Spartus Corp.

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spartus Corporation and International Union of Elec- trical, Radio and Machine Workers, AFL-CIO, CLC and its Local 664. Cases 26-CA-3879 and 26- RC-3895 January 27, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 16, 1971, Trial Examiner Jerry B. Stone issued the attached Decision in this proceeding. There- after, the Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed a brief in answer to General Counsel's exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order, as modified herein. 1. The Trial Examiner found, and we agree, that the Respondent, by conduct of its supervisors, engaged in coercive interrogation of employees in violation of Sec- tion 8(a)(1) of the Act. The Trial Examiner found no unlawful interrogation in Supervisor Bradford's inter- rogation of employee Young and Supervisor Robert- son's interrogation of employee Jackson. We disagree. Bradford asked Young what she would do if the Union "got in" and she was laid off. Robertson asked Jackson if she had been reading the Respondent's post- ers and signs and told her that she should pay attention to them. Thereafter, Robertson asked here whether she had paid any attention to the posters and signs and had given any more thought to the Union. It is clear that Bradford's question contained an implied threat of re- prisal and that Robertson's warning was designed to induce Jackson to reveal her views about the Union. In these circumstances, and in view of Respondent's ex- tensive antiunion campaign and against a background of other unlawful conduct, we find that this interroga- tion had a coercive effect upon the employees, and Respondent thereby violated Section 8(a)(1) of the Act. ' The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear prepon- derance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 195 NLRB No. 17 2. The record shows that Vice President Gold, in his speeches to employees after November 23 and 24, 1970, informed the employees that he had offers to move the plant. The Trial Examiner found, and our dissenting colleague agrees, that Gold also said that he was not going to move and therefore such statements did not exceed the permissible bounds of protected speech. We do not agree either with the Trial Examiner, or with our dissenting colleague's view, that there are logical problems in finding that a man who says he is not going to move is perhaps threatening that in fact he will move. The problem is not one of logic, but rather of analysis of context. We have been told, many years ago, that words are not pebbles in alien juxtaposition.' They take their meaning from their surroundings. Recall that Marc Antony said not once, but many times, that Brutus was an honorable man. Yet our dissenting col- league would, we think, join us in finding that Marc Antony was telling his audience that Brutus was not an honorable man. So much for logic. We are satisfied that the logical problems are far from insuperable. Concerning the context, we have held, in agreement with the Trial Examiner, that the general tenor of Re- spondent's campaign comes within the bounds of free speech. That does not mean, in our view, that we can disregard the Respondent's arguments in assessing the conduct now before us. The Respondent pointed not only to the violence that attends strikes in many cases, but also to the possibility of plant closing, and the actual closing of an RCA plant. Against that back- ground the Respondent then pointed out that it had offers to move its plant, but added that it had no present intention of moving. It is hard, in fact, impossible, for us to believe that Respondent was undercutting the entire thrust of its campaign by this one denial, or the employees would so consider it. We have found, in agreement with the Trial Examiner, that the Respond- ent did engage in various forms of coercive interroga- tion. The Respondent let the employees know, as it had every right to do, that it was opposed to the Union. Respondent's campaign material emphasized plant closings and removals in other union organizing situa- tions. Employees who read this material, as Respond- ent intended them to do, could hardly fail to under- stand that the Respondent was letting them know that it had the opportunity to move as a link in a chain indicating that what had happened elsewhere could happen here. Unless this were Respondent' s message, it was unnecessary for it to inform employees of an action that the Respondent did not intend to take. In- deed, the problems of logic, if any exist here, lie in construing Respondent's message so as to undercut one ' Learned Hand, speaking for the Second Circuit in NLR B v Feder- bush Company, Inc., 121 F.2d 954 SPARTUS CORPORATION 135 of the major props of its campaign. We would therefore hold, despite Gold's statement that he did not intend to move, that he did impliedly threaten to move if the Union were chosen, and that he thereby violated Sec- tion 8(a)(1) of the Act.3 3. The Trial Examiner found that the Respondent's exhibition of the film, "And Women Must Weep," on September 29, 1970, did not reveal a threat that strikes are inevitable because of employer action and therefore did not violate Section 8(a)(1) of the Act. We find merit in the General Counsel's contention that, in the context of this case, the exhibition of the film was a violation of Section 8(a)(1).' The record shows and we have found that the Re- spondent's supervisors committed numerous violations of Section 8(a)(1) of the Act, which included coercive interrogation of employees, warnings, and threats. In addition, the record shows that before Vice President Gold showed the film he told the assembled employees of the dangers of having a union come into the plant. The record also shows that the Respondent made clear its strong union animus in Gold's speeches, in literature distributed to the employees, and signs posted about the plant. In these circumstances, we find that the showing of the film constituted a clear threat of reprisal or force against the employees if they chose the Union as their bargaining representative. Accordingly, we find ' Chairman Miller would adopt all the Trial Examiner's conclusions re- garding the 8(a)(1) allegations. With respect to this alleged "threat," Gold said he would not move. The Chairman is of the view that where an em- ployer says he would not move , logic suggests that there are problems in finding that he is threatening to move. The Chairman believes the case of Marc Antony, cited by his colleagues, to be distinguishable Perhaps more, or at least certainly not less, in point is Tuberville v Savage, 1 Mod Rep. 3, 86 Eng Rep 684 (1669 ), familiar to all first-year law students In that case, the statement "if it were not assize-time, I would not take such lan- guage from you" was held not be an assault, since in fact, it was assize time The alleged "threat," as in this case, carried with its own negation . So much for venerable antiquity. As to the contextual framework, the evidence indicates to the Chairman that Gold's references to his refusals of offers to sell or move the plant were in the context of a speech in which he was attempting to show that he had a continuing personal interest in the success of the plant and the well-being of its employees, and thus attempting to persuade them that they did not need a union The references to the RCA closing occurred at a different time in the campaign and in a different context There were, so far as the record shows, designed to indicate that even though a long strike had produced increases in benefits, the fact that the employees had a union contract did not give them security against a plant shutdown caused by economic neces- sity Nowhere in this campaign material was there any indication that any company had, or could, close down in retaliation against a union, and nowhere did Gold threaten that he would do so The Chairman is of the view that his colleagues in reviewing the context have again strained , and indeed broken, and logical strand between the facts and their conclusions ' As indicated, Chairman Miller would adopt the Trial Examiner's finding His views are in conformity with'those of the various courts of appeals, including the Court of Appeals for the Fifth Circuit, the circuit in which this case arose Southwire Company v. N.L.R.B., 383 F 2d 235, 240-242 (C A 5), N.L R B. v. Hawthorn Company, 404 F 2d 1205, 1214 (C A. 8); Kellwood Co v NL R.B., 434 F 2d 1069, 1072-73 (C A 8), Luxuray of New York, Division of Beaunit Corporation v NL.R.B, 447 F 2d 112 (C A 2) He is of the view that free speech is not rendered unprotected by other improper conduct The other conduct may propeily be restrained , but the free speech may not that the Respondent, by the exhibition of the film, vi- olated Section 8(a)(1) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner, as modified below, and hereby or- ders that the Respondent, Spartus Corporation, Louis- ville, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's recommended Order, as herein modified. 1. Insert the following as paragraph 1(d): "(d) Threatening to move the plant if the employees select a union in an NLRB representation election." - 2. Reletter the present paragraph 1(d) as 1(e), and substitute "In any other manner" for "In any like man- ner." 3. Delete the number 2 from the sentence: "IT IS FURTHER RECOMMENDED that Objections 1, 2, 3, 6, 8, and 12 be overruled." 