine and prepare to check out, and that "If you want to leave early you usually ask your supervisor " Dean further testified that she saw both supervisors and "Hourly Employees" committee members passing out literature upon her release from work When asked whether both the antiunion employees and the supervisors handed out the same brochures, Dean replied "I guess so," although she thereafter made the remarkable statement that she believed the handbills were identical "because I didn't take any." Finally, Dean conceded that she really did not know whether the leaflets were the same. It is Beatrice Gums' testimony that, on 2 or 3 days prior to the election, "A few minutes before the bell rang for us to leave our machines, a lot of girls got up and left." An employee seated behind Gums informed the latter that the girls were destined to handbill outside the factory. After the employees departed their work stations, Gums turned to Supervisor Glenn Hendrick, who was standing near her, and "we asked him if we could go along with them and he told us no." According to Gums, Hendrick "said that we had to stay at our machines. He wouldn't give us any reason why we couldn't." Eugene Lawson is employed as a presser at Bridgewater. He related that, a few weeks prior to the election he observed employees quitting work approximately 5 minutes before the end of the shift and this happenstance occurred on more than one occasion. When questioned as to what endeavors the departing employees intended to undertake, Lawson stated that "At that time the pressers were punching out a few minutes earlier than the rest of the employees in order to get out of the parking lot before, you know, before the rush at the gate and you know, everybody was doing it And so, we'd get out a couple of minutes before everybody else did and then when we'd get out they would be standing at the door giving out leaflets for the company." Lawson conceded, on cross-examination, that he made it a practice of leaving work 5 minutes 503 before the end of the official work day, and as much as 15 minutes before quitting time "when we run short " He explained that he had never been "docked in pay" for leaving early because "I work piece work I don't get paid by the hour. I get paid for what I do." Lawson also admitted that Respondent's officials never objected to these early departures, whether to avoid rush traffic or to distribute leaflets, provided the employees had attained their piecework quotas for the day. In a statement given to a Board agent, Lawson swore that "I can verify that the Company released production employees early to pass out leaflets on Tuesday, April the 30th and on Friday, May the 3rd " To support his claim testimonially, the witness recounted that "they went out the door and they couldn't went out without the supervisor's okay. So, I assumed that they did leave." Nevertheless, he acknowledged that he proceeded out of the very same door at the very same time and that he punched the timeclock signifying his early absence from the plant, and that two other pressers who occupied the same position as Lawson were also early absentees. Lawson further allowed as how he could have left work early to distribute union literature "If the Union would have asked me to help them." Finally, he admitted that the leaflets which the "Hourly Employees" committee dispensed bore the nomenclature of "Hourly Employees " Other witnesses called by the General Counsel, such as Ruby Hummel, Dorothy, Michael, and Ruth Hickman, testified that they noticed employees quit work early on two occasions prior to the balloting on May 9, approximately 15 minutes or less before the workday ended However, these witnesses were unable to support the General Counsel's and the Union's insistence that Respondent's supervisors knowingly excused these absences, or that the supervisors distributed the same leaflets as did the antiunion employees zz Indeed, Hummel admitted asking her supervisor, Ruth Nut- ter, where the employees were headed for when they left early and Nutter "said she didn't know." Hummel also conceded that she did not seek permission to leave work prematurely She testified that she observed Nutter dispens- ing leaflets after quitting time outside the plant, but acknowl- edged that she was uncertain as to whether the contents of Nutter's pamphlet originated from the "Hourly Employ- ees" camp or the printing presses of Respondent. The circumstances surrounding the distribution of "Hourly Employees" leaflets were related by employees Shirley Michael, Nancy McCray, and Clyde Deviers on R spondent's behalf. Michael testified that, prior to the election, she quit work on two occasions approximately 3 to 5 minutes before checkout time in order to hand out literature for the committee. Michael noted that, on each such occasion, she punched out on the timeclock. Her testimony is uncontroverted and I find that Michael " Hickman, a business agent of the Union, testified that no prounion employee of Respondent assisted in the distribution of union literature at the plants and, so far as appears, no union-oriented worker sought permission from supervisors to leave work early to distribute union