Monroe Manufacturing Co., Inc.

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monroe Manufacturing Company, Inc. and Interna- tional Ladies' Garment Workers' Union, AFL-CIO. Cases 26-CA-4071 and 26-RC-4059 November 7, 1972 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 2, 1972, Administrative Law Judge Eugene F. Frey issued the attached Decision in this proceeding.[ Thereafter, Respondent filed exceptions and a supporting brief. The Administrative Law Judge also found that Respondent's unlawful con- duct had interfered with the election held on October 14, 1971, in Case 26-RC-4059 and recommended that the election be set aside. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Administrative Law Judge's Decision in light of the exceptions and brief and has decided to affirm his rulings, findings,2 and conclusions and to adopt his recommended Order as discussed below. Chairman Miller agrees with his colleagues that certain conduct engaged in by the Respondent violated Section 8(a)(1) of the Act, and that the election conducted on October 14, 1971, should be set aside and a second election directed, as recom- mended by the Administrative Law Judge. Contrary to our dissenting colleague, we find no basis in either the facts or the law to support the doctrine that because President Levinson's interroga- tion of employee Bruce on the morning of the election, October 14, 1971, could be characterized "as pleasant and nonthreatening," such conduct thereby lost its coercive impact. Based on the credited testimony of Bruce and the admissions of Levinson, Levinson asked Bruce why she was wearing a union button and what her complaints were, told her in the future that her complaint could be remedied, and questioned why she had waited so long to voice her complaints so that she had to "resort to this," pointing to her union button. Finally, Levinson asked Bruce if she had changed her mind about the Union, and she replied she had not. In Members Fanning's and Jenkins' opinion such I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to seeking out of Bruce by Respondent's president and the discussion which followed was calculated to, and would reasonably be interpreted by the employee involved as an attempt to, interfere with her right to self-organization , regardless of the courtesy and civility of the inquiry . It is the master-servant relation and the power explicit in it that make such interrogation unlawful . Such interrogation was clear- ly improper and violated her Section 7 rights. Similarly , we are unable to agree with the Chair- man's view that the discriminatory discharge of Hebron on August 6 was not violative of the Act because the Respondent recanted and rescinded its action . The Administrative Law Judge's findings were based on credited evidence fully supported by the record , and his recommended remedy properly does not provide for backpay or reinstatement, but orders the Respondent not to threaten employees with discharge , as it clearly did in the case of Hebron for engaging in union or concerted activi- ties. Accordingly, we find no basis for disturbing this finding. As for the speech of the Respondent's attorney, contrary to the views expressed by the Chairman, we find that Respondent attorney's speech to the employees on the day before the election cannot be considered in isolation, but should be considered in the context of the series of speeches made by the Respondent prior to the election. After Respondent's officials had addressed the employees and stressed the beneficence of the Employer and its longtime concern for the welfare of its employees, the Respondent attorney's remarks that the employees might receive less if the plant became unionized would raise fears and doubts among the employees and thus went beyond the protection of Section 8(c) of the Act. Thus, we agree with the Administrative Law Judge that in the context in which the remarks were made the freedom of choice of the employees in the election was interfered with and the Union's objection in regard thereto should be sustained. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Monroe Manufac- turing Company, Inc., Memphis, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in his recommended Order. credibility unless the clear preponderance 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. 200 NLRB No. 11 MONROE MANUFACTURING COMPANY 63 IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found are hereby dismissed. IT IS ALSO FURTHER ORDERED that the election held on October 14, 1971, in Case 26-RC-4059 be, and it hereby is, set aside.3 [Direction of Second Election and Excelsior foot- note omitted from publication.] CHAIRMAN MILLER, concurring in part and dissenting in part: I concur with my colleagues and the Administra- tive Law Judge except in the following particulars: I would not find that Levinson's last minute electioneering conversation with union adherent Bruce, which the Administrative Law Judge charac- terized as pleasant and nonthreatening, violated Section 8(a)(1). Nor would I find the immediately rescinded discharge of employee Hebron, when Respondent accepted his explanation for going through the timecard rack, was violative of Section 8(a)(1). As to the objections to the election, I would overrule Objection 5. I do not agree with my colleagues that the comments of Fortas to the employees in a talk the day before the election amounted to conduct interfering with the conduct of the election. As recited, his talk fell within the 8(c) area of legitimate free speech, stated a fact, and was clear in stating that no one could know what the employees could expect because the parties had to bargain in good faith, which, his comments indicat- ed, Respondent would do. Since I concur with the Administrative Law Judge and my colleagues in sustaining Objection 7, I join them in their decision to set aside the election. Milchem, Inc., 170 NLRB 362. 3 In agreeing with the Administrative Law Judge that the election should be set aside and a second election held , Members Fanning and Jenkins rely not only upon the conduct found objectionable by the Administrative Law Judge as a basis for setting aside the election, but also upon the conduct of President Levinson on the morning of the election , described above, in which he engaged employee Bruce in improper interrogation in an effort to persuade her to change her mind about the Union in violation of Section 8(a)(l) of the Act The Board has held that "conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election " See Pandpns Wetdment Company, 196 NLRB No 34 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: These consolidated I In Case 26-CA-4071, the issues arise on an amended complaint issued December 10, 1971, by the Board's Regional Director for Region 26, after Board investigation of a charge filed by the Union, International Ladies' Garment Workers Union, AFL-CIO, on July 23, 1971, and amended answer duly filed by Respondent admitting jurisdiction but denying the commission of any unfair labor practices In Case 26-RC-4059, the issues apse on a Board Order of December 22, 1971, directing a hearing to receive evidence on the Union's Objections 2, 5, cases were tried before me on January 25 and 26, 1972, at Memphis, Tennessee, with all parties represented by counsel, after pretrial procedures conducted in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues in Case 26-CA-4071 are whether or not Respondent, Monroe Manufacturing Company, Inc., engaged in surveillance of a union meeting of its employ- ees, created the impression of surveillance of employees' union and concerted activities , and subjected them to interrogation about, and threats and warnings of reprisals because of, such activities, in violation of Section 8(a)(1) of the Act. The issues in Case 26-RC-4059 are whether or not Respondent, by interrogation of employees, delivery of speeches to captive audiences of employees before an election, and remarks to employees while they waited in line to vote on election day, engaged in conduct improper- ly affecting the results of the election.' At the close of the testimony in both cases, the Trial Examiner dismissed paragraphs 11 and 13 of the amended complaint in Case 26-CA-4071 for lack of proof. All parties waived oral argument, but were given until February 21, 1972, to file written briefs with the Trial Examiner.2 After an extension of time granted by the Chief Trial Examiner to March 6, 1972, General Counsel duly filed a brief dealing with the issues in Case 26-CA-4071, the Union filed a brief dealing mainly with the issues raised by its objections in Case 26-RC-4059, but adopting the arguments of General Counsel in the unfair labor practice case, and Respondent filed a brief dealing with all issues. These briefs have been carefully considered by me in preparation of this Decision which was signed and released by me on April 27, 1972, for distribution to the parties in the usual course. Upon consideration of the entire record in the consoli- dated cases, including my observation of witnesses on the stand and analysis of the arguments of counsel during the trial and in their briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT AND STATUS OF THE UNION Respondent is a Tennessee corporation with a plant and place of business located in Memphis, Tennessee, where it is engaged in the business of making curtains, bedspreads, and cloth products. In the 12 months before issuance of the amended complaint Respondent in course of said business had both a direct inflow and direct outflow of goods and materials valued in each instance in excess of $50,000. Respondent admits, and I find on the above facts, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. and 7 to conduct affecting the results of the election, duly filed on October 20, 1971 Both cases were consolidated for trial by order of the Regional Director issued December 27, 1971 2 On March 6, 1972, counsel for General Counsel moved on notice to all parties to correct the transcript of testimony in various aspects There being no opposition by other parties , the motion is granted, and the transcript is hereby amended in the particulars set forth in the motion The motion will be marked in evidence as G C Exh 10 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union is a labor organization within the meaning of Section 2(5) of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Events The parties stipulate, and I find, that at all material times mentioned in the record the following persons were supervisors and agents of Respondent within the meaning of Section 2(11) of the Act: Nathan Levinson President Isaac Greenblatt Vice President Audrey O. Lambert Supervisor Lois E. South Supervisor Raymond L. Wells Supervisor Nell P. Freeman Supervisor The Union began an organizational campaign at Respondent's plant in December, 1970, in course of which it set up one meeting for plant employees at the Lorraine Motel, Memphis, Tennessee, on the night of March 18, 1971, and some employees, including Betty Ann Bruce, solicited others to sign union cards at the plant. Early in its campaign, the Union recruited one Jesse Busby, a black man and agent of a Memphis local of the Meat Cutters Union, to help in contacting employees of Respondent. On August 18, 1971, it filed a petition in Case 26-RC-4059 for an election, and pursuant to a stipulation for a consent election filed therein on September 9, a secret ballot election was held between the hours of 3:30 p.m. and 4:30 p.m. on October 14, 1971, at the plant among employees in an agreed appropriate unit 3 The Union lost the election by a vote of 67 for and 71 against, and thereafter filed timely objections to conduct affecting the results of the election. The Board on December 22, 1971, adopted a report of the Regional Director filed December 1, 1971, overruling all objections except 2, 5, and 7, and directing a hearing thereon as noted above. B. Reaction of Respondent to Union Campaign4 1. Alleged surveillance near plant During March and April, Busby occasionally solicited employees on the street outside the plant to join the Union. Once early in March, while Busby was talking to employee Leroy Williams and another employee near the driveway to the plant parking lot, Greenblatt drove out of the lot in his Thunderbird auto and Williams pointed to Greenblatt and told Busby that was his "boss." On another occasion in March, Greenblatt saw Busby again talking to Williams as he left the plant about noon. Busby offered to take Williams to lunch. Williams accepted and drove off with 3 All production and maintenance employees, including receiving clerk, mechanics, and head mechanic, employed at said plant, excluding all office clerical employees, guards, and supervisors as defined in the Act 4 All dates mentioned hereafter are in 1971, unless otherwise stated. 