4. Substitute the attached notice for the Trial Ex- aminer's notice. IT IS FURTHER ORDERED that the election held in Case 26-RC-3895 on December 18, 1970, be, and it hereby is, set aside, and that the case be remanded to the Regional Director for Region 26 for the conduct of a second election. [Direction of Second Election' omitted from publica- tion.] ' The Board has consistently taken the position that the exhibition of this film against a background of demonstrated union animus is a violation of Sec 8(a)(1) of the Act See Southwire Company, 159 NLRB 394, 395, Hawthorn Company, 166 NLRB 251, Kellwood Company, Ottenheimer Division, supra, LuxurayofNew York, Division ofBeaunit Corporation, 185 NLRB No 15, Speed Queen, a Division ofMcGraw-Edison Co, 192 NLRB No 142. While the Court of Appeals for the Fifth Circuit has held the exhibition of the film protected speech under Sec 8(c) of the Act, it stated, "We begin by saying that whatever the case, the film is not an unfair labor practice unless it amounts to a threat of reprisal or force by Respondent against its employees or a promise of benefit " Southwire Company, supra, fn 1 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, NL.R.B v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 26 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concerning their or other employees ' union affiliation or activities or voting desires in an NLRB representation election in a manner constituting interference , restraint, or coer- cion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT instruct employees to conduct polls or interrogate fellow employees as to their union activi- ties, desires, and voting desires as regards an NLRB representation election. WE WILL NOT instruct employees to report back the results of interrogation and polls concerning other em- ployees' union activities, desires, and voting desires as regards the NLRB representation election. WE WILL NOT threaten to move the plant if the em- ployees select a union in an NLRB representation elec- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any and all such activities. SPARTUS CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901- 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner : This proceeding, under Sections 10(b) and 9 of the National Labor Relations Act, as amended, was tried pursuant to due notice on April 20, 21, 22, and 23, 1971, at Louisville, Mississippi. The charge and amended charge (Case 26-CA-3879) were filed on December 28, 1970, and February 5, 1971, respec- tively. The complaint in this matter was issued on February 11, 1971. The petition in Case 26-RC-3895 was filed on October 26, 1970. Thereafter, pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Regional Director for Region 26 of the National Labor Relations Board on November 23, 1970, an election by secret ballot was conducted in Case 26-RC-3895 on December 18, 1970, under the direction and supervision of said Regional Director. The tally of ballots, furnished the parties, reveals that a majority of the eligible voters cast their ballots against the Petitioner. Challenged ballots were not sufficient in num- ber to affect the results of the election. On December 28, 1970, the Petitioner filed timely objec- tions to conduct affecting the results of the election. After causing an investigation thereof, the said Regional Director issued and served on the parties his Report on Objections on February 3, 1971, and on February 4, 1971, an errata correct- ing said report in certain respects . In his report, as corrected, the Regional Director recommended to the Board that Peti- tioner's Objections 5, 7, that portion of 8 concerning Algie Howard, 10, 11, 13, and 15 be overruled. Having found that Objections 1, 2, 3, 4, 6, the remaining portion of 8, 9, 12, and 14 raised issues which would best be resolved on the basis of the record testimony, he recommended that Case 26-RC- 3895 be consolidated with Case 26-CA-3879, which involved the same issues, for the purpose of resolving the issues raised by said Objections on the basis of record testimony before a Trial Examiner. No exceptions having been timely filed to the Regional Director's report, as corrected, the Board (1) adopted the Regional Director's recommendations, (2) overruled Peti- tioner's Objections 5, 7, that portion of 8 concerning Algie Howard, 10, 11, 13, and 15, (3) ordered a hearing for the purpose of receiving evidence to resolve the issues raised by Petitioner's Objections 1, 2, 3, 4, 6, the remaining portion of 8, 9, 12, and 14, (4) ordered that such hearing might be consolidated with Case 26-CA-3879, (5) ordered in effect that the Trial Examiner designated for the purpose of con- ducting such hearing prepare and cause to be served on the parties a report containing resolutions of credibility of wit- nesses, findings of fact, and recommendations as to the dispo- sition of said Objections . The Board further adverted the parties to the Board's Rules and Regulations with respect to the filing of exceptions to such report . The Board further remanded the matter to the Regional Director for the pur- pose of arranging such hearing and authorized said Regional Director to issue notice thereof. Thereafter, the Regional Director for Region 26 duly consolidated Cases 26-CA-3879 and 26-RC-3895 for purpose of hearing, ruling, and decision by a Trial Examiner , provided thereafter for transference thereof and continuance before the Board, and set forth that the provisions of Sections 102.46 and 102.69(e) of the Board's Rules and Regulations should govern the filing of exceptions thereto The unfair labor practice issues are essentially whether Respondent has (1) violated Section 8(a)(1) of the Act by unlawful interrogation as to union activities or desires, by threats of reprisals or futility in selection of a union represent- ative, and other acts and (2) violated Section 8(a)(3) of the Act by discriminating in the award of overtime to three named employees. The objections concern essentially the same issues. At the hearing, the Charging Party withdrew one of the objections Objection 14. All parties were afforded full opportunity to participate in the proceeding , and the General Counsel, Charging Party, SPARTUS CORPORATION 137 and Respondent all filed briefs which have been considered.' Upon the entire record in the case and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER' Spartus Corporation, the Respondent, is now, and has been at all times material herein, a corporation with a plant and place of business located at Louisville, Mississippi, where it is engaged in the manufacture and sale of clocks. During the 12 months preceding February 11, 1971, Re- spondent, in the course and conduct of its business opera- tions, sold and shipped products valued in excess of $50,000 directly to points located outside the State of Mississippi, and during the same period Respondent purchased and received at its Louisville, Mississippi, location materials and supplies valued in excess of $50,000 directly from points outside the State of Mississippi. Based on the foregoing, and as conceded by the Respond- ent (Employer), it is concluded and found that the Respond- ent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED3 International Union of Electrical , Radio and Machine Workers, AFL-CIO, CLC and its Local 664, are, and have been at all times material herein , labor organizations within the meaning of Section 2(5) of the Act. It is so concluded and found. III THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION A. Preliminary Issues Supervisor Status' At all times material herein, the following named persons occupied the positions set opposite their names and have been, and are now, agents of Respondent at its Louisville, Mississippi, location, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act: Allan Gold-vice president Jack Pendergast-plant superintendent Martha Daly-personnel manager Thomas Bradford-supervisor Helen Goodin-supervisor Respondent in his brief moved to correct the transcript at p 792, 1. 1 The General Counsel opposed this motion. I have had the official reporter check her records with respect to this testimony The official reporter has reported that the written transcript is in error as contended by the Respond- ent The official reporter has been advised to issue an errata in such regard, and the motion to correct the transcript is hereby granted The Respondent also moved by motion at a later date to reopen the record for receipt of evidence as to correctness of the transcript and for receipt of certain other evidence The other evidence sought to be adduced is not shown to be newly discovered or to have been unavailable at time of trial Considering all of the foregoing, Respondent's motion, opposed by the General Counsel, is denied The facts are based on the pleadings and admissions therein The facts are based on the pleadings and admissions therein The facts are based on the pleadings, admissions therein, and stipula- tions by the parties The Respondent admits "supervisory" status of the named individuals but denies in effect that they were agents of Respondent As "supervisors" the persons set forth are "agents" within the meaning of the Act for the conduct found to have been engaged in by them in this case. Harry Kwasniewski-supervisor Ruby Robertson-assistant supervisor Don Kemp-foreman B. Alleged Conduct of Thomas Bradford The General Counsel in his complaint alleged that Re- spondent, by its supervisor and agent, Thomas Bradford, on or about December 4 and 15, 1970, at its Louisville, Missis- sippi, plant, engaged in the following acts and conduct: (1) Interrogated employees