literature 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is a pieceworker who was not a "makeup," i.e, she had already reached her production quota so that Respondent would not have been subsidizing her absence She also averred without contradiction that her departure was sponta- neous and that she was unaware of whether her supervisor saw her leave work McCray was also a pieceworker who was not on "makeup" on the two occasions when she assisted the committee in circularizing antiunion leaflets, and therefore her early departure from her duties on these occasions before the election could not have been financially supported by her employer. While McCray believed that her supervisor, Burkeholder, observed her leave the plant before the end of the shift , McCray opined that "I don't know whether she knew where we were going ," although McCray added that "She probably had an idea of what we were doing" because "why else would we get up and leave?" Finally, Clyde (Herbey) Deviers testified that he left his job as a presser at Bridgewater to distribute pamphlets for the committee on 2 days prior to the election although his work shift had not ended . He testimonially reported that he never sought the permission of his supervisor to do so because, being employed on a piecerate basis, he was permitted to depart work as much as 15 minutes prior to the conclusion of his work day He also reported that management eventually informed the employees that they would not be allowed to leave work early. Rounding out the testimony on this issue, Respondent's General Manager Irving Helbraun testified without contra- diction, based upon Respondent's timecards, that some employees quit work between 2 and 7 minutes before the bell rang on two occasions before the election None of the early departees were docked up in pay. However, his records establish that , during the relevant periods , prounion employees such as Mildred Juanita Nixon left work from 1 to 3 minutes before quitting time without loss of pay. Helbraun also testified without dispute that it had been "a policy over a long standing time that people did check out early and we overlooked it and we didn 't dock them for their pay. They were always paid for it with the possible exception of any extended time over 15 minutes " On April 30, he learned that a group of employees had collective- ly left work early and Respondent's officials decided to monitor the situation for a recurrence . When he once more learned that a number of employees had engaged in this activity, he instructed his plant managers "to relay through their supervisors that this was not to occur again," and the practice thereafter ceased. I am not convinced on this record that the General Counsel has established by a preponderance of the evidence that Respondent "paid or otherwise assisted employees in disseminating antiunion literature," nor am I persuaded that the Union has hit the target of objectionable conduct by Respondent's activities in this regard . While it is true that some employees at both plants declared a group recess about 2 to 7 minutes before quitting time to offer their services to the "Hourly Employees" committee in distribut- ing antiunion literature, it is also true that other union adherents enjoyed the same privilege of early departure without loss of pay. Moreover, there is absolutely no evi- dence spread upon this record which would indicate that prounion employees either requested , or were denied, "equal time" in which to campaign for that labor organization and, as Lawson lamented , although he made it a practice of leaving work early without suffering monetary loss, he could have pressed the Union 's cause on these occasions, "If the Union would have asked me to help them"" Further- more, the record fails to demonstrate that any leaflets distributed by the committee found their source in Respond- ent. Accordingly, I find and conclude that Respondent did not unlawfully pay or assist the antiunion employees in the distribution of the "Hourly Employee" committee's leaflets, and therefore it neither offended the provisions of Section 8(a)(1) in this connection, nor did it thereby upset the requisite laboratory conditions for the conduct of a free and untrammeled election . I shall therefore dismiss this allegation in the complaint, and overrule Objection 6 Because the Union 's Objection 8 falls within the general ambit of Objection 6, it will be treated at this juncture Objection 8 recites that The Employer by its President and other agents on or about April 18th and 29th , 1968, and on other occasions during the pre-election period permitted soli- citations and discussions involving the campaign by members of the employee committee described above and other employees opposed to the Union on company time and property while at the same time discriminatori- ly prohibiting union solicitation or normal at work conversation among supporters of the Union, the Employer in this regard further encouraged company supporters among the employees to leave their work stations during work time for purposes of anti-union discussions with management and condoned and encouraged employees ' attendance at the same. The