5 These facts are found from credited testimony of Busby and Greenblatt. Testimony of Busby at variance therewith is not credited, as Busby was very hazy about the time of the trailing incident , how many times he had lunch outside with Williams and other workers, and other details. Busby in his car. Greenblatt followed Busby in his own car for several blocks on a winding course through nearby streets, but when Busby circled back past the plant, Greenblatt stopped following and drove his car back into the parking lot. Greenblatt admits the trailing incident, testifying he did it because he saw a strange black man talking to one of the employees and driving off with him in his car, and since Respondent had had recent experiences with robbery of numerous employees in the plant with apparent outside help, he trailed Busby and Williams to find out where they went, since he knew it was unusual for Williams to leave the plant for lunch and also to get into a car with an apparent stranger. Greenblatt also testified without contradiction that, when Williams returned to the plant after lunch, he told Greenblatt (apparently upon the latter's inquiry) that Busby had offered him a free lunch so he accepted. Greenblatt apparently did not then seek to find out from Williams or any other source who Busby was, or what they talked about at the plant, in the car, or elsewhere, but learned later that Busby was a union organizer.5 In view of Greenblatt's uncontradicted and reasonable explanation for his single following of a person who was then a stranger to him, after he had picked up an employee at the plant, and the lack of later action by Respondent with respect to Williams or otherwise, after Greenblatt learned why Williams had ridden with the stranger, a reason not connected with any union activity, I cannot find that Respondent was thereby engaging in surveillance of union or concerted activities of employees in violation of the Act, and I grant Respondent's motion to dismiss paragraph 7 of the amended complaint dealing with this incident .6 2. Alleged surveillance at Lorraine Motel With the assistance of Busby, the Union arranged a meeting of employees with union agents on March 18, 1971, at 7 p.m., at the Lorraine Motel, which is located a few blocks from Respondent's plant. About 6 p.m., Busby arrived at the motel with Mary B. Cameron, an organizer, and Lillian Kolwyck, a staff member, of the Union. While the women checked with the motel management about the meeting room arrangements, Busby waited outside the motel to watch for employees as they arrived, as it was dark and raining hard. Sometime before 7 p.m., employee Dorothy Jean Van Buren arrived with her husband; she was the only employee who attended the meeting; her husband is not employed by Respondent. While Busby was waiting outside he saw several cars drive past the motel slowly. One was either a Chevrolet or a Chrysler, and then he saw a Ford Thunderbird come by.7 Busby testified that he entered the meeting room and asked Van Buren if she knew what her "boss" looked like, and what type of car he 6 As Greenblatt clearly had a compelling business reason (protection of employees against repetition of recent robberies ) for surveillance of the stranger who had talked to Williams, I cannot equate this incident with the repeated and continued surveillance of actions of a union agent while driving with employees in Tru-Lane Metal Products Company, 138 NLRB 964, 966-967, where the employer put forth the questionable defense that he did it to "satisfy an aroused curiosity " r 1 find these facts from credited testimony of Cameron, Busby and Van Buren. MONROE MANUFACTURING COMPANY 65 drove. She replied she knew her boss and he drove a Thunderbird. Busby told her a car was circling the block, and took her to a window and drew aside the blind and showed her a Thunderbird passing, and she identified Greenblatt as the driver. Busby and Cameron then went outside with Mr. Van Buren, and either Busby or Cameron noted the license plate number as Tennessee I DF 291, and one gave it to the other to note down. Cameron testified that she went out into the street toward the car and tried to stop it as it passed by holding up her hand, but it passed on, nearly knocking her down in the process. Later that evening Cameron telephoned Greenblatt at his home, identified herself as a union agent, and accused him of keeping the meeting under surveillance and of almost running her down with his car. He made no answer or comment. Greenblatt denied categorically that he drove near or around the motel that night, claiming he drove home as usual from the plant at 6 p.m., taking his usual route which passes nowhere near the motel. He also claimed that on that evening his Thunderbird still had his 1970 Tennessee license plate number KS 1785, and that his 1971 plate number 1 DF 291 was not put on by his service mechanic until about 3 days before April 1. However, records of a local leasing concern from whom he leased the Thunder- bird, and testimony of one of its officials, show that the lessor mailed him the 1971 plates in time for him to receive them March 11, and billed him for the fees on March 19. The lessor's testimony at most only throws some suspicion upon Greenblatt's denial of his presence at the motel that night. His denial is also supported in part by testimony of Van Buren flatly denying that she looked out the motel window and saw or identified Greenblatt and his car; she admits that her husband at one point went outside with Busby and Cameron, but there is no testimony from him or any other witness as to what he saw outside. This leaves only the testimony of Cameron and Busby to support the claim of actual surveillance, and I am compelled to discredit their story for various reasons. Although Busby insisted he saw the Thunderbird pass by the motel at least twice, once before talking to Van Buren and once after, this story is weakened when he admits after being confronted with his Board affidavit that the first car he saw was a Chrysler; that he was not sure what he saw the first time or later is indicated by his admission that he was looking at the car in the dark through a hard rain from a point several widths of the street from the car. The incredibility of his story is also shown by his argument that when he came outside with Cameron and saw the Thunderbird, Greenblatt had "changed the car into a Thunderbird." Cameron further confuses the identification of the car by her admission that Busby may have identified one of the cars he saw as a Chevrolet, and that he told her another car besides a Thunderbird had passed the motel. The testimony of both thus indicates Busby saw at least two other cars pass the motel before he saw the Thunder- bird. Busby's story about calling Van Buren to identify that car and its driver is clearly spurious, for he admits he already knew Greenblatt personally from William's earlier identification of him at the plant, which raises the unanswered question why he found it necessary to call on Van Buren to identify Greenblatt . Cameron also contra- dicts both herself and Busby on this point , for she first says she did not learn that night that it was Greenblatt driving, and then turns around and says Busby told her it was he; she is not sure whether Van Buren identified him to Busby, although her affidavit given to the Board in August says that Van Buren told her personally it was Greenblatt; she then says she knew for sure that it was Greenblatt only after seeing him in his Thunderbird at the plant on April 7. Both agents also contradict each other on whether and how they got the license plate number : he says he wrote the number down outside the motel on a pad, and gave it to Cameron in the motel ; she says she called out the license number from the sidewalk to Busby, and he wrote it down, although the car was across the street from her in the dark. Busby further destroys his credibility by his claim that while the Thunderbird was passing once or twice, he already knew Greenblatt, and then admits he "really did not" know he was driving , as he was not paying attention to the drivers of the cars that passed . Finally, their conflict on who saw and noted the alleged new license number, plus Cameron's admission that she first identified it in April, indicates strongly that neither actually saw nor noted the license plate nor saw Greenblatt , but Cameron was backdating her knowledge gained in April in a palpable effort to place Greenblatt and his car at the motel that night. Although Greenblatt admits Cameron's tele- phone call and her accusations after the abortive meeting, his failure to deny the accusations or argue with her about it does not in these circumstances amount to an admission or in any way support her self-serving and unpersuasive testimony. Considering the vague, confused, and contra- dictory testimony of Cameron and Busby , I conclude that much of their testimony of the events of that night is contrived and so lacking in credibility that it does not overcome the straightforward and credible testimony of Greenblatt and Van Buren to the contrary . I conclude that General Counsel has failed to adduce substantial testimo- ny adequate to require a finding that Greenblatt kept the motel meeting under surveillance that night , or that Respondent violated the Act as alleged . I grant Respon- dent's motion to dismiss paragraph 8 of the amended complaint, and will recommend that it be dismissed accordingly. 