as to how they felt about the Union. (2) Interro*ated an employee as to what she would do if the Union came in and the plant went on strike. (3) Instructed employees to interrogate and poll each em- ployee individually as to whether they wanted the Union or not and to report the results back to him. 1. Interrogation of Mosley The General Counsel contends and, through witness Mos- le elicited testimony to the effect that several weeks prior to K election on December 18, 1970, Supervisor Bradford spoke to employees at his desk about the mechanics of mak- ing a proper ballot and asked Mosley in effect who he was going to vote for. Bradford in his testimony denied engaging in the alleged interrogation of Mosely. Bradford testified con- cerning speaking to employees about how to mark a proper ballot. Bradford also testified to a conversation with Mosley wherein Mosley told Bradford in effect that Mosley wanted to be neutral. Mosley in a pretrial affidavit specifically set forth that Bradford did not ask questions as to whether the employees were going to vote for the Union during the con- versation concerning how to mark the ballots. I am convinced that Mosley's testimony is a confused and inaccurate recollec- tion of what actually occurred, and I discredit his testimony as to the alleged interrogation of how he was going to vote. I credit Bradford's denial of the alleged interrogation of Mos- ley. 2. Interrogation of Norton Handsol Norton's credited and uncontradicted testimony reveals that on the Wednesday before the election (December 18, 1971) Supervisor Bradford asked him why he was wearing a union button. Norton told Bradford that he was wearing the button to better himself. Although it is clear that Supervisor Bradford asked a ques- tion relating to Norton's union activities and desires, the total circumstances do not reveal that such questioning was of a type to interfere, restrain, or coerce employees in the exercise of Section 7 rights. Norton's union interests were clearly shown by the wearing of the button. Within the purview of Respondent's right to set forth its views and arguments relat- ing to unionism, the question at most served as a means to open a discussion on viewpoints. Accordingly, such interro- gation does not constitute conduct violative of Section 8(a)(1) of the Act. 3. Interrogation of Aliceteen Young In support of the allegation that Respondent "Interrogated an employee as to what she would do if the Union came in and the plant went on strike," the General Counsel appar- ently presented the testimony of Aliceteen Young. Young credibly testified to the effect that Supervisor Bradford asked her what she would do if the Union "got in" and she were laid off. This testimony in no way inquires as to employee desire or intent with respect to striking or union activity. It is clear that this evidence is insufficient to support the com- 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint allegation and that such evidence is insufficient to re- veal conduct violative of Section 8(a)(1) of the Act. 4. Instructions to poll and interrogate' I credit the composite testimony of Mosley and Ethel Young to the effect that Supervisor Bradford, a week before the December 18, 1970, NLRB elections, (1) told Mosley to go around and ask employees how they were going to vote in the NLRB election and to report back and (2) told Young to take a pad of paper and to ask employees how they were going to vote in the NLRB election and to report back. Considering all of the foregoing, I conclude and find that Respondent, by Bradford, as alleged, on or about December 15, 1970, instructed employees to interrogate and poll other employees as to whether they wanted the Union or not and to report the results back to him. Such conduct is violative of Section 8(a)(1) of the Act. C. Alleged Interrogation by Ruby Robertson The General Counsel in his complaint alleged that Re- spondent, by its supervisor and agent, Ruby Robertson, dur- ing the last part of November 1970, the exact date being unknown, and on or about December 4, 1970, at its Louis- ville, Mississippi, plant, interrogated an employee concerning her union membership, activities, and desires. The facts may be summarized as follows.' Toward the last of November 1970, Supervisor Robertson spoke to employee Luedan Jackson. Robertson asked Jackson if she had been reading the posters and signs and told her that she should pay attention to the posters and signs. Luedan Jackson told Supervisor Robertson that she would do so. Two weeks later Supervisor Robertson again brought up the question of whether Jackson had paid any attention to the posters and signs . Robertson, in such respects, asked if Jack- son had given any more thought to the Union. Jackson told Robertson that she had prayed over it and would pray over it. During the discussion Robertson related that unions caused strikes. Considering all of the foregoing, I conclude and find that the interrogation by Robertson of Jackson, on the two occa- sions, did not constitute interrogation which unlawfully probed as to union activities or desires. Thus, it may be said that the questions did not go beyond the area of preliminary and lawful inquiry. Certainly an inquiry as to whether an employee has read some of the company posters and signs does not unlawfully probe into the employees' union activities or desires. Nor does the question as to whether an employee has given more thought to the union situation probe into union activities or desires. Accordingly, it is concluded and found that such conduct does not constitute conduct violative of Section 8(a)(1) of the Act. D. Alleged Conduct of Don Kemp The General Counsel in his complaint alleged that Re- spondent, by its supervisor and agent, Don Kemp, on or about December 4 and December 16, 1970, at its Louisville, Mississippi, plant, engaged in the following acts and conduct: (a) interrogated an employee about the identity of a union organizer and the employee's desires concerning the Union coming into the plant and (b) threatened an employee by ' The facts are based on a composite of the credited testimony of Mosley and Ethel Young I discredit the testimony of Bradford inconsistent with the facts found The credibility resolution made herein is based on composite considerations of demeanor and logical consistency of facts ' The facts are based on Luedan Jackson's credited testimony telling her he knew she would vote right; if she did not, there would not be any bread on the table. The witnesses to the above issues were Lily B. Austin and Supervisor Kemp. The issue essentially is one of credibility. Although the demeanor appearances of the witnesses were substantially similar, I am persuaded that Austin appeared more forthright, truthful, and complete in her testimony then did Kemp in his. Considering this and the logical consistency of all the facts, I credit her testimony in general and especially with respect to the areas of conflict between her testimony and that of Kemp. Accordingly, the facts, from a composite of the credited testimony of the witnesses, are as follows. Two weeks before the NLRB election on December 18, 1970, Supervisor Kemp approached Austin at work between midnight and 5 a.m., told her he wanted to know who the union man was, told her that he had asked Farris Hopkins, and asked if she knew who the union man was. Kemp also asked Austin what she thought about the Union coming in. Kemp told Austin that he thought things were fine. On December 16, 1970, Kemp approached Austin at her machine and told her that he knew she was going to vote right; if not, there would be no bread on the table for Sherman (her husband). Kemp told Austin that because she rode with "Betty" she did not have to worry; no one would know how she voted. Considering the foregoing, I conclude and find that Re- spondent, by Kemp, as alleged, engaged in coercive interroga- tion as to employee union activities and desires and threat- ened reprisals to such employee if she did not vote right in the NLRB-scheduled election. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found. E. Alleged Conduct of Helen Goodin The General Counsel in his complaint alleges that Re- spondent, by its supervisor and agent, Helen Goodin, on or about the dates listed below, at its Louisville, Mississippi, plant, engaged in the following acts and conduct: (a) On or about December 1, 1970, interrogated an em- ployee as to how she was going to vote. (b) On or about December 14, 1970, interrogated an em- ployee as to who had persuaded her to wear the union button. (c) On or about December 14, 1970, interrogated an em- ployee as to why she was wearing a union button. (d) On or about December 14, 1970, interrogated an em- ployee as to why she wanted to wear a union button. (e) On or about December 14, 1970, threatened an em- ployee that it would be futile to select a union as collective- bargaining representative because a union could not give the employees any money, only Respondent could do that. (f) On or about December 14, 1970, asked an employee if she would wear a "vote no" button. 