only evidence relating to this objection is bottomed in the testimony of Anice Michael and Patricia Dean. Michael testified that, a week before the election , she was counting certain production items when she overheard two fellow employees discussing the adverse working conditions which prevailed at a unionized plant in the vicinity Michael's attention to this conversation made her lose count on several occasions . About this time, Supervisor Lillia Turner approached and Michael complained about the employees' discussion and requested that Turner instruct them to be quiet . However, the conversation continued with Michael, herself, becoming a participant. Patricia Dean related that , about a month before the election, Supervisor Ruth Nutter summoned her to the office of Plant Manager Cass Rutkiewicz . Upon her arrival, Rutkiewicz told Dean that "he had gotten complaints from a girl that I had been soliciting and I had approached her to sign a union card during working hours and he asked me if this was true." Dean denied that she had engaged in this activity on company time, whereupon, Rutkiewicz stated "Well, Patricia, you know, if I catch you doing this it will cost you your job." Turning tol 23 See Superior Co., Inc, 94 NLRB 586, 587-88 METRO PANTS MFG. CO Nutter, Dean remarked, "Ruth, you know that I do not solicit on company time," to which Nutter replied, "Well, little girl, I don't know because I am not around you all the time " On the basis of the foregoing testimony, I am hard- pressed to understand how this evidence points up disparate treatment by Respondent in allowing antiunion employees to "talk it up" on company time while withholding this privilege from prounion workers. Michael's complaint to Supervisor Turner was not that she was refused permission to speak on behalf of the Union, but that she was distracted by a conversation which, for aught that appears on this record, might not have had particular relationship with the Union's campaign. Moreover, Michael, herself, joined in the conversation. Accordingly, I conclude that the evi- dence fails to establish that Respondent discriminatorily curbed mplant discussions by prounion employees while, at the same time, it permitted antiunion employees to engage in such conversations. I shall therefore overrule Objection 8.20 6. Winograd's speech of April 18 and the remarks attributed to "npervisors Arelia Sterling and Earnest Shifflett The complaint alleges that, on or about April 18, Respondent's President Winograd threatened to discharge employees at the Bridgewater plant and to close the plant in reprisal against its employees' union activities The pleadings further charge that, on the same date, Supervisor Sterling uttered the same warnings, and that, in May, Supervisor Shifflett threatened employees with loss of vacation benefits because of their union adherence This conduct is alleged to be objectionable by the Union in Objection 10, which recited that, "In captive audience speeches by the Employer on April 18th . . various threats of plant closing, loss of jobs and probability of strikes with attending hardships and loss of income were made." With respect to Winograd's conduct on April 18, Clara Myers testified on behalf of the General Counsel that she was on her lunch hour that day with 20 or 30 other employees when Winograd appeared in the plant. Gathering the girls around him Winograd "said about the old shoe place in Harrisonburg, about it closing down when the union was in there And then he went on and said `If you want to put your best friend out of a job, sign the union card."' On cross-examination, Myers acknowledged that it was very noisy in the plant at that time, that she was standing at the periphery of the assemblage when Winograd spoke, and that it was "Pretty hard to hear what was going on." Myers claimed that, during the 5 or 6 minutes she listened to Winograd, he did not state that the plant would continue to operate whether or not the Union won the election; did not state that the plant would close upon a union victory; did not remark that " The complaint contains an allegation that Rutkiewicz interrogated employees regarding their union activities and threatened them with reprisals for supporting the Union, which has apparent reference to his meeting with Dean In view of Respondent 's posted rule against solicitation :)n company time , either for or against the Union , I conclude Rutkiewicz was privileged to caution Dean, on pain of discharge , not to engage n this activity I shall therefore dismiss this allegation from the complaint 505 the employees possessed the right to vote any way they desired; and, did not respond to any question relating to a lawsuit in court if the employees signed a union card. According to Myers, all that she overheard was "About the shoe plant closing down and about the Union- if you want to put your close fnend out of a job, sign a Union card." Anice Michael testimonially related that, on April 18, Winograd walked into the plant while she was having lunch and she observed approximately 30 employees sur- round him and commence asking him questions. Approach- ing the group and standing 12 feet from Winograd, she overheard "someone ask Mr Winograd if the Union got in if the plant would close down and he said no, that it would not close down and there there was more talking and then I heard him say 'I want everyone to vote, vote one way or the other, but you must remember, if you vote yes, you could be voting you or one of your friends out of a job "' Michael further testified that she remained with the group for 12 minutes and that at no time during his visit did Winograd say anything about "if the employees signed a card they would be putting a friend out of a fob." Xie Shoemaker recalled Winograd's presence in the plant on April 18 and she noticed some 30 employees gather around him and pose questions. Shoemaker joined the assem- blage and, in the din created by the sewing machines, the blare of radios, and the conversations of employees, she "heard him ask them [the assembled employees] if they knew about the old shoe factory that used to be in Harrisonburg and he said they had a union in there and that they had to close down because of the union." However, Shoemaker admitted that she did not hear any of the questions which the girls asked Winograd and there- fore did not hear the question which preceded Winograd's statement regarding the "old shoe factory." Shirley Smith testified that, 2 or 3 days before the election, Winograd entered the plant and several employees gathered around him. A short time later, she joined the group and testified that "all I hear him say is `If you want to vote your friends out of a job, vote Union and if not, vote no union on election day "' Smith conceded that it was very noisy in the plant and that she was not standing very close to Winograd. Smith also admitted that this was the only statement she overheard. Various witnesses testified on behalf of Respondent con- cerning this episode Doris Atkins averred that Winograd visited the plant on or about April 18 and was barraged with questions by the employees who gathered around him Standing within 3 feet of Winograd, she heard an employee inquire "If the Union card was signed, would you be fired" and Winograd responded in the negative The employees then "asked if we would be able to keep on working like we had been and he said yes, that he was still the owner of the plant. That we would work like we had been." Atkins stated that Winograd made no statement that the employees would cause the discharge of their friends if they signed union authorization cards or voted for the Union. Rather, he explained that "We want you to vote regardless of how you vote. Whether 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you vote for the Union or whether you don't vote for the Union, we want you to vote because it is supposed to be confidential and no one is supposed to know how you vote" According to Atkins, one of the women in the group remarked that she remembered the old shoe factory and "How long it was closed and because of the Union and how it had threw them out of work for so long " However, Atkins could not recall Winograd's response. Nancy McCray stated that she was present at what was a question-and-answer session between Winograd and a number of employees. A few of the girls had approached him and proceeded to put questions to him. Some of the women had asked McCray whether they would be obligated to vote for the Union because they had executed authorization cards. McCray replied that she did not know, and relayed the inquiry to Winograd. In turn, Winograd "said that even if they did sign a union card, they did not have to vote for the Union and whichever way they voted would not be known." Another employee asked how her employment status would be affected if the Union won the election despite her opposition to collective repre- sentative Winograd's response was that "if the Union did come in it would not affect those that did not want a Union and even if the ones that voted for a Union and it didn't come in, it wouldn't affect their jobs or how they were treated either." McCray went on to state that she remembered that the subject of the "old shoe factory" was broached and that Winograd mentioned the shoe factory as an example "like if the Union got in, like maybe it brought up something, maybe something would eventually become of the Union and we'd have to close down, not because he wanted to close down. Not because he was forcing it to close. Anything can happen." Winograd, in the discussion, did not state that the Union would force Respondent to close down and he assured the girls that "you will still have your job" despite a Union victory at the polls. Finally, she denied hearing Winograd say that the girls would be placing the jobs of their friends in jeopardy if they signed a union card or voted for that organization. Paul Tusing testified that Winograd came to the plant on April 18 and engaged in a question-and-answer dialogue with employees who approached him. In response to a question, Winograd informed the employees that all were free to vote as they wished without fear of reprisals, and that "regardless of whether the Union got in or they didn't, they are still going to have work to do. The plant would still be going." Tusing further testified