3. Alleged impression of surveillance Sometime late in June, employee Lottie S. Woods was visited by a union agent at her home on Monday or Tuesday night. While she was at work Wednesday morning, Greenblatt approached her and said "I had a most mysterious telephone call that you had company from the Union." Woods replied that her husband was a 100-percent union member and she was, too, and that she knew who told this to Greenblatt. This conversation, which I find from credited testimony of Woods and Greenblatt, was clearly calculated to give Woods the impression that her union activities were under surveillance by Respon- 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent, and thus restrain her in such activities. I find that Respondent thereby violated Section 8(a)(1) of the Act .8 4. Alleged interrogation and threats On a Saturday in March, 1971, while Bruce was working overtime under the supervision of supervisor Audrey O. Lambert, the latter came to Bruce's machine and they began a casual, friendly talk about personal matters. In its course, Bruce asked if Lambert had heard about the union organizing campaign. Lambert said she had, and com- mented that she could not understand why the employees wanted a union, that the Company had had organizing campaigns in the past, and that the workers had voted out the last union that had appeared at the plant because it would not do for them what it said it would. She argued that Vice President Greenblatt was a reasonable man, a good boss, and the workers could take personal and other problems to him and he would help them out. Lambert also said that if the employees had a umon "things would not be the way they are now," they would be "much stricter, you could not go to the boss with problems, you would not be able to go to the bathroom without asking permission"9 While most of Lambert's remarks in response to Bruce's mention of the Union appear to be legitimate free speech and opinion, I find from Bruce's uncontradicted testimony that Lambert's remarks about things being "stricter" without easy access to the boss on problems if the Union came in were given in a serious tone, and I believe Lambert spoke in this vem because of her constant discussion with her mother, Supervisor Lois E. South, about the Union, union experiences in other plants, and Bruce's activity in the campaign; Lambert had also learned from other employees that Bruce was actively soliciting employees to sign union authorization cards. Hence, I find that while Lambert made the remarks last quoted seriously and in good faith, they were the type which have a tendency to coerce and restrain employees in their union activities, and Respondent thereby violated Section 8(a)(1) of the Act.io Bruce was transferred to work under lead girl Pearl Cox in the bedspread department about March 20; that department had been activated early in 1971 after being closed for many years. When it resumed operation Greenblatt assigned Cox as lead girl to train several black workers in the operation; after they were transferred elsewhere, Bruce and Faye Higdon were transferred into it and worked with Cox until the operation closed down again in September, 1971. After Bruce came in, Cox was asked by workers in other departments to request Bruce to stop soliciting them to sign union cards. Cox relayed this request to Bruce, saying the other workers did not want the cards. Sometime in June, 1971, Bruce was talking once at her machine during working hours to several other workers standing nearby about a union meeting scheduled for the 8 Plasticoid Company, 168 NLRB 135, fn 3 9 I find this conversation from credited testimony of Bruce, corroborated in part by admissions of Lambert, who could not recall any such discussion but admitted that Bruce had worked Saturday overtime under her many times, and that she often talked about the Union to workers after they brought up the subject or asked questions about it 10 1 find nothing in the record to warrant a finding, as suggested by Respondent, that Bruce raised the union issue deliberately in order to provoke an expression of antiunion views from Lambert, so that this next night. She invited one employee to come to the meeting. Cox noticed the group, walked up to Bruce, and told her "we are not supposed to be doing these things during working hours," and directed Bruce to go back to her work. The other employees moved away when Cox came up, and Cox asked Bruce what one, Edie Danovi, was saying about the Union. Bruce replied she had asked about the union meeting. Cox said someone in the rear of the plant was getting union cards signed, and asked if it was Danovi. Bruce said no. Cox then asked how Bruce learned about the union meetings. Bruce replied one of the union agents usually called her. Cox commented "they never get in touch with me," and Bruce replied "they don't usually get in touch with supervisors." Bruce told Cox she could come to the union meeting if she desired." Cox's queries of Bruce about workers' umon activities and the way they learned of union meetings were clearly more than casual interrogations on those subjects and hence were the type well calculated to coerce and restrain employees in their union activities. Respondent argues, however, that Cox was no more than a lead girl in the bedspread department without supervisory authority, so that her remarks are not chargeable to Respondent. The record shows that when Greenblatt reactivated the depart- ment, he brought Cox in principally to train employees in the operations, as she knew all of them from long past experience. However, Respondent held her responsible for keeping the work flowing through the department, and this included authority to assign various machine jobs to workers so as to keep them busy and to transfer them from one job or machine to another in order to keep the work flowing. In the process she also ran machines herself as needed. She also had the duty of (1) initialing timecards of employees to show their reporting time, if they failed to punch their cards on checking in; (2) initialing time periods on their cards when their machines were idle for repair work; in these instances, Respondent paid the worker for the idle time on the strength of Cox's notations, not on the repair time noted on the cards by the mechanic; and (3) initialing time periods when workers were on piece work, and changed to straight time work; these bookkeeping entries were obviously the basis on which Respondent paid the workers. Cox also reported absences of workers daily to the personnel office; although employees at times called in to tell Greenblatt when they intended to be absent, they also reported to Cox when Greenblatt was not available. Cox also assigned workers to work overtime when necessary. Greenblatt had told at least two of her employees, Bruce and Higdon, that Cox was their supervisor, and they would take orders from her. On one occasion, after Bruce and Cox engaged in a serious argument about Bruce's work, and Cox reported the incident to Greenblatt, asking him to move either Bruce or incident does not fall within the ruling of the Second Circuit Court of Appeals in Colecraft Manufacturing Company, Inc v N L R B, 385 F 2d 998, at p. 1003. 11 1 find these facts from credited testimony of Bruce . Cox denied certain portions of Bruce's testimony as to her remarks , but also admitted she talked readily with employees if they asked questions about the Union, its campaign , and her views on it; hence I do not credit her denials of the questions about the actions of Danovi, and how workers learned of the union meetings. MONROE MANUFACTURING COMPANY Cox, as Bruce did not like to work with Cox, Greenblatt told Bruce she had to do the work the way Cox ordered it, as she was supervisor; he also told Cox she should ignore the argument and get along with Bruce as best she could. Bruce was not transferred from that department until it was closed. In performing her work, Cox reported directly to Vice President Greenblatt. Although Cox did not have the more usual indicia of supervisory status, such as the rights to hire and fire, recommend effectively such action, or attend supervisory meetings, I am satisfied from the above facts that she had clear authority to transfer and assign other employees in their work and responsibly to direct them, and in exercise of that authority was required to use independent judgment, far beyond conduct of a routine or clerical nature. I find that she was a supervisor within the meaning of Section 2(11) of the Act, and that Respondent violated Section 8(a)(1) of the Act by reason of her interrogation of workers found above.12 On an unidentified date in April, employee Florina F. Higdon, a machine operator who had signed a union card earlier that month, was called in by Greenblatt to discuss her work of the day before. In course of the discussion, Greenblatt asked her if Bruce had been "pounding me in the ear" about the Union. She replied that Bruce was not but another person was. Greenblatt asked if Higdon knew that Bruce's husband was "pushing her in the Union." Higdon replied she did not know what either of the Bruces were doing.13 Greenblatt's double interrogation, not triggered by anything that arose in the discussion of Higdon's work, was clearly far from casual but rather a deliberate inquiry about the union activities of Bruce, a prominent union organizer, hence I find that it was coercive and violative of Section 8(a)(1) of the Act. On Friday, August 6, while employee William E. Hebron, an active union adherent, was standingjust before 8 a.m. in front of the timecard rack at the front door of the plant, Greenblatt came out of his office, saw him, and told him he did not work there any more. Hebron asked why, and Greenblatt said he was making a count of the timecards in the rack and had no right to do that. Hebron denied making a count, saying he was looking for his timecard which was missing. Greenblatt asked if he had clocked in, and Hebron said no. Greenblatt then said he did not have to clock in, as he no longer worked there. Hebron repeated that he was really looking for his own timecard. Greenblatt asked what clock he used to punch in, and Hebron replied that when he rode to work with another employee, Bessie Foster, he clocked in at the front timeclock, but when he drove his own car to work, he used the middle timeclock. Greenblatt told him that from then on he would have to clock in at one clock, t..ld him to look for his card, and walked away. Hebron apparently found his card, punched in, and went to work, and has worked at the plant ever since.14 Hebron testified that he had left his 12 I find no violation of the Act in Cox's relay to Bruce of the request of other workers that Bruce stop soliciting them for the Union, for this could not reasonably convey the impression that Cox was on her own initiative keeping watch on union activities of Bruce or other union adherents I grant Respondent's motion to dismiss the amended complaint insofar as paragraph 12(b) thereof deals with this incident 13 I find this conversation from credited testimony of Higdon Green- blatt admitted the conversation but denied only the specific interrogations 67 card in the middle rack when he clocked out the night before, so