1. Interrogation-December 1, 1970 It appears that the testimony of witness Lee was offered by the General Counsel to establish the allegation, (a) above, as to interrogation on December 1, 1970. First it should be noted that Lee's ability to place the event timewise is insuffi- cient to establish that the event occurred on or around December 1, 1970, or within the objection time period (Octo- ber 26, 1970, to December 18, 1970). On direct examination, Lee's testimony was to the effect that she overheard Super- visor Goodin ask employee Prysock "how she was going to vote " On cross-examination, Lee's testimony was to the effect that Goodin asked Prysock whether Prysock had made up her mind as to how she was going to vote. I am persuaded that Lee's direct testimony was conclusionary in nature, was what Lee thought was meant, and was not what was said. SPARTUS CORPORATION Accordingly, the evidence falls to establish the facts as al- leged. Further, the evidence is insufficient to establish objec- tionable conduct thereto as related to the representation case issues.' 2. Events of December 14, 1970: Goodin's conversation with Hathoren Hathoren and Goodin testified concerning a conversation that Goodin had with Hathoren on December 14, 1970. Ha- thoren's version of the events, if believed, would establish Respondent's conduct violative of Section 8(a)(1). Goodin's version of the events, if believed, reveals nonviolative con- duct. Considering the demeanor of the two witnesses and their appearances as to objectiveness and reliability, I find Goodin to appear to be the more truthful, objective, and reliable witness. I credit Goodin's testimony as to the facts concerning the events of December 14, 1970, and the conver- sation she had with Hathoren. I discredit Hathoren's tes- timony inconsistent with the facts found. The facts as to the conversation between Goodin and Hathoren on December 14, 1970, are revealed by the following excerpts from Goo- din's credited testimony: Q. [By Mr. Banta] All right. Do you recall any conver- sation with Margaret Hathoren about a union button? A. Yes. Q. When did this conversation take place? A. On Monday before the election. Q. Do you remember where the conversation took place? A. It was at her work station. Q. Do you remember what time it was? A. It was around 10:00 o'clock. It was after we had already been on break. Q. Was anyone else present? A. No. Q. What was said in the conversation? A. I walked up to her, and I said, "Margaret", and when I called her name, she interrupted me, and she said, "Helen, I know you are wondering why I am wear- ing this union button". And I said, "Margaret, that is your own privilege". And she said, "I think we need a union". She said, "We need to have a voice in what is going on". And I said to her, "Margaret, there is one thing I want you to remember, that Mr. Gold is the boss, and Mr. Gold is going to be the boss whether there is a union or not, and that Mr. Gold is the one that signs our pay checks" Considering all of the foregoing, I conclude and find the facts do not reveal that Supervisor Goodin engaged in con- duct in such conversation violative of Section 8(a)(1) of the Act. ' It is noted that the unfair labor practice pleadings in this case were specific and alluded to the interrogation of an employee by Goodin The Objections raise more general issues therto Witness Gregory testified to the effect that in December 1970, before the election on December 18, 1970, Supervisor Goodin questioned her as to how she was going to vote Cross- examination of Gregory revealed that, instead of interrogation , Goodin expressed hope that Gregory was thinking of how she was going to vote Goodin's credited testimony was to a simi:ar effect that she spoke about the seriousness of the election and that Gregory should give serious thought to her vote The facts relating to Goodin's talk with Gregory reveal neither conduct violative of Section 8(a)(1) of the Act nor conduct that interferred with the NLRB election held on December 18, 1970 139 3. Events of December 15, 1970: Goodin-Manning conversation During the week of the NLRB election (on December 18), Supervisor Goodin and employee Manning had a conversa- tion about "vote no" buttons. The testimony of witnesses Goodin and Manning as to the event of such conversation is in conflict. Considering the two witnesses, their demeanor, and the testing of their testimony on cross-examination, I find Goodin to appear to be the more objective, truthful, and reliable witness. I credit Goodin's testimony as to the events and discredit Manning's testimony inconsistent therewith. What occurred is revealed by the following credited ex- cerpts of Goodin's testimony: Q. Did you ever talk to Shirley Manning about a "vote no" button? A. Yes, sir. Q. When did you have a conversation with her about a "vote no" button? A. It was on Tuesday before the election in the after- noon. Q. Do you remember when this conversation took place? A. It was at her work station. Q. Was anybody else around? A. No, sir. Q. Would you tell us what happened in the conversa- tion? A. I walked up to Shirley, and I said, "Shirley, it would look good if you wore a "vote no" button." I said, "You are a lead girl and you are supposed to be setting an example, and that I believe the inspectors that work under you would wear a vote no button if you would." Q. Did Shirley Manning say anything? A. Yes. She said, "Why aren't you wearing a button", and I said, "Well, believe me, Shirley, if I could vote, I would wear a button". And she said, "I am going to vote no, but I am not going to wear a button". And I said, "Well, that's fine, Shirley". I said, "You will have to make that decision for yourself'. Q. Do you recall anything else in that conversation? A. No, sir Q. Did you have any other conversations with Shirley Manning about a "vote no" button? A. No, sir. Considering all of the foregoing, I conclude and find, as alleged, that Respondent, by Goodin, spoke coercively to an employee about wearing a "vote no" button. Such conduct is violative of Section 8(a)(1) of the Act. It is so concluded and found ' F. The Film "And Women Must Weep" The General Counsel in his complaint alleges that Re- spondent, on or about September 29, 1970, at its Louisville, Mississippi, plant, coerced, intimidated, and threatened its employees by showing them the film "And Women Must Weep." The Respondent admits the allegation with respect to the showing of the film to employees, but denies that the film coerced, intimidated, or threatened employees. Suffice it to say that the totality of the credited testimony reveals Goo- din's open support of the use of the "vote no" buttons I credit the testimony of witnesses to such effect and discredit all contrary testimony of other witnesses 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties stipulated to the effect that the film was the same film as involved in a number of Board and court deci- sions. The parties agreed that the Trial Examiner could take official notice of the film in such records. Despite some dialogue by counsel at the hearing to the effect that the Board had already litigated the issue of whether the film constituted conduct violative of Section 8(a)(1) of the Act, it cannot be said that the litigation of the issue in certain representation cases resolves the issue herein. Nor can it be said that the litigation of an 8(a)(1) issue as regards the film in the unfair labor practice cases referred to resolves the issues herein. The Board's finding of 8(a)(1) con- duct with respect to the film in the cases cited was not a finding of a per se nature but was a finding of an 8(a)(1) violation under all of the circumstances. Thus, the film itself has to be evaluated in the context of all of the surrounding facts. Suffice it to say, I have viewed the film itself and have read the factual description of the film as related in the Board and court cases concerning the film and cited to me.' The film may be said to be designed to appeal to emotions based on persua- sion as to morality, violence, strikes, and irresponsibility of a union. The film does not purport to be telling the viewer that the Union involved in this proceeding has engaged in the conduct set forth in the "film." It is designed to raise the speculation that the selection of a union creates the possibility of the dire consequences involved. In and of itself, the film does not reveal that any of the dire consequences set forth in the film flowed from actions of the employer referred to therein, nor can it be interpreted that the dire consequences involved would flow from employer action. As I view the situation, for the film to be violative of Section 8(a)(1) of the Act, the surrounding circumstances as revealed by other facts must add meaning to the film and reveal a threat that strikes are inevitable because of employer action. The other facts in this case do not so reveal. Accordingly, I conclude and find.that the Respondent, by the showing of the film on September 29, 1970, did not engage in the coercive conduct violative of Section 8(a)(1) of the Act.10 G. Alleged Threats in Campaign Material The General Counsel alleges in his complaint that Re- spondent, in literature distributed at its Louisville, Missis- sippi, plant, and through the mail to its employees during the period from on or about October 9, 1970, to on or about December 17, 1970; in a phonograph record mailed to em- ployees on or about December 11, 1970; and through signs posted at the Employer's plant from on or about October 9, 1970, to on or about December 18, 1970, coerced its em- ployees by warning them of: (a) The inevitability of strikes with the dire consequences which would follow if they selected the Union to represent them, including violence, loss of benefits, suffering, loss of job security, and no unemployment compensation. (b) The futility of selecting the Union to represent them. The evidence in the record concerning the above issues consisted of testimony of witnesses as to signs, written litera- ture, and the literature mailed to employees, and a written document reflecting the phonograph record mailed to em- ' I would note that the factual description of the film set forth in the opinion of the Fifth Circuit Court of Appeals in South wire Co. v NL R B. 383 F 2d 235 (1967), reflects a good factual summary of the film. I adopt and incorporate such factual summary into this Decision. 