that he did not hear any discussion concerning the shoe factory, and that Winograd did not mention that employees would be risking the employment status of their friends by voting for the Union or signing a union card. Clyde Deviers related that, on April 18 when Winograd appeared at the plant, the girls crowded around him and began asking questions. Some of the women asked questions concerning their tenure if they signed authorization designa- tions or voted for the Union, and Winograd replied that "it would not make difference to anybody's job. The factory would continue to run the same, Union or nonunion " Deviers stated that the subject of the shoe factory was brought up by one of the employees, not Winograd, with the employee commenting "that the shoe factory would still be here if it hadn't been for the Union that struck " Finally, Deviers testified that Winograd did not tell the assembled employees that a vote for the Union or signing a card would adversely affect the employment security of their fellow employees. Several other employees who were called by Respondent testified in the same vein as Atkins, McCray, Tusing, and Deviers. When called to the stand, President Winograd narrated his version of the April 18 incident He had visited the plant on that day and, as he entered, several girls approached him and began to ask questions and before long between 20 and 50 employees gathered around him. One employee posed the question of whether she was required to vote for the Union if she executed an authoriza- tion card and whether the plant would be closed if it became unionized. Winograd "told them and told this to everybody that if they sign the union card or if they didn't sign the union card I hope that they would vote. Nobody would know how they voted since it was a secret ballot and it would be marked secretly. The only one that would know was they themselves who voted " Winograd added that "Whether the union comes in or whether the union does not come in, Metro Pants Company will continue on to run its business in a business manner." He staunchly denied telling the employees that they would adversely affect the jobs of their cohorts if they signed a card or cast a ballot for the Union. I credit the testimony of Winograd and that of the Respondent's supportive witnesses because I deem the testi- mony of the General Counsel's witnesses both implausible and confused. Thus, for example, Clara Myers claimed that, despite the noise in the plant which made it "Pretty hard to hear what was going on" and the fact that she was standing at a distance from Winograd, she nevertheless overheard him talk about the old shoe plant "about it closing down when the union was in there" and warn that "If you want to put your best friend out of a job, sign the union card," but did not hear Winograd state that Respondent's plant would continue to operate. Anice Michael, whose hearing also labored under raucous condi- tions in the plant, heard Winograd assure the employees that the plant would not shut its doors in the event of a union victory. Moreover, Michael asserted that Winograd told the girls that "if you vote yes, you could be voting you or one of your friends out of a job," and yet Michael was positive that Winograd did not state that "if the employees signed a card they would be putting a friend out of a job" as Myers claimed Furthermore, Michael made no mention in her testimony of any statements by Winograd regarding the shoe factory Xie Shoemaker, while stating that she heard Winograd say that the shoe factory "had a union in there and that they had to close down because of the union," admitted that she did not overhear the question posed by an employee which preceded this statement On the other hand, both Atkins and Deviers testified that the issue of the shoe factory was raised by an employee who remarked "How long it was closed and METRO PANTS MFG CO. because of the Union and how it had threw them out of work for so long" and that "the shoe factory would still be here if it hadn't been for the Union that struck." Moreover, in light of the uncontradicted testimony of Wino- grad and the other witnesses for Respondent that the Presi- dent assured them that no reprisals would be taken against anyone, whether a card signer or not, and that Respondent would continue to operate the plant regardless of the out- come of the election, I consider it unlikely if not implausible that Winograd threatened the employees with discharge if they voted for the Union or signed a union designation, or that Respondent would close the installation. Further- more, the testimony of all employee-witnesses on this phase of the case makes it clear that Winograd did not deliver a "speech" to a "captive audience" when he made his visit on April 18 At the very least, his dialogue with the employees resulted from a spontaneous desire on their part to put at rest by Winograd's answers the various questions which they had in mind concerning the union campaign and the forthcoming election. In sum , I conclude that the General Counsel has failed to carry his burden of proving that, on April 18, Winograd threatened to discharge employees for supporting the Union and to