that usually his card was in that rack the next morning. However, he had ridden with Foster the first 3 days of that week so used the front timeclock, and when he drove in his own car Thursday, August 5, he still used that clock to check in but carved his card to the middle clock so he could check out easier when going to his car in the rear parking lot. When he rode again with Foster Friday morning, he mistakenly went to the front clock to check in, still assuming his card was in the front rack. This appears to be a reasonable and credible explanation, from which I am inclined to believe that Hebron made a natural mistake in assuming his card was in the front rack, forgetting that he had punched it out at the middle rack the night before. Greenblatt admits he knew Hebron was on the employees' organizing committee assisting the Union, so his abrupt discharge of Hebron without inquiring first what he was looking for at the front timeclock is persuasive evidence that he was deliberately acting to get nd of a prominent union adherent on the pretext that he was making some sort of card count for the benefit of the Union, but rescinded this action only after Hebron explained at some length that he was seeking his own card, and why. In all the circumstances, I find that Greenblatt's hasty action, though immediately rescinded, was well calculated to restrain employees in any union activities, and that Respondent thereby violated Section 8(a)(1) of the Act. On August 12, after Bruce had visited the ladies' restroom, Greenblatt was waiting for her when she returned to her machine, and asked how long she had been in there. She replied 10 to 15 minutes. He asked why she was there so long, and she said she had been pasting production tickets on her production sheet. He said it should not take that long, that the bathroom was for "one purpose only and you know what that is." She argued that the women daily make up their production sheets in the restroom, and it should not make any difference whether she did it there or at her machine. He told her he wanted her at her machine where he could see her; he added that he did not "want to seem to be picking on you, but I do not want you in the bathroom organizing for the Union." She denied that she was doing that.15 Greenblatt testified that he had heard reports that Bruce had been in the restroom for extended periods up to 20 minutes soliciting for the Union, and that this was why he told her to stop using that room for organizing purposes. He had once before complained to her about a long stay in the restroom, and she had then given the excuse that she was only smoking a "long cigarette." On the basis of reports he had received, Greenblatt had a clear right to ask Bruce about her apparent longer than normal visits to the restroom, which might interfere with her regular work, after she had once given him the "long cigarette" excuse, and when he indicated after her ticket-pasting excuse that he was not stated by Higdon, which denials I do not credit in light of other interrogation of, and coercive conduct toward, employees by Respondent found herein 14 These facts are found from credited testimony of Hebron, which is not denied by Greenblatt, except for the words indicating instant discharge. 15 1 find this conversation from credited testimony of Bruce and Greenblatt 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trying to "pick on you" but did not want her to use the restroom privilege as an excuse or place for union activities during working hours, I must conclude that he was only engaging in a legitimate business purpose of requiring an employee to use working hours for work and not for union activity. There is no proof that Bruce was in the restroom on this occasion during her regular break time, in fact her excuse to him that she was engaging in part of her work duties while there indicates it was during her work hours. It is well settled that an employer can insist that an employee's worktime is to be used only for work and not for union activity, and that he can properly impose reasonable rules and discipline for this purpose.16 Hence, I must conclude that Greenblatt's interrogation of Bruce about her long stay in the restroom and warning not to use it for organizing purposes, in the circumstances here shown, had a legitimate business purpose and was not in fact or inherently coercive or a restraint on employees' legitimate union activities. I therefore find that Respon- dent did not violate the Act in this instance and will recommend that paragraph 15 of the amended complaint based on this incident be dismissed. On August 12, while Faye Higdon and supervisor Cox were working near each other, Higdon asked Cox what she thought the Union could do for the workers, whether it would help Higdon get a better job. Cox, who had been in a textile union before, replied that she did not think so, that a union would not help the workers but only those who were working for the Union. Higdon said that she only wanted to protect her job, and Cox replied "You will not have a job then," and that she was not going to pay her $10 union dues for nothing, that she had tried it once before.17 As Cox had been in a union before and told that to Higdon, it is clear that her statement as to the value of a union in the plant and whom it would help was her own opinion, based on experience, and was stated in answer to Higdon's request for her opinion. Hence, I do not consider this opinion coercive or violative of the Act. Further, in its context of Cox's views that a union would only work to protect those who worked for it, Cox's remark that Higdon would not have a job if the Union came in does not appear coercive directly or indirectly; it does not reasonably seem to be a coercive warning of a consequence of the advent of the Union coming from the employer, because neither Respondent nor its attitude toward the Union was mentioned in the discussion; hence it is only speculation to say that Cox was warning that employees or Higdon in particular would lose their jobs if the Union came in; there is nothing in the circumstances to indicate that Respondent might make such a retaliation; the more likely inference is that Cox was trying to warn Higdon that she would not have job protection from the Union unless she joined or worked for it. At best the remark is equivocal, so I conclude that in its context it is not clearly a coercive 16 Peyton Packing Company, Inc, 49 NLRB 828, 843, 844, Republic Aviation Corp v N LR B, 324 U S 793, N LR B v. United Steelworkers of America, AFL-CIO (Nutone, Inc), 357 U S 357, Walton Manufacturing Company, 126 NLRB 697, 698 General Counsel cites no authority which protects employees in the use of restroom pnvileges and time during working hours for umon activity 11 This conversation is found from a composite of credible testimony of Higdon and Cox Testimony of Cox at variance therewith is not credited remark which violated the Act. I will recommend dismissal of paragraph 16 of the amended complaint dealing with this incident. On August 12, supervisor Lois E. South from another department had occasion to bring bedspreads to Bruce for repairs. As she walked up to Bruce, the latter was talking to another worker about a visit from a union agent. South heard part of the discussion and told the other worker "Tell Betty about the union at Humboldt, Tennessee, that closed down once they got organized." The other worker walked off, and South then disparaged unions, indicating they had first been organized by foreigners, that they could cause strikes affecting the national defense. She also mentioned that at a nearby bag factory where she had worked the owner had said during a union organizing campaign that if a union came into it, he would close the plant, and that sometime after it was organized the workers were told it would close down, and the older employees probably could not find jobs elsewhere while the younger ones could, and that later it did close. South also said that if workers wanted a union they should go to work in a plant that already had a union. She also said that unidentified officials of Respondent had said in the past they would never permit a union in this plant, and she was afraid the plant might close down and she would lose her job.18 While South's recital of her experiences at another plant and her obvious concern about her own job if Respondent's plant closed down showed that she was mainly concerned about her own future work prospects if the Union organized Respondent's plant, her remarks also show she was antiunion,i9 hence I conclude that her recital of the threat of shutdown at another plant being unionized, followed by its actual closure, coupled with the remarks that Respondent's officials had made similar threats during a past organizing campaign at this plant, were in sum well calculated to coerce Bruce by warning her that organiza- tion of this plant might result in its shutdown by its antiunion owners and was well calculated to coerce and restrain employees in their union activities. When coupled with this clear threat, South's suggestion that union- minded employees should quit and work at a unionized plant was also fairly calculated to warn that union adherents might in some way lose their jobs if the Union came in and was also coercive. I find that by these remarks of South, Respondent further violated Section 8(a)(1) of the Act. I find from credited testimony of Bruce and admissions of Levinson that on the morning of October 14, President Levinson approached Bruce at her machine, while she was wearing a prounion "Vote Yes" button on her clothing. Levinson remarked that the button did not look very attractive. She said she thought it looked pretty good. He then asked why she was "for the Union" and how she was doing on her job. She replied "Fairly well," complaining iS This discussion is found on credited testimony of Bruce, corroborated in part by admissions of South Testimony of the latter in conflict therewith is not credited. 