10 The showing of the film on September 29, 1970, was prior to the filing of the petition for representation determination filed on October 26, 1970, in Case 26-RC-3395, and prior to election therein on December 18, 1970 The "film" issue is not a part of the objection issue in 26-RC-3395. ployees. I have reviewed all of the evidence submitted on these issues. It suffices to say that the evidence reveals strong electioneering statements. In my opinion, the evidence does not reveal that Respondent, by such literature, phonograph records, or signs, exceeded the permissible bounds of election- eering. The evidence does not reveal that strikes are inevitable because of Respondent's actions, nor does it reveal that it is Respondent's action which would cause any futility in selec- tion of the Union. Considering all of the facts," I conclude and find that Respondent, by the mailing of literature and records to em- ployees and by the posting of signs, has not, as alleged, vi- olated Section 8(a)(1) of the Act. Nor has Respondent by such conduct engaged in objectionable conduct with respect to the NLRB election held on December 18, 1971. H. Alleged Warnings and Threats in Allan Gold's Speeches The General Counsel in his complaint alleges Respondent, by its supervisor and agent, Allan Gold, at its Louisville, Mississippi, plant, in speeches to employees on or about November 23 and 24 and December 15, 16, and 17, 1970, and at various meetings with employees from on or about Novem- ber 30, 1970, to on or about December 14, 1970, engaged in the following acts and conduct: (a) Warned its employees of the inevitability of strikes if the Union was selected as collective-bargaining representative. (b) Warned its employees of the futility of selecting the Union as their collective-bargaining representative because the Respondent would not negotiate with the Union. (c) Threatened its employees that the plant would be moved if the Union was voted in. Speeches of November 23 and 24, 197012 Gold, in his testimony, at one place identified the "exhibit" as the "original" or "bona fide" copy. I find the question to be an extremely close one as to whether the "exhibit" in the record (as the "prepared written" speech) was the same as the speech delivered. I am persuaded however, from Gold's truthful demeanor that the speeches he delivered are repre- sented by Respondent's Exhibit 11, and I am also persuaded by his truthful demeanor that his testimony should be cred- ited that he did not threaten employees that the Respondent would not negotiate with the Union. Despite the fact that Gold appeared to be a truthful witness in general, I found it to be disturbing that he testified as if he had no independent recollection of his speeches and wanted to rely on answers to " I incorporate by reference herein the specific exhibits relating to the literature mailed to employees, the phonograph record involved, and the specific excerpts of witnesses ' testimony as to the signs posted by the Re- spondent I am persuaded that inclusion in this Decision, otherwise, of such facts is not warranted. " The facts as to the speeches of November 23 and 24, 1970, are based on the credited testimony of Gold. Various General Counsel witnesses testified to the effect that Gold made speeches to a large number of em- ployees toward the last of November 1970 Essentially, most of the General Counsel's witnesses who testified to such speeches testified in a conclusion- ary matter Gold testified to the effect that he delivered the speeches from a written prepared speech and did not add to or delete as to substance. Respondent presented two witnesses who allegedly read (to themselves) and followed along from copies of the same speech as Gold spoke However, the total testimony of the "corroborative " witnesses was presented in such a way as to be completely unreliable as corroborative evidence Thus, such witnesses, while on the stand, either virtually did not look at the exhibit purporting to be the speech or looked at it so rapidly as to negate any idea of actual "knowledge" that it was the same speech. Further, the exhibit shown such witnesses was not the "copy" used by them-and allegedly signed by them. SPARTUS CORPORATION 141 the effect that whatever he said was in the written speech. Considering all of the facts, however, I find Gold's testimony as to the speeches more reliable than other witnesses' and credit his testimony to the effect that Respondent's Exhibit 11 reflected the substance of his speeches except for state- ments immaterial herein. It suffices to say that an examination of the prepared speech used by Gold reveals that he did not exceed the bounds of permissible conduct. The speech as a whole, while emphasiz- ing the possibility of strikes, in and of itself, or in context with all other facts in this case, does not reveal a threat of "inevita- bility" of strikes if the Union were selected as collective- bargaining representative of its employees, nor does it reveal a warning that the Respondent would not negotiate with the Union. The facts also reveal that Gold made other speeches to smaller groups of employees after the November 23 and 24, 1970, speeches. Suffice it to say these speeches were about strikes, about certain plants that had moved, and about offers to him for moving, but he was not going to move. It suffices to say that I do not find such speeches to exceed permissible bounds. Considering all the foregoing, I conclude and find that Respondent has not violated Section 8(a)(1) of the Act, by speeches, as alleged. 1. Alleged Coercion and Intimidation Concerning Work During Meetings The General Counsel alleges in his complaint that Re- spondent, from on or about November 30, 1970, to on or about December 16, 1970, coerced and intimidated its em- ployees by requiring employees who were members of the Union's organizing committee or who had engaged in union activities to work while other employees attended general meetings conducted by Respondent concerning the union election. The facts" reveal that, at one of the speeches given by Gold on November 23, 1970, some of the employees fainted or appeared to faint, that there was some coughing and some feet shuffling, and that, at the end of the speech, union sup- porter Reetha Ryals asked if the Union couldn't have equal time.14 Thereafter, the Respondent, as a matter of policy, excluded known union adherents from attendance at its antiunion cam- paign speeches. Instead, such employees were required to work at their regular job or at some other job that was needed. There is no evidence to show that any of the work assigned to employees on such occasion was more arduous or harder than such employees' normal duties. The issue as to the foregoing facts concerns whether the Respondent violated Section 8(a)(1) of the Act. As I see it, motivation is largely irrelevant on this issue. However, the following is noted. Gold testified to the effect about the "dis- ruption" and "feet shuffling" at the November 23, 1970, speech, and he exhibited obvious displeasure at the "cough- ing" during that speech. Further, Gold referred to Reetha Ryals' request on November 23, 1970, for "equal time" for the Union. The Respondent clearly showed motivation to eliminate disruption and not to give union adherents access to its arguments. This is shown by the fact that around that time Respondent also ceased sending campaign literature to known union adherents. Gold in his testimony attempted to build his case too strongly. Thus, Gold testified that he only " The facts are not in dispute and are based on a composite of the credited aspects of all the testimony in the record " ° Several minor aspects of the facts are set forth in the discussion follow- ing herein wanted to talk to those who had not made up their minds. Despite this, the the facts are clear that those who had ap- peared to have decided against the Union were allowed to attend the speeches. Considering all of the foregoing, I am persuaded that the totality of the facts does not reveal that Respondent inter- fered with, restrained, or coerced employees by its actions in excluding known union adherents from its antiunion cam- paign speeches. At most, what is involved would constitute a tenuous academic argument as to alleged interference, re- straint, or coercion. Considering all of the foregoing, I conclude and find that the General Counsel has not established that Respondent has violated Section 8(a)(1) of the Act by the "exclusion" of known union adherents from antiunion campaign speeches." Accordingly, it will be recommended that allegations in the complaint, in such regard, be dismissed. J. Alleged Coercion Concerning Selection of Employees for Overtime Work The General Counsel alleges in his complaint that Re- spondent, by its supervisor and agent, Helen Goodin, on or about December 7, 1970, coerced and intimidated its em- ployees by failing to ask union organizing committee mem- bers or employees who engaged in union activities if they would work extra hours during the holiday vacation when the plant was closed while giving other employees the oppor- tunity to work such additional hours. The Facts16 On or about December 7, 1970, Supervisor Goodin went around and asked some of her employees if they would work during the holiday vacation time when the plant was closed. In making her rounds, Goodin bypassed and did not ask employees who were wearing union buttons as to whether they desired such work. The next morning a number of employees wearing union buttons confronted Goodin and questioned her about her failure to ask them about such work . Goodin gave her expla- nation of the basis of selection of those employees she asked about such work . It suffices to say that Goodin 's explanation did not appear to hold water. Later Goodin came back around with a complete list of employees and asked each and every employee under her as to whether, if they were asked to work during vacation time, they would do so." It is undisputed that the actual assign- ment of overtime work during the vacation period was on a nondiscriminatory basis. Considering all of the foregoing, I conclude and find that Respondent, by Goodin, on her initial survey of employees for work during the holiday vacation time , coerced and in- timidated employees by obviously avoiding inclusion of em- ployees who wore union buttons in the survey . Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find.1s See Luxuray of New York, 185 NLRB No 15 The facts are based on a composite of the credited aspects of the testimony of Mobley, Bonnie R Ryals, and Goodin " Other testimony alluded to Goodin having received such instructions from her superiors prior to her first survey Suffice it to say, I do not credit such testimony It appears unreasonable to believe that, had she been follow- ing such instructions earlier, she would have asked some of the employees for a second time about the vacation time 1° The fact that a later proper survey was made and that work assignment therefrom was not discriminatory does not negate the message of hostility and discriminatory attitude expressed in the initial survey 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD K. The Overtime Discrimination Issue The General Counsel in his complaint alleges in effect that Respondent discriminatorily denied overtime work to em- ployees Mary Baker, Ethel Green, and Patsy Womble from October 3, 1970, to on or about December 26, 1970. The General Counsel contends in effect that Ethel Green and Patsy Womble wore union buttons on October 2, 1970, and that Respondent knew that Mary Baker was an active union supporter as of October 3, 1970. The General Counsel con- tends in effect that in the distribution of overtime on various Saturdays, October 3, 10, 17, 24, 31, November 7, 21, and December 5, 1970, Respondent discriminated by not giving overtime work to the three above-named employees. The Respondent denies that it discriminated in the selec- tion of employees for overtime work. The Respondent con- tends that it did not consider the union activities or desires of the above-named employees in selection or nonselection of employees for overtime work. The Respondent contends that its policy is to select the best employee to do the work best. The evidence relating to Respondent's policy and past practice of overtime work assignment is limited to the tes- timony of General Counsel witnesses Baker, Green, and Womble and Respondent witness Robertson. No records as to overtime work prior to October 3, 1970, were offered by either side. There is no basis for comparison of such records therefor with records offered as to overtime work after October 3, 1970. General Counsel offered evidence as to certain employees who worked on the various Saturdays set forth above. These records, however, contained the names and hours of some employees who worked on the second shift and thus who were merely completing their regular hours on Saturday. The General Counsel's Exhibits 7-11 in this regard did not purport to be complete and in fact are revealed not to be complete when compared with Respondent's Exhibit 12 covering assembly line 1. On the other hand, Respondent's Exhibit 12 reveals itself to be inaccurate as to the overtime employment of Louise Moorehead on October 3, 1970. During the alleged discriminatory period, it may be said that Respondent made assignment of overtime work for (1) line assembly work and (2) subassembly work. 1. Line assembly work The Respondent has up to six assembly lines in department 15. Involved in this proceeding are overtime work assign- ments as regards assembly lines 1 and 2. The three alleged discriminatees worked on assembly line 1. The overtime work assignments of line assembly work in the alleged discrimina- tory period occurred on October 3 and 17, 1970. Assembly line 1, in terms of designation of employee com- plement, includes some 17 employees. The physical place setup where line 1 works is larger than the physical place setup of the other lines. Assembly lines, other than line 1, normally include less than 17 employees. The Respondent produces three chime-type clocks, includ- ing clock No. 930, which necessitate the usage of 17 em- ployees. The physical setup of the lines makes it more conven- ient for the production of the chime-type clocks on assembly line I than on the other assembly lines. Generally assembly line 1 is more experienced on the production of chime-type clocks than the other lines. Other assembly lines can and do, however, produce the chime-type clock. The Respondent's practice and policy in the assignment of overtime work to assembly lines, as revelant to the issues in this case, is as follows. If an assembly line is producing a certain type of clock, and no other line is engaged in similar production, such line is assigned overtime work if needed for such clock. Alleged discriminatees (Green, Baker, and Womble) had all performed overtime line assembly work in past years. Such overtime line assembly work in 1968 and 1969 had been performed at times during the regular workweek (before and after normal work hours) and on Saturdays. The "overtime" season normally runs from around Sep- tember to Christmas. The Respondent appears to have only utilized overtime line assembly work on Saturdays in the 1970 season. From late August or early Setpember 1970, employees Green, Baker, and Womble were utilized for over- time work on Saturday on several occasions. Green testified to the effect that in 1970 she had worked four Saturdays on overtime work, that she had worked one or two times on overtime assembly line work, and that she had done some subassembly work on Saturdays. Womble testified to the effect that she had performed overtime assem- bly line work on Saturdays and that she believed that she had worked three to four Saturdays on overtime line assembly work. Baker testified to the effect that she had worked four or five times on overtime work on Saturdays and that some of the work was on line assembly and some on subassembly. As indicated, the record is barren of record-type evidence on this issue. From observation of the witnesses as they tes- tified, I am persuaded that the witnesses may not have deli- neated the times of work accurately prior to October 2, 1970. The testimony does not reveal precisely the number of times that assembly line I ran on Saturdays in 1970 prior to Octo- ber 3, 1970. None of the witnesses appeared to have a precise knowledge as to the times that line assembly overtime work occurred. Thus, Womble in her testimony revealed a doubt as to the accuracy of information and expressed a "belief' as to three to four times. Baker testified to working overtime four to five times before October 2, 1970. Her other testimony revealed that she clearly was off on one of the Saturdays between the last of August and October 3, 1970. Green was sure and unsure of the number of times involved. It appears that line 1 may have worked on two Saturdays on overtime line assembly work between late August and October 3, 1970. On October 2, 1970, employees Green and Womble wore union buttons to work. According to Green's credited tes- timony, there were about five other employees in her depart- ment wearing union buttons about this time. Who they were and the amount of overtime work they may or may not have had during the alleged discriminatory period is not revealed. The facts reveal that Mary Baker engaged in activity in sup- port of the Union prior to October 2, 1970. There is no evidence, however, to reveal company knowledge or belief of her union activities or desires until late in November 1970. On October 2, 1970, the facts reveal that toward the end of the workday assembly line 2 was working on a clock designated as No. 930." There is no evidence that any of the other lines, on October 2, 1970, were working on clock No. 930.20 Line 2 employees were directed to work overtime on clock No. 930 on October 3, 1970. Some of the employees normally on line 2 were unavailable for the overtime work. The Respondent selected other employees for the replace- ment needs and filled out line 2 for the overtime work. On October 3, 1970, Respondent engaged in overtime production of clcok No. 930-at the place where assembly line 2 normally worked and with the basic assembly line 2 crew plus fill-ins. ° The Respondent manufactures and produces clocks ° The General Counsel's questions directed to Robertson attempted to, but did not, develop that as a fact line 1 worked on clock No 930 on October 2, 1970 Even if line 1 had worked on clock No 930 up to 2 p m , as suggested by the question, the evidence is not sufficient to reveal that any production change was discriminatorily motivated SPARTUS CORPORATION