close the plant in reprisal against their union activities, and I shall therefore dismiss this allegation in the complaint. I shall also overrule Objection 10. I turn next to a consideration of the remarks of Supervisors Shifflett and Sterling. The only evidence regarding the alleged improprieties in Shifflett's conduct came from employee Eugene Lawson. The latter testified that, sometime prior to the election, Shifflett came to his work station and inquired "who did I think was going to win the election that was coming up and I told him I didn't know. It was going to be close." On another occasion before the balloting, Shifflett again approached Lawson and asked "how did I think the election was going to go and I told him I didn't ,now. I think it was going to be close and then he said something about betting me on it and I told him if he would give me the odds on the vote that he offered some Df them other people around there that I would take him. He offered them two to one edge on them [against he Union]." Lawson reported that he had a third conversa- ion with Shifflett before the election in which Shifflett ,said something about if the Union didn't get in we would probably get another weeks vacation " Concluding Lawson's estimony, he stated that he had worked with Shifflett or 16 years at the plant, that a strong friendship had leveloped between them, and that Lawson did not think here was anything unusual about his supervisor wanting o bet with him. Shifflett testified that he has placed several small bets vvith Lawson over the course of the years on a variety 3f events because of their close relationship. He denied hat he had ever asked Lawson how the latter intended o vote in the election, stating that he was aware from Lawson's remarks that the latter was 100 percent behind he Union Regarding the subject of vacations, Shifflett estified that he had received many inquiries from Lawson about such matters as possible wage increases and the Union's handbilling and, on one occasion, Lawson queried 507 "You think we'll get a two weeks vacation this year?" Shifflett replied "Lawson, you read the letter that the vacation schedule was being studied and maybe if the trouble hadn 't started you might have gotten it." Shifflett related that his response "was only my opinion" and he so informed his questioner Shifflett explained that , before the advent of the Union , the Respondent had taken under consideration a plan to enlarge the vacation period from 1 to 2 weeks and that, when he spoke to Lawson, he had in mind a letter which Respondent had distributed on April 20 which was entitled "Three Weeks Paid Vacation After One Year" and which is appended to the Regional Director's Report on Objections . In this letter, Respondent reported that This is the promise the union has been making. This they say they have in all their contracts . THIS IS A LIE. We have on file current Amalgamated contracts providing for much less. Metro management does not claim to be perfect but it does claim to be better than what the union offers. We have always been a leader in wages and benefits in our industry in this area Several years ago Metro decided to add a second week of paid vacation in December , but in discussions with employees it was felt that an extra week's pay and the opportunity to work during this week was the best because it gave everyone double pay at Christ- man when it was most needed We still feel this decision was right at the time it was made At the time the present union campaign was started 18 months ago the vacation policy was under study." The complaint alleges, as do the objections, that Shifflett unlawfully and objectionably interrogated employees con- cerning union sympathies, affiliations, and activities, and threatened employees with loss of vacation benefits if they supported the Union I am not convinced that these allega- tions have been sustained. Shifflett, by Lawson's own admis- sion , did not ask Lawson how the latter or his fellow employees felt about the Union or how he or they intended to vote in the election . Shifflett and Lawson had been friends of long standing and were accustomed to wager among themselves on many matters of chance for small sums. That Shifflett's inquiry regarding the outcome of the election was designed as an invitation to gamble on its outcome is evidence by Lawson 's willingness to place a bet if the "price was right " Under the circumstances, I am unable to conclude that Shifflett 's inquiry was either coercive in the Statutory sense or interfered with the results of the election With respect to Shifflett's utterances concerning vacation benefits, I credit Shifflett 's testimony that Lawson broached the subject and that his comments had reference to a letter which Respondent circulated to the employees shortly before their conversation wherein the company indicated that enlarged vacation periods had been under study at the time the Union commenced its organizational campaign. I deem Shifflett's testimony reasonable when he stated " There is no contention either by the General Counsel or the Union that the contents of this letter were illegal or objectionable 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he