19 Bruce's version of the discussion indicates clearly that South injected herself into the talk of the two workers, while South was vague about whether Bruce had asked for her views about the Union . Hence, I cannot find that Bruce "baited" South into antiunion remarks, as Respondent suggests. MONROE MANUFACTURING COMPANY 69 that she had been moved from job to job constantly at the plant, that she could not work in the drapery department because Supervisor Lambert did not like her. Levinson explained Respondent at times moved workers to other departments because of conflicts between them and supervisors. He said employees could discuss such griev- ances with Greenblatt at any time. She claimed one reason she wanted a union was because Greenblatt let supervisors run the plant, and past talks with Greenblatt about grievances had not accomplished anything. Levinson said if she got nowhere with Greenblatt she could go either to Eli Heimberg (executive vice president of Respondent) or Levinson himself. She said she saw Heimberg in the plant only about once every 2 to 3 months. Levinson then said Bruce had a legitimate complaint, but she should not have let it go so far, that she had waited so long she had to "resort to this," pointing to her union button. He then asked "Have I changed your mind about this?" pointing to the button, and she replied he had not.20 It is clear that in this discussion Levinson was doing some last minute electioneering, trying in a pleasant and nonthreatening way to persuade a prominent union adherent to change her mind about the Union, and that his two questions were patently designed to find out why she favored the Union, and then whether his arguments had changed her mind. The interrogation was thus clearly improper, under well- settled precedents, and I find that Respondent thereby further violated the Act. I find from uncontradicted testimony of Clara P. Burcham that on October 14, Burcham took her usual afternoon break in the cafeteria at 3 p.m. (about a half hour before the polls opened) with Supervisor Nell Freeman and another worker. As the three returned to work about 3:10 p.m., Freeman told both workers "You all know how to go in there and vote, write a big `No' on your ballot." Burcham said they were not allowed to write anything on the ballot. Freeman replied "You know what I mean, a big X." Contrary to the claim of General Counsel, I view Freeman's remark "You know how to go in there and vote" as last minute suggestions and electioneering, not as interrogation. I will recommend dismissal of paragraph 20 of the amended complaint dealing with this incident. III. THE OBJECTIONS TO THE ELECTION Objection 2 This objection charges that the Company interrogated employees individually concerning their union activity. In reviewing the proofs offered on this objection the Regional Director considered only the Levinson-Bruce and Bur- cham-Freeman discussions on the day of the election. I have found that only Levinson's interrogation of Bruce that day was coercive and violated the Act. However, this is the only instance of interrogation within the crucial preelection period. The Board has long held that a secret ballot 20 This conversation is found from uncontradicted and credited testimony of Bruce 21 Louisiana Manufacturing Company, 152 NLRB 1301, 1314 22 Worzalla Publishing Co, 171 NLRB 219, 220 23 As the third speech finished before 3: 30 p in on October 13, there appears to be no violation of the insulation of the 24-hour period election, held under Government supervision and safe- guards developed through the years, should not lightly be set aside, and that it will exercise this power sparingly, only in cases of excessive acts involving conduct "so glaring that it is almost certain to have impaired the employees' freedom of choice."21 In exercise of this caution, the Board has held that a single instance of interrogation of an employee (though possibly an unfair labor practice in itself) does not warrant setting aside an election.22 I recommend that Objection 2 be overruled. Objection 5 This objection charges that the Employer held several captive audience meetings of all employees during working hours, in which (1) union representatives were denied the right to answer employer arguments, and (2) the Employer made remarks amounting to threats that selection of the Union as representative of the employees would lead to losses of benefits and jobs and probable plant closure. The testimony of witnesses of both Union and Employer establishes that the Employer convened three captive audiences of employees in the plant during working hours in the month before the election. The third meeting, on which the Union mainly relies, was held October 13 between 2:30 p.m. and 3:20 p.m., with prepared speeches delivered by Vice President Greenblatt and President Levinson, and an extemporaneous speech of Attorney William E. Fortas, in that order.23 While at least six employees called by the Union gave testimony about portions of the three speeches,24 I am satisfied that in the main they were stating mainly their understanding, impressions, and interpretation of what the three speakers said; in few instances did they appear able to recall the exact words stated by each speaker in context, and then only by admission on cross-examination. Hence, I accept as more accurate and reliable, and make findings on, the written text of the speeches of Greenblatt and Levinson, as corroborated in part by admissions of union witnesses. While the exact texts of these speeches are set forth in full as exhibits of Respondent, I summarize in turn the salient portions and make findings of what Fortas said from his testimony and that of various employees, in order to analyze their effect and make findings thereon. Greenblatt's opening speech, which was fairly short, was mainly a review of various ways the Employer had tried to aid its employees in the past. He belittled the Union's approach to the employees, the nature of its agents, and their conduct toward employees and noted the questiona- ble character of their boasts and promises. He pointed out that wages at the plant were better than the industry average, and said they could be increased mainly by efforts of the employees themselves. I find nothing in this speech, whether considered in fragments or as a whole, which goes beyond the confines of fair and legal statement of fact and immediately preceding the election, imposed by the Board rule announced in Peerless Plywood Company, 107 NLRB 427 See Shop Rite Foods, Inc, 195 NLRB No. 14. 24 Hebron, Woods, Otis Harrell, Bernice Jordan , John Albert Smith, and Mary Evelyn Hensley. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expressions of views and opinions, and that all of it falls within the protection of the Section 8(c) of the Act. Levinson's speech, which took from 15 to 20 minutes for delivery, is the main target under this objection . Levinson stressed at the outset the concern of the Employer for the welfare of its employees . He then related the history of two prior union organization campaigns at the plant , in the first of which the employees chose a union and then voted it out after a year of experience with it. After explaining the Union's way of making promises to induce workers to help them organize and to join the Union, he then cited standard situations of poor treatment of employees which would give rise to a need for a union , and then emphasized that none of these conditions prevailed in Memphis: employees had received steadily rising wages and other benefits because the Employer was always concerned about its obligation to take care of its employees and help them with their problems . To illustrate this longtime concern and its effect, largely for the benefit of newer employees, he recited facts showing the expansion of the plant from a small garage to the present large building. He then stated his opinion that a union at Memphis would not work "to our best interest," explaining that the plant was competing in an industry which was almost 100- percent nonunion, and paying wages 10-percent to 30- percent lower than those at Memphis, so that the only way the plant could remain competitive was by more expendi- tures for mechanized operations , so that productivity per worker was greater, and as their productivity rose, so did their wages. In contrast, he argued that a union in the plant in an industry which was 99.9-percent nonunion "could cause problems" and "could place a "terrible burden on our competitive position ." He said he knew this from the Employer's experience at New Bedford , where a plant with a capacity of 700 workers had only 225 working, because it could not compete with other manufacturers, and it "stayed alive" only through making special small lot items. He then cited the example of an ILGWU local in a Fall River plant, where the payroll had dropped in a few years from 750 to 450, and explained that the owner had told him the "high cost of the union" affected the operating costs, so that "they are hard put to make ends meet and this is why their plant and personnel has declined so drastically." Levinson then specifically contrasted these gloomy experiences in two union plants with the facts at Memphis by arguing "that is not to say that anything like that will happen here. We hope that even if this union were successful Memphis will continue to grow as it has in the past." He repeated that Memphis had grown from a small garage-type plant of 35 workers to the present large plant with almost 200 workers. Levinson then explained the emergence of nonunion contract fabricators in the industry who made garments so cheaply that even the Employer had been forced to use some of them to stay in competition with other textile manufacturers , but emphasized the Employer was trying to avoid expanded use of such nonunion contractors by making Memphis more efficient in order to reduce costs, and maintain its work force while earning better wages. He noted there were only four union plants among 200 in the industry, but again emphasized "So far we have been able to compete with all because we try to be efficient and we shall continue to do so , I hope." Levinson then expressed the view that a union almost always means higher costs which, on top of normal business costs, "might become so burdensome that the plant loses its competitive position ." He then reassured the employees that "We will always strive under any condi- tions to maintain our competitive position here." He then repeated that Memphis had good management with the welfare of the workers at heart , and expressed the opinion that the Union could not do more for the employees than management was already doing , except make promises. Levinson then explained the effect of the Federal freeze on wage and prices on the business, giving the opinion that present wages and prices could be changed only in accordance with guidelines still to be issued. He argued that a contract negotiated during the freeze could not be carried out because it would force added costs on the employer and force him to raise prices , and the Federal Government would probably permit only small price increases and small wage raises, so that many parts of any contract agreed on could not be enforced, no matter what the Union promised, and this would take time . Levinson opined that the country would have a "managed economy" for an indefinite period, so that both unions and employers would "not be free to negotiate any more," with the Government having the final say on wages and prices. He emphasized that under these controls many promises made by the Union could not be cared out. Levinson then summarized his remarks in six short sentences. The first four stressed that a union was not needed because it would cost the workers money, and management had an "open door" to listen to workers and negotiate their problems because it wanted satisfied workers with greater earnings. The fifth sentence empha- sized only that rising costs which usually came with a union in a nonunion industry "could put the plant in a bad competitive position." The last sentence mentioned the indefinite freeze on "wages and benefits." If some portions of Levinson's speech are considered alone, out of context, it can be argued with some merit that he painted a bleak and terrifying picture to Memphis employees that their