On October 16, 1970, assembly line 2 was engaged in work on a nonchime-type clock. During the afternoon of October 16, 1971, there were production plans for overtime work on this type of clock. Employees on assembly line 2 were in- structed to report to work on October 17, 1970, for overtime work. Around 4 p.m. production orders changed and it was decided to produce clcok No. 930 with overtime work. Re- spondent, on October 17, 1970, produced clock No. 930 with overtime work with the basic assembly line 2 crew plus fill-ins." The General Counsel appears to contend that the timing of events as to the usage of assembly line 2 on October 3 and 17 for overtime work reveals discriminatory conduct. The General Counsel appears to contend that the usage of line 2 with fill-in employees was a pretextuous device to cover up discrimination against Green , Baker, and Womble. It would appear that, if this were his theory , he would contend that other employees, who normally worked on line 1 and who did not receive overtime work on October 3 and 17, 1970, were also victims of discrimination . In any event, the Respondent, insofar as the evidence shows, followed its normal practice of assignment of work to the assembly line producing the clock desired at the end of the workday on October 3, 1970. The facts also reveal a proper basis for the assignment of assembly line work to assembly line 2 on October 17, 1970. In sum, the facts fail to reveal that the assignment of overtime work to assembly line 2 on October 3 or 17, 1970, was a pretest to cover up discrimination in the assignment of work , or lack thereof, to Baker, Green, or Womble. The General Counsel contends and witnesses Green, Baker, and Womble generally testified to the effect that in practice seniority was followed in the assignment of such overtime work on an individual basis. Robertson credibly testified to the effect that the determination was based on skill and experience and that seniority came into play only when everything else was equal . I note that Baker credibly testified that in the past when she desired overtime work she asked her leadgirl to indicate to her supervisor her availability and desires. I am persuaded that, if seniority were the fixed and controlling policy in the assignment of overtime , Baker's re- quest of her leadgirl would be meaningless and that she would not have made such request . If seniority were a fixed and controlling policy as to overtime , the employee would either be entitled to the work or not. I am persuaded that witnesses Green, Baker, and Womble have confused the fact that, gen- erally speaking, older employees are more experienced than newer employees and thus mistakenly believed that aspects of seniority had more controlling weight than they did . In sum, I credit Robertson's testimony to the effect that assignment of overtime work on an individual basis was based on experi- ence, skills, and judgment as to who was best qualified and that seniority only had a bearing where other factors were equal. I would note that I found Robertson to be a credible wit- ness in her testimony as to the basis of selection of employees for the assembly line and subassembly jobs. I find therefore that the individual employees selected for work were selected because of nondiscriminatory reasons and because of Re- spondent's belief that they were the best qualified employees for the work involved. I credit Robertson's testimony to the effect that neither Baker, Green, nor Womble were excluded from overtime work opportunities because of their union ac- tivities or desires " There is nothing in the evidence to reveal that the changed needs were other than bona fide 143 There was much testimony as to the jobs in assembly and subassembly that Baker, Green, and Womble had done or could do. There was also much testimony as to the employees who worked during the alleged discriminatory period. Such testimony touched specifically on many of the job skills and experiences of some of the employees and generally as to others. There is nothing in the evidence to suggest that Baker, Green, or Womble were as skilled or experienced , or more skilled and experienced, as to the specific jobs than the em- ployees selected for work during the alleged discriminatory period. Finally, the facts reveal that assembly line 1 with Baker, Green, and Womble was used on overtime line assembly linework on December 12, 1970. Considering all of the foregoing, I conclude and find that the facts fail to reveal that the Respondent, by assignments of overtime line assembly work from October 3, 1970, to December 26, 1970, discriminated against Green, Baker, or Womble. 2. Subassembly work During the alleged discriminatory period (October 3, 1970-December 26, 1970) the Respondent assigned overtime subassembly work to certain employees on certain Saturdays therein . Employees Baker, Reen , and Womble did not receive overtime subassembly work during this period of time. As previously indicated , the facts would reveal a basis of company knowledge of employees Green 's and Womble's union activities . There is no evidence to reveal that Respond- ent had knowledge or belief of employee Baker's union activi- ties or desires prior to late November 1970. Each of the three alleged discriminatees had performed or had ability to perform some of the subassembly work per- formed during the alleged discriminatory period . There is no evidence to establish that their experience or qualifications for the specific jobs performed were as good as or better than the persons who received the overtime work . The evidence also reveals that Womble had not been assigned overtime subas- sembly work in the past. The main gist of General Counsel 's contention and the thrust of the alleged discriminatees' testimony is to the effect that assignment of overtime work in subassembly should have been assigned on the pure basis of seniority. As indicated previously, I discredit such testimony and reject such conten- tion. As indicated, I find it hard to believe that if the Re- spondent's policy of overtime job assignment were based on seniority considerations, Baker would have found it necessary or useful to advise her leadgirl of her desire for overtime work. If seniority were the controlling basis, the employee would either be entitled to the work assignment or not, and the need for requesting overtime work would be futile and useless. As indicated, I credit Robertson's testimony to the effect that job skills, experience, and ability to do the job needed were the major factors, that seniority was only consid- ered if other factors were equal , that selection of employees for overtime subassembly work was nondiscriminatory, and that Green, Baker, and Womble were not excluded from consideration for overtime work because of their union ac- tivity or desires. The General Counsel appears to contend and the thrust of the alleged discnminatees' testimony is to the effect that Re- spondent adopted a policy in late September or August 1970 wherein overtime subassembly work during the regular work- week would be assigned to subassembly employees and on Saturday would be assigned to the "older" line employees. The thrust of the alleged discriminatees' testimony is to the effect that they were so advised by Supervisor Robertson. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear that in 1968 and 1969 Respondent, during the overtime season, had allowed some assembly line employees to clock in and clock out an hour before and after work for overtime subassembly work. Green's and Baker's testimony as to the selection of employees from assembly line is not clear. They appear to confuse the word "older" with assem- bly line employees and "newer" with subassembly line em- ployees and "older" and "newer" as terms of general com- parison for assembly lines. Their testimony to an extent suggests that subassembly line employees were not used for overtime work. Womble's testimony reveals that she did not in 1968 or 1969 do any subassembly overtime work. Consid- ering the foregoing and Robertson's appearance as a more reliable witness upon the point, I credit Robertson's tes- timony to the effect that Respondent's policy was to assign the more capable person to the job desired. It is clear that Respondent, in late August or early Septem- ber 1970, decided that the clocking in and clocking out of employees to do subassembly work during the regular work- day was not efficient. It is also clear that Respondent advised assembly line employees that they would not be afforded the opportunity at overtime subassembly work during the regular workweek. The alleged discriminatees testified to the effect that they were told by the leadgirl and Supervisor Robertson that the subassembly employees would do the overtime subas- sembly work during the regular week and that the assembly line girls would get overtime assembly line and subassembly work on Saturdays. Robertson does not specifically deny the conversation at- tributed to her. Robertson does specifically testify to the effect that both subassembly employees and assembly line em- ployees were considered prior to October 3, 1970, for Satur- day overtime work. Considering the nature of the total tes- timony, I credit the alleged discriminatees' testimony as to Robertson's conversation to the extent that they were told that there would be overtime opportunities as to assembly line and subassembly work on Saturday. I do not credit the testimony, to the extent that it might be so interpreted, that Robertson expressed a guarantee