simply brought to Lawson's attention the contents of the letter and expressed his opinion the Respondent might have implemented a more generous plan which it had previously considered but that its hands were tied because of the Union's campaign Accordingly, I am not persuaded that Shifflett threatened Lawson that he would forfeit vacation benefits if he adhered to the Union. I shall therefore dismiss the complaint insofar as it charges Respondent with a violation of Section 8(a)(1) by Shifflett's conduct vis-a-vis Lawson and I shall overrule the pertinent objections in this connection Mildred Eavers testified that, about a week before the election, while she was having lunch with employee Florence Shepherd, the bell rang ending the lunch period and Shep- herd announced that she had better return to work. Supervi- sor Arelia Sterling, who was sitting nearby, thereupon stated "Yes, that she [Sterling] was going back to work because we probably wouldn't have work very long and she was glad that her car and furniture were paid for." However, Eavers affidavit given to a Board agent recites that Sterling actually said "we may not have any work soon." When summoned to the stand, Shepherd not only denied that she overheard Sterling make any comment about the availability of work but also denied that she even knew an employee named Eavers. Sterling also testimo- nially denied that she made any such remark as attributed to her by Eavers. Shepherd and Sterling impressed me as candid witnesses and I credit their testimony that Sterling did not tell Eavers either that "we probably wouldn't have work very long" or "we may not have any work soon." Moreover, even assuming arguendo that Sterling uttered these statements, I consider them, standing alone, too vague and ambiguous to be characterized as a threat "to discharge employees and to close respondent's plant in reprisal for activities of employees on behalf of the Union." as the General Counsel asserts in his complaint and the Union raises in its Objections. I shall therefore dismiss the aspect of the complaint relating to Sterling's utterances as well as the parallel objections to the election based upon this conduct. 7. The alleged promise by Plant Manager Cass Rutkiewicz of additional paid holidays for employees The complaint alleges that, on or about May 9, Plant Manager Cass Rutkiewicz promised the employees at the Harrisonburg plant additional paid holidays if they would vote against union representation. Objection 5 also charges as objectionable conduct that "The Employer made promises of pay increases, holidays and other benefits if the employees voted against the Union during the pre-election period." Mildred Juanita Nixon testified that, a month before the election, she and employee Hazel Hidecker, who sits directly behind Nixon, were busily working when Rutkiew- icz approached Nixon's station. Hidecker spoke up and asked him whether "we'd get Friday off after Memorial Day" which fell on the preceding Thursday. According to Nixon, Rutkiewicz replied "If the Union doesn't get in I will do my best [to] see that you do get off." Rutkiewicz, who had been the manager at Respondent's Harrisonburg plant, left Respondent's employ on some undisclosed date prior to the hearing and moved to El Paso, Texas Despite Respondent's efforts to summon his attendance as a witness, Rutkiewicz refused to appear at the trial in consequence of which Respondent produced Hidecker and Betty Jennings to testify about this incident. Hidecker averred that Rutkiewicz never mentioned the subject of the Union during his conversations with her and that Rutkiewicz did not at any time promise her an extra paid holiday if she cast her ballot against the Union. Betty Jennings, who worked directly behind Hideck- er, also denied on the stand that Rutkiewicz made any such promise. Nixon was not a dispassionate or disinterested witness Her daughter had been discharged by Respondent sometime prior to this incident and she was quick to admit that she was "quite unhappy over the fact" that Respondent had terminated her kin I therefore credit the testimony of Hidecker and Jennings and find that Rutkiewicz did not promise employees an extra paid holiday in the event they voted against the Union. Accordingly, I conclude that Respondent did not offend the provisions of Section 8(a)(1) by Rutkiewicz' conduct and I shall dismiss the complaint as it pertains to him. I shall also overrule Objec- tion 5 insofar as it alleges that he engaged in conduct which warrants setting the election aside. CONCLUSIONS OF LAW 1 Respondent in engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 The Respondent has not interfered with, restrained, or coerced its employees in violation of Section 8(a)(1) of the Act. 4. The Respondent has not engaged in pre-election con- duct which warrants setting aside the election conducted in Case 5-RC-6363. RECOMMENDED ORDER It is hereby ordered that complaint herein be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the objections filed in Case 5-RC-6363 which have been referred for decision herein be overruled and that the results of the election in the aforesaid case be certified.