plant competed almost alone in an overwhelmingly nonunion industry, paying far higher wages than most of its competitors , so that if the Union came in and secured even higher wages and costlier benefits, the "terrible burden" placed on Memphis might well reduce its competitive position so as to bring it to the sad condition of the unionized New Bedford and Fall River plants, which were struggling to stay in operation with greatly reduced work forces and uncertain workloads. These groups of remarks might well put the workers in fear that advent of the Union at Memphis, like the other two plants, was certain to cause Memphis to lose work and compel it to cut its work force drastically in order to remain in operation, and that the Employer was fatalistic and would not prevent this if the Union came in. These portions of his speech would thus tend to have the same fearful impact as the speech condemned by the Board in MONROE MANUFACTURING COMPANY 71 Electro- Voice, Inc., 191 NLRB No. 96. However, there are significant differences in the two situations which militate against that conclusion for his whole speech. First, and very important, is that he made no mention of the possibility or actual occurrence of strikes, with actual violence and inevitable job loss, at the two example plants, arising from employee "surrender of their rights to a notoriously strike-happy union," run by "irresponsible dues-hungry union organizers" and "paid professional union representatives for whom such practices were the basis of promotion up the union ranks," as was done in Electro-Voice. Hence the employees did not have that dread prospect impressed on them. Second, while Electro- Voice officials, like Levinson, compared the expansion of their plant with the decline of its unionized plant elsewhere, Levinson emphasized at least three times in various phrasings that the Employer would do everything possible to avoid a work andjob decline at Memphis even if the Union came in: he noted the growth of work and jobs at Memphis although there had been a union there once before, the Employer's constant efforts to improve operations there to remain competitive, and that the Employer would strive to make Memphis continue to grow despite any "burdens" placed on it by the Union which might affect its competitive position. In sum, the main thrust of his presentation was that, although he felt on the basis of experience at two Massachusetts plants that advent of the Union would not do much for the employees, but would bring much greater problems to Memphis than the Employer already had in trying to remain competitive, the Employer would still work out some way to handle them, remain competitive, and keep Memphis growing, and that the Union could not do any more to accomplish this for the employees than the Employer was already doing.25 I think these repeated assurances, stated in different ways and at various points throughout his speech, were well calculated to allay any impressions of fearful consequences which employees might otherwise have gathered from other remarks relied on by the Union. When his total remarks are considered in context with the legitimate statements by Greenblatt about the Employer's long-continued concern for employees at Memphis, the fearful impacts found by the Union in the references to the experiences at the unionized Massachusetts plants are still further weakened. Considering the two speeches together in all their aspects, I must conclude that they do not reasonably rise to the effect of impressing fatally upon the employees the futility of selecting the Union to improve their present working conditions or of driving out of their minds all other considerations except the fear of certain loss of jobs and benefits if the Union came in, to an extent that would prevent them from making a free choice in the election. Insofar as Objection 5 is based on these speeches, I recommend that it be overruled. Fortas' speech first explained the mechanics of the 25 This legitimate opinion was also further strengthened in legitimate fashion by Levinson's reference to the recent imposition of Federal wage and price controls upon the ability of unions and employers to work out wage increases in negotiations, indicating that their efforts might be finally controlled by guidelines at that time unknown The Board has recently recognized that the Executive Order imposing such controls "did create serious impediments to the resolution of differences" insofar as increased election procedure and the method of marking the ballots. He then tried to answer questions which workers had recently asked the Employer about the course of the bargaining process. He said that if the Union won the election, the parties would "start from scratch," that "everything was subject to negotiation," that the workers might get less than they were now getting, or end up with the same as they had, or could get more, that there was no way of knowing what they would get, because the Act required the parties to negotiate in good faith, and in negotiations "you do not know what you are going to come up with." Regarding union authorization cards, he said that if workers signed union authorization cards, they could still vote "No." One worker asked him if employees could still vote for the Union if they had not signed a card, and Fortas replied that they could, that they could vote "yes" or "no" as they desired. He also mentioned that Tennessee was a "right-to-work" state, and no worker could be required to belong to a union to keep his job.26 Fortas' remarks appear to be legitimate statements of fact and expressions of opinion about the election process and employees' rights thereunder which are protected by Section 8(c) of the Act, except in one respect. When he stated, in explaining the possible outcomes of bargaining with the Union, that the employees might get less than what the Employer was already giving them, this was hardly a prediction of events beyond the control of the Employer, for it cannot be assumed that the Union would vary from the traditional demand of labor organizations for higher wages and more benefits in bargaining, or would readily agree to any decrease of wages or benefits, hence a prediction that the employees might get less than present benefits could only cause them to believe that, if the Union came in, the Employer might well act or conduct bargaining in such a way that they would eventually lose benefits. After Greenblatt and Levinson had repeatedly stressed the beneficence of the Employer and its longtime concern for employees' welfare, this remark of Fortas could only lead them to doubt whether that beneficence would continue, and to believe that the otherwise benefi- cent Employer would try to retaliate by taking away benefits, if they chose the Union as bargaining agent. In Golden Hours Convalescent Hospitals, 1 82 NLRB 796, 803, the Board held that similar predictions to employees in preelection literature coerced employees under Section 8(a)(1) of the Act, and also constituted conduct requiring that an election be set aside. On the basis of that decision, I must find that Fortas' threat that the employees might receive less than they presently received, if the Union bargained for them, was coercive conduct adversely affecting the results of the election. I recommend that Objection 5 be sustained in this respect. On the issue whether the Employer improperly denied the union members the right to answer company argu- ments during the speeches, I find from credible testimony economic benefits were sought by a union . West India Manufacturing & Service Co, Inc, 195 NLRB No. 203. See also U. S v Great Atlantic & Pacific Tea Company, Inc, and Local 117, Amalgamated Meat Cutters, etc, U. S District Court, Maryland, April 19, 1972, not yet officially reported, involving penalties on employer and union for violating guidelines 26 This speech is found from a composite of credible testimony of Fortas and various union witnesses 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Greenblatt, Heimberg, Charles A. Threadgill, Hebron, and Smith that during the three captive audience meetings, particularly the third, union adherents Hebron, Smith, and Otis Harrell positioned themselves in the center of the grouped employees and deliberately tried from time to time to "heckle" the speakers, interrupting them to inject comments or try to ask questions; they admitted that "we made it pretty confused, that is what we wanted to do," in an effort to let the workers know they had something to say but were not being recognized. When Hebron interrupted Levinson's talk, he stopped to ask Hebron to let him finish his speech, saying Hebron could ask questions or address the workers after Levinson finished. When Hebron did the same to Fortas, a company official asked him to wait until Fortas was finished, and after Fortas ended his speech and the workers were taking their usual afternoon coffee break, Greenblatt asked Hebron during the break if he was an attorney "that you can question the word of an attorney." None of the three "hecklers" or any other employee asked for the floor or tried to speak or ask questions at the end of any of the speeches on October 13; at most Smith walked up to Greenblatt at his office after the meeting was ended, and asked him if a union agent was allowed to speak and received some vague answer which he interpreted as a negative. I find that there was no attempt by the Employer to prevent employee representatives from speaking in rebuttal or asking questions after any speech was ended, hence the Employer did not engage in any coercive or other improper conduct affecting the election in this respect. Heath Company, 196 NLRB No. 29. I recommend that Objection 5 be overruled in this respect.27 Objection 7 This objection charges that the Employer improperly affected the election by effectively speaking to workers in the voting line while waiting to vote. The record shows that before and during the voting, the line of prospective voters extended from the actual voting area in a supply room off the cafeteria, along the adjacent edge of the cafeteria area down to one end of a line of three plant offices opening on one side of the lunchroom area, then turned left into a reception foyer where it curved to the right a few feet away 27 Even if the record required a finding that the Employer had deliberately denied union agents or adherents the right to respond during or after the meeting, this would not be objectionable preelection conduct requiring that the election be set aside. General Electric Company, 156 NLRB 1247 28 These facts are found from credited testimony of various witnesses of the Union and Employer, and documentary proof 29 I find the facts as to the agreement from credited testimony of Levinson and Greenblatt, as corroborated in part by testimony of Cameron and Bruce Testimony of the union witnesses is not credited to the extent that it purports to broaden the agreement to preclude all movement of company officials outside their offices for any purpose for the 1-hour voting period, because it is patent that the Union, in its all-out effort to show an overpowering pollution of the "laboratory