of overtime subassembly work on Saturday to assembly line employees to the exclusion of regular subassembly employees. I find that such interpreta- tion would be contrary to the logical consistency of all of the facts. I find it reasonable to believe that Robertson's conversa- tion to the assembly line employees involved was not an expression of specific policy but a day-to-day explanation of why the employees were not getting overtime subassembly work during the regular week. I find it clear that Respondent considered it received more efficient production from em- ployees who normally performed the specific work. At the time, Respondent very well may have planned daily overtime for subassembly employees, contemplating 50 hours in a 5- day workweek, realizing or believing that 58 hours would be too much for total efficiency and intending to use others for overtime if needed on Saturday. During the alleged dis- criminatory period, such records as are in evidence indicate that the employees utilized for subassembly work on the Saturday involved had not worked overtime during the regu- lar workweek. From all of this, I am persuaded that the Respondent did not intend to exclude subassembly employees from Saturday overtime and that the use of such employees for overtime subassembly work was consistent with policy and practice. Considering all of the foregoing, I conclude and find that the facts fail to establish that Respondent discriminated in its assignment of overtime subassembly work to the alleged dis- cnminatees during the period of time October 3 to December 26, 1970. Accordingly, it will be recommended that the com- plaint allegation of discriminatory conduct (in violation of Section 8(a)(1) and (3) in the failure to select Baker, Green, and Womble be dismissed." L. The Objections 1. Objections 1, 2, and 3 1. On or about December 18, 1970, the Employer, by its agents, representatives and supervisors, informed the employees that it would close the plant if the employees selected Petitioner in the forthcoming election. 2. On or about December 1, 2 and 4, 1970, the Em- ployer, by its agents, representatives and supervisors, threatened to move the plant if the employees selected Petitioner as their collective bargaining representative in the forthcoming election. 3. Throughout the course of the campaign, the Em- ployer, by its agents, representatives and supervisors, stressed to employees that if they selected Petitioner strikes were inevitable. The facts relating to the above objections have already been set forth, considered, and disposed of with respect to compan- ion complaint issues. Suffice it to say the facts do not reveal that Objections 1, 2, and 3 have merit. It will be recom- mended that Objections 1, 2, and 3 be overruled. 2. Objection 4 4. On or about December 1, 7 and 15, 1970, the Em- ployer, by its agents, representatives and supervisors, questioned its employees as to how they would vote in the forthcoming election. The facts relating to this objection have previously been set forth with regard to companion complaint issues. Conduct violative of Section 8(a)(1) has been found with respect to such conduct by Bradford, Kemp, and Goodin. Accordingly, it follows that such conduct constitutes conduct which inter- fered with the results of the election held in Case 26-RC- 3895 on December 18, 1970.21 3. Objection 6 6. On or about October 27, December 1 and 2, 1970, the Employer, by its agents, representatives and super- visors, informed its employees that, if they selected Peti- tioner in the forthcoming election, the Employer would refuse to negotiate with Petitioner. The facts relating to the foregoing Objection have been set forth with respect to companion issues in the complaint case. Suffice it to say that the facts therein do not reveal that the Employer informed its employees that, if they selected Peti tioner in the election, the Employer would refuse to negotiate with Petitioner. Accordingly, it will be recommended that this Objection be overruled. 4. Objection 8 8. Commencing on or about October 26, 1970, and continuing thereafter, it, by its officers, agents and repre- sentatives, denied Mary Baker, Ethel Green and Patsy Womble overtime because of their membership and ac- tivities on behalf of Petitioner. " There was also some work of a nonassembly line and nonsubassembly type performed during the alleged discriminatory period It suffices to say that the facts reveal that the selection of employees for such work, or the failure to select other employees for such work, was all based on nondis- criminatory reasons For the same reasons as previously indicated, such facts do not reveal acts of discrimination in violation of Section 8(a)(1) and (3) " The petition was filed on October 26, 1970 All of the objections pertain to conduct occurring after such date and to December 18, 1970. SPARTUS CORPORATION 145 The facts with respect to this issue have been previously set forth. Such facts do not reveal violative conduct on the part of the Respondent-Employer with respect to the question of overtime work for Baker, Green, or Womble. It will be recommended that Objection 8 be overruled. 5. Objection 9 9. On or about December 15, 1970, and continuing until the date of the election, the Employer, by its agents, representatives and supervisors, forced employees to wear "Vote No" buttons. The facts clearly reveal that "vote no" buttons were at Supervisor Goodin's desk, that Goodin knew of the presence of the "vote no" buttons, and that Goodin actively en- couraged employees to wear the "vote no" buttons around December 14, 1970. Accordingly, the facts clearly support the objection and I so find. It will be recommended that the objection be sustained." 6. Objection 12 12. Throughout the course of the campaign, the Em- ployer, by its agents, representatives and supervisors, refused to allow employees interested in the Petitioner to attend meetings held by the Employer. The facts relating to this Objection have previously been set forth with regard to a companion issue in the complaint case. Such facts as found do not reveal interference with the results of the election. Accordingly, it will be recommended that such Objection be overruled. 7. Objection 14 Objection 14 was withdrawn by Petitioner at the hearing. Such withdrawal request was granted by the Trial Examiner. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The facts establish, as alleged in Objections 4 and 9, that the Employer has interfered with the holding of a free elec- tion on December 18, 1970. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:25 ORDER Respondent, Spartus Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their or other employees' union affiliation or activties or voting desires in an NLRB representation election in a manner constituting inter- ference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (b) Instructing employees to conduct polls and interrogate fellow employees as to their union activities, desires, and voting desires as regards an NLRB representation election. (c) Instructing employees to report back the result of inter- rogation and polls concerning other employees' union activi- ties, desires, and voting desires as regards an NLRB represen- tation election. (d) In any like manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion as guaranteed by Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Post at its premises at Louisville, Mississippi, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Re- gion 26, after being duly signed by the Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith." CONCLUSIONS OF LAW 1. Spartus Corporation is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, CLC and its Local 664, are now, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair " Lyon, Incorporated, 145 NLRB 54 " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes " In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " " In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply (Cont ) 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER RECOMMENDED as to those allegations of the complaint found to be without merit, as indicated in the Decision herein, that such allegations be dismissed. IT IS FURTHER RECOMMENDED that Objections 1, 2, 3, 6, 8, and 12 be overruled. It is also recommended that Objec- tions 4 and 9 be sustained. It is also further recommended that the NLRB representation election in Case 26-RC-3895, held on December 18, 1970, be set aside." herewith " " It is noted that the Regional Director's order set forth that after the Trial Examiner's disposition of this matter the objection case be transferred to and continued before the Board and that Sections 102 46 and 102 69(e) of the National Labor Relations Board's Rules and Regulations , Series 8, as amended, govern the filing of exceptions IT IS FURTHER RECOMMENDED that the Board direct that a second election by secret ballot be conducted among the employees in the appropriate unit, at such time as the Re- gional Director for Region 26 deems appropriate and under his direction and supervision and pursuant to the National Labor Relations Board Rules and Regulations, Series 8, as amended. It is recommended that the eligibility of voters shall be in accord with the eligibility of voters' requirements set forth in J P. Stevens & Co., Inc., 167 NLRB 266. IT IS FURTHER RECOMMENDED that the Employer shall be required to file an election eligibility list with the Regional Director in accord with and for the purposes set forth in Excelsior Underwear Inc., 156 NLRB 1236.