atmosphere" of the election by any means, went far beyond the scope of Objection 7 by having Hebron testify to the bathroom trip of Deener (which would require a double breach of the voting line by a company official to answer an apparent call of nature), although he had not mentioned this trip in his Board affidavit, and adducing proof showing the mere presence of Greenblatt , Heimberg, and Levinson in the factory or outside company offices during the voting, and the presence of Levinson and Heimberg near the line of voters as it formed at the outset, until warned away by Cameron . In none of these instances from and around the receptionist's desk, and thence through a door behind that desk into the factory area.28 In a preelection conference of union and employer representatives with the Board agent conducting the election, it was agreed by all parties that while the polls were open, officials, agents, and representatives of both sides would stay out of the lunchroom and supply room area and away from the voting line, and that as the plant offices were adjacent to two sides of the lunchroom area, occupants of those offices who desired to use them would remain in their offices with office doors closed during the voting; however, it was also agreed that plant officials could go anywhere in the plant, provided they remained away from the lunchroom and supply room area and the voting line.29 As soon as the polls opened and the voting line began to form, some company officials including Levinson and Fortas went to Greenblatt's office, while Greenblatt himself went out into the factory, where he talked to other company supervisors, and to some employees after they voted. Before he went into Greenblatt's office, Levinson stood in the supply room for a few seconds near the head of the voting line, and when warned by union agent Cameron he should not be there, he replied he was "waiting on" Cameron, and when Cameron and other union agents went outside the plant, Levinson went into Greenblatt's office, and came out with Fortas only when he learned the ballots were being counted after the polls closed. Before she left, Cameron saw Vice President Heimberg at the receptionist's desk and warned him he should not be there. He replied he was waiting for her to leave; when she left, he went out into the factory, where he worked on material at a cutting table during the voting, with his back to the voting line, at a point about 40 feet from it. While Greenblatt was in the factory during the voting, he saw three new girls in the voting line. As he knew they were not on the list of eligible voters, he walked over and told them they were not eligible to vote, and could go home, so they left the line. In the same period, Greenblatt talked to at least one other worker in the factory after he had apparently voted.30 At one point in the voting period, Supervisor Nell (except Greenblatt's talk to three girls about their eligibility) is there proof of what officials said to purported employees ; in the cases of Heimberg and Freeman it is clear they spoke to no one at or near the voting line. The Union produces no witnesses from the voting unit to indicate whom Deener spoke to or what she said, significantly not calling Danovi or Laverne Warner who were mentioned by Hebron and Smith as in discussion with Greenblatt It is patent that the Union is reaching beyond the scope of its Objection 7 to try to show that the mere presence of any company official outside his or her office at any time during the voting, for any legitimate purpose including natural purposes , is a potent pollution of the election procedure This effort leads me strongly to doubt whether any Board agent would impose such a broad restriction on company management during an election as practically to imprison them in their offices during the voting, depriving them of the use of the plant for normal business purposes, while leaving union adherents who had already voted (like Hebron, Hensley, and others) free to use the cafeteria or roam through the plant , after voting. The Union did not call the Board agent (Mr Levy) to testify on this point Hence, I credit the company version of the agreement as found above 30 I find Greenblatt's conduct from credited testimony of Woods, Hebron, and Hensley, as corroborated in part by admissions of Greenblatt Testimony of the latter at variance therewith is not credited. MONROE MANUFACTURING COMPANY 73 Freeman was standing at her desk in the plant, but not near the voting line, and she did not talk to anyone in the line.3i During the voting period, while the voting line extended past the reception desk into the factory, Golda Deener, office manager for both the Employer and Cameo Curtains, the parent company of the Employer, and in charge of the Cameo office staff at the plant, left her office adjacent to the lunchroom area, walked down an aisle along one line of offices32 to the reception desk where she handed a telegram to the receptionist to send out, and then returned by the same route to her office . On that trip, while passing Greenblatt's office, the last in the line, and approaching the reception desk , she walked twice within about 5 feet of the line of voters . These movements are found from mutually corroborative testimony of Hebron and Jordan, and admissions of Deener. The two union witnesses also testified that on her way to the desk, Deener spoke to several voters in the line as she passed close to it, but not on her return journey. Neither witness could recall to whom she spoke, or what she said to them. Deener categorically denies any talk to workers in the line. Her denial is supported by Barbara S. Roberts, then receptionist for Cameo, who says that she watched Deener both ways, and that Deener brought a telegram to her and returned to her office without speaking to anyone but Roberts. Hebron also testified that later in the voting period, Deener again came out of her office, and went down the aisle through the voting line to go to the ladies' restroom (which is located to the right of the reception desk in such a position that one coming from the offices must go through the voting line to get to it), and that after leaving the restroom, Deener went into the lunchroom area for a cup of coffee (apparently breaching the line again), where she chatted about 5 to 10 minutes with some man sitting there, and returned to her office , but did not speak to anyone in line on this occasion. Deener denies the second trip entirely. As between the story of Deener, presumably a partisan company official and that of union partisans Hebron and Jordan, I accept Deener's version for several reasons : ( 1) Her testimony appeared straightfor- ward and sincere , and is supported by the only disinterest- ed witness, Roberts, who has long been out of the employ of the Employer, and whose demeanor and straightforward adherence to her testimony under vigorous cross-examina- tion impressed me that she was telling the truth; (2) I consider it more likely than not that Deener left her office once to send the telegram in the normal course of her work, without making any remarks to anyone in the voting line, because her job as a Cameo employee involves much telegraphic communication and is mainly to oversee records and statistics of production of the Employer for Cameo, and she apparently has minimal contact with actual production and employees in the plant ; and (3) the rather limited testimony of the union witnesses which in general terms placed Deener as speaking shortly only once with an unknown number of unidentified employees, coupled with Hebron's last minute attempt to enlarge Deener's mere contact with the voting line by his story of the bathroom trip, which I have discredited, persuades me that the Union was trying to convert a normal business activity of a company official not in conflict with the preelection agreement into an apparent "pollution" of the election atmosphere much greater than that stated in Objection 7. In arguing the issue, both parties rely on Milchem, Inc., 170 NLRB 362, where the Board recently delineated the standards of conduct to be followed by parties during the voting period in a Board election. In order to maintain the purity of the election process, it ruled that parties to the election must refrain from any conversation with prospec- tive voters waiting to cast their ballots in the voting area or the voting line, and that violation of this rule by either party, regardless of the content of the remarks exchanged, will in itself be ground for setting aside the election. The Board in that case applied the rule to set aside an election where a union agent engaged prospective voters in conversation for several minutes near the voting line. The Board set forth its rationale for the rule as follows (170 NLRB at p. 362): ... Careful consideration of the problem now convinces us that the potential for distraction, last minute electioneering or pressure, and unfair advan- tage from prolonged conversations between representa- tives of any party to the election and voters waiting to cast ballots is of sufficient concern to warrant a strict rule against such conduct, without inquiry into the nature of the conversations. The final minutes before an employee casts his vote should be his own, as free from interference as possible. Furthermore, the stand- ard here applied insures that no party gains a last minute advantage over the other, and at the same time deprives neither party of any important access to the ear of the voter. The difficulties of recapturing with any precision the nature of the remarks made in charged atmosphere of a polling place are self-evident, and to require an examination into the substance and effect of the conversations seems unduly burdensome and, in this situation, unnecessary. Finally, a blanket prohi- bition against such conversations is easily understood and simply applied. This rule is nothing more than a preventive device to enforce the ban against electioneering in polling places normally applied in political elections and in our representation elections. It serves the same purposes of maintaining order and permitting voters to consult their own consciences without interruption. Additional- ly, by attaching a sanction to its breach, the rule assures that the parties will painstakingly avoid casual conver- sations which could otherwise develop into undesirable electioneering or coercion. In our view, the restriction here established gives every promise of having a salutary effect on the conduct of elections and offers no likelihood of abridging the rights of the parties concerned. We intend, of course, that our application of this rule will be informed by a sense of realism. The rule contemplates that conversations between a party and 31 This instance is found from uncontradicted testimony of Hensley, who 32 The aisle is formed by a low railing parallel to the line of offices and observed Freeman from her workplace in the plant after she finished voting separating them from the lunchroom area proper 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voters while the latter are in a polling area awaiting to vote will normally, upon the filing of proper objections, be deemed prejudicial without investigation into the context of the remarks. But this does not mean that any chance, isolated, innocuous comment or inquiry by an employer or union official to a voter will necessarily void the election. We will be guided by the maxim that "the law does not concern itself with trifles." We trust, however, that the parties to the elections, in order to obviate the sometimes troublesome task of defining what is to be considered trifling, will take pains to assure complete compliance with the rule by instructing their agents, officials, and representatives simply to refrain from conversing with prospective voters in the polling area. I find nothing reasonably tending to taint the election atmosphere in (1) the mere presence of Levinson and Heimberg for a few seconds near the voting line while obviously waiting for union officials to leave the voting area; (2) the silent presence of Nell Freeman at her factory desk at a point removed from the voting line; (3) the mere presence of Greenblatt and Heimberg in the plant at points removed from the voting line, in pursuance of normal management activities which may have involved talks with employees not in the line; or (4) the single action of Deener in leaving her office to send a business telegram without speaking to voters in the lme.33 I must find, however, that Greenblatt violated the preelection agreement found above by accosting three new employees to advise them they were not eligible to vote. Respondent claims his remarks were minimal and innocu- ous. In one sense, his conduct appears to be a mere technical violation, as his action apparently conformed to the eligibility list agreed on by the parties beforehand, and did not deprive the Union of votes which might have added to its recorded total.34 Further, it is fair to assume that the witnesses who heard Greenblatt talk to one or more of the girls, and presumably other workers in line nearby heard him discuss only the girls' eligibility to vote; there is no proof that he was electioneering. However, under the rule of Mrlchem, Inc., supra, I cannot consider his remarks and actions as a casual, trifling, or innocuous matter. His mere presence at the line, while discussing only a matter of election eligibility with several workers, but without the presence of a union agent or the Board officer conducting the election, violated the rule. While it was not last minute electioneering, his words and acts might well convey to other voters the impression that the Employer 33 As the preelection agreement in terms and purpose was designed to prevent improper electioneering in the supply room, which was the well defined voting area, or at the voting line where it extended into the lunchroom or factory areas, it would appear that presence of company officials in the factory area or lunchroom area at points distant from the voting line, in course of their normal business or rest activities, is not sufficient to warrant setting aside the election Serv-Au, Inc, 183 NLRB No 32 This type of conduct also falls outside the type of conduct prohibited by the rule of Mrlchem, Inc., supra See Stevenson Equipment Company, 174 NLRB 865, 867, Columbia Casuals, Inc, 180 NLRB 741, 752, Thomas Cartage, Inc, 186 NLRB No 30; Gary Aircraft Corporation, 193 NLRB No 21 34 The Union does not claim that any of these girls, one being Bernice Arnold, were improperly excluded from voting by Greenblatt 35 See also V,tronic, Incorporated 183 NLRB No 103 In Modern Hard Chrome Service Co, 187 NLRB No 11, the Board explained that its had some effective connection with, if not control over, the election itself, insofar as Greenblatt appeared to be making an apparent official ruling which excluded employees from voting. This impression would tend to be strengthened by his open discussion with Arnold; Greenblatt testified without contradiction that when she asked about her own eligibility, he said he was not sure, as he did not have the voting list with him, but he called his office to have the list checked, and then reported to her that "they" said she was not eligible, so he then excused her and told her to go home. This incident alone would strongly suggest to nearby voters that management itself, as distinguished from the Union, was acting in some manner for or in concert with the Board official in the conduct of the election. Greenblatt was obviously a man of education and high intelligence, so it would have been a simple matter for him to dispel any such impression, even if he desired to see that ineligible employees did not waste their time standing in line, by contacting the Board agent directly, preferably in the presence of a union representative, and secure his official ruling on the noneligibility of the three, so that both he and a union agent could advise them of their status. It would also have been simpler for him to remain silent and leave their eligibility to be settled by challenge from company or union observers, which was done in the case of three other voters. The fact that he did none of these rather obvious things makes his deliberate action that much more reprehensible. I therefore find that Green- blatt's remarks and action regarding the three new employees violated the Milchem rule and was sufficient to warrant setting aside the results of the election.35 I recommend that Objection 7 be sustained in this respect.36 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II above, occurring in connection with Respondent's opera- tions described in section I above, have a close, intimate, and substantial relation 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 in Case 26-CA-4071 that Respondent has engaged in various unfair labor practices in violation of Section 8(a)(1) of the Act, I will recommend that it be Mrlchem rule is not limited to cases of proven electioneering actions and statements, but also covers situations where an election observer talked to voters as they approached the voting table, using words beyond "a mere hello," in violation of admonitions of the Board election official, and even went so far as instantly to offer a prospective voter money to buy a dunk, when the employee casually remarked that it was hot and he wished he had a beer The Board held such conduct clearly violated the bar on electioneering, noting that a single vote might have swung the election the other way In the case at bar, the Union lost the election by four votes (three challenged ballots would not have affected the result), so it is a fair inference that Greenblatt's quasi-official remarks and actions at the voting line might well have had a last minute effect on more than four voters who may have heard and seen him 36 In view of the above rulings sustaining Objections 5 and 7 in some respects, I find it unnecessary to consider or make findings on other aspects of the Employer's conduct shown in the record. MONROE MANUFACTURING COMPANY 75 ordered to cease and desist from such conduct; since the violations include interrogations of employees, threats of loss of jobs through plant closure, discharge, and reduction of benefits, if the Union came into the plant, and conduct giving the impression of coercive surveillance, the order should be in broad form. Having found record evidence in Case 26-RC-4059 sufficient to sustain Objections 5 and 7 to conduct affecting the results of the election, I shall recommend that the election of October 14, 1971, be set aside. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. By interrogation of employees about their union activities and sentiments , remarks creating the impression that employees' union activities were under surveillance, threats of imposition of more strict working conditions, and of loss of jobs through discharge or closure of the plant, if the Union organized the plant, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. 3. Respondent has not engaged in actual surveillance of employee union activities or meetings, threatened to give any employee "a hard time" because of his union activity, warned employees against use of restrooms for union activity, or questioned them about how they would vote in a Board election, in violation of the Act, as alleged in the amended complaint. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 37 ORDER Respondent, Monroe Manufacturing Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees in a coercive manner about their reasons for wanting a union and their union activities. (b) Giving employees the impression that it is keeping their union or concerted activities under surveillance. (c) Threatening employees that it will impose more strict working conditions upon them if they chose the Union as their bargaining agent. (d) Threatening employees that the plant will be closed if the employees chose the Union as their bargaining agent. (e) Threatening employees that they would be discharged if they engaged in union or concerted activities. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant in Memphis, Tennessee, copies of the attached notice marked "Appendix." 38 Copies of said notice, on forms to be provided by the Regional Director for Region 26, shall, after being duly signed by an authorized representative of Respondent , be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted . Respondent shall take reasonable steps 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 after receipt of this Decision, what steps Respondent has taken to comply herewith.39 IT IS FURTHER RECOMMENDED that the amended com- plaint in Case 26-CA-4071 be dismissed with respect to the allegations of paragraphs 7, 8, 11, 12(b), 13, 15, 16, and 20 thereof. IT IS FURTHER RECOMMENDED in Case 26-RC-4059 that Objections 5 and 7 to conduct affecting the results of the election be sustained , and that the election of October 14, 1971, be set aside, and a new election held by said Regional Director at a proper time. 37 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 38 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 "i•osted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 39 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 herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice, and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with or restrains or coerces our employees in the exercise of these rights. WE WILL NOT interrogate our employees in a coercive manner about their reasons for wanting a union or about their union activities. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT give our employees the impression that we are keeping their union or concerted activities under surveillance. WE WILL NOT threaten our employees that we will impose more strict working conditions on them if they choose International Ladies' Garment Workers ' Union, AFL-CIO, or any other labor organization , as their bargaining agent. WE WILL NOT threaten our employees that our Memphis plant will be closed if they choose the above- named Union or any other union as their bargaining agent. WE WILL NOT threaten employees with discharge if they engaged in union or concerted activities. Dated By MONROE MANUFACTURING COMPANY, INC. (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.