Isaacson-Carrico Manufacturing Co.

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Isaacson-Carrico Manufacturing Company and Texas District Council, International Ladies Garment Workers Union, AFL-CIO Cases 23-CA-3790, 23-CA-3895, and 23-RC-3498 December 6, 1972 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 7, 1972, Administrative Law Judge' Bernard J Seff issued the attached Decision in this proceeding Thereafter, the General Counsel, Re- spondent, and the Charging Party filed exceptions, Respondent filed cross-exceptions, and the General Counsel and Respondent filed briefs 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith We agree with the Administrative Law Judge that Respondent, by laying off 11 of its employees on August 26, 1970, and by failing to reinstate certain other employees at the conclusion of the strike which ended on February 15, 1971, did not violate Section 8(a)(3) and (1) of the Act We also agree that Respondent's objections to the November 6, 1970, election should be overruled and that the Union should be certified as the bargaining representative for the employees in the unit We do not agree, however, with the Administrative Law Judge's disposition of certain Section 8(a)(1) violations alleged in the complaint 2 On August 24, 1970, Supervisor Zapalac spoke to employee Jaksch and asked if she had attended the union meeting the previous day Zapalac also asked how many employees were present at the meeting, who the union organizers were, where they came from, and what promises these organizers had made We find that by this conduct Respondent violated Section 8(a)(1) as alleged in the complaint On the same day Supervisor Zapalac had a i The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 Respondent s original exceptions related only to the Administrative Law Judges overruling its objections in the representation case After exceptions were filed to the Administrative Law Judge s dismissal of the complaint Respondent sought permission to file cross-exceptions to the Administrative Law Judge s findings in the unfair labor practice case to the effect that Supervisor Sauers engaged in conduct violative of Section 8(a)(l) conversation with employees Kutach, Luco, Benavi- dez, and Morton Zapalac asked how the union organizational campaign got started, how the em- ployees had managed to keep the matter quiet so long, and what benefits the employees hoped to obtain The Administrative Law Judge found that because Zapalac was a low level supervisor and, because she was a personal friend of these employ- ees, her conduct did not violate the Act We disagree Interrogation is no less coercive merely because it comes from a friend Accordingly, we find that by this conduct Respondent violated Section 8(a)(1) Again on August 24, Supervisor Nowlin ap- proached employee Benavidez who had a union authorization card lying next to her place of work Nowlin asked if Benavidez had signed the card or had otherwise joined the Union Contrary to the Administrative Law Judge, we find that this conduct violated Section 8(a)(1) Around the same time, Supervisor Foltyn ap- proached employees Luco, Kutach, and Jaksch, who were standing outside the plant, and asked what the employees thought they would gain by joining the Union Unlike the Administrative Law Judge, we find that this conduct constituted interrogation in violation of Section 8(a)(1) CONCLUSIONS OF LAW Based upon the Administrative Law Judge's findings of fact and on the record as a whole, we substitute the following conclusions of law for the Administrative Law Judge's conclusions of law 1 Isaacson-Carrico Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Texas District Council, International Ladies Garment Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By interrogating employees Jaksch, Kutach, Luco, Benavidez, and Morton, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 5 Respondent engaged in no unfair labor prac- tices other than as found herein Permission to file cross exceptions is hereby granted However, we find Respondent s cross exceptions to be lacking in merit and we agree with the Administrative Law Judge that Sauers engaged in unlawful interrogation of employees on August 24 1970 In so finding we do not rely upon Sauers testimony that she feels an obligation to inform Respondent of the union activity in the plant but rather on the remarks actually made by Sauers to employee Jaksch 200 NLRB No 116 ISAACSON-CARRICO MANUFACTURING 789 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Isaacson-Carrico Manufacturing Company, El Cam- po, Texas, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees concerning their union membership, activities, and desires (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to foam, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities 2 Take the following affirmative action, which the Board finds necessary to effectuate the policies of the Act (a) Post at its plant in El Campo, Texas, copies of the attached notice marked "Appendix "3 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent violated the Act other than as found herein IT IS FURTHER ORDERED that Respondent's objec- tions to the election be overruled 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board' shall read Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees con- cerning their union membership, activities, or desires WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities ISAACSON-CARRICO MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296 TRIAL EXAMINER'S DECISION CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Texas District Council, International Ladies Garment Workers Union, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment STATEMENT OF THE CASE BERNARD J SEFF, Trial Examiner Based on a charge filed on October 21, 1970,1 by the Texas District Council, International Ladies Garment Workers Union, AFL-CIO (hereinafter referred to as the Umon), against Isaacson- Carrico Manufacturing Company (hereinafter variously referred to as the Respondent or the Company), the initial complaint in Case 23-CA-3790 was issued on April 1, 1971 Thereafter a second complaint, Case 23-CA-3895, was issued on May 10, 1971 An election was held on 1 All dates refer to 1970 unless otherwise specified 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 6, 1970, which was won by the Union Timely objections were filed by the Company in Case 23-RC-3498 The Regional Director issued appropriate orders of consolidation and the consolidated case came on for hearing on various dates between July 14 and July 29, 1971, before me in Wharton, Texas In essence the complaints alleged that Respondent engaged in unlawful interrogations, discrmunatorily laid off 11 employees 2 for 2 days, August 26 and 27, and at the conclusion of a strike on February 15 or 18, 1971, the Company did not reinstate 19 strikers who made unconditional offers to return to work Respondent admitted jurisdictional facts but denied the commission of the alleged unfair labor practices Upon the entire record3 in the case, and from my observation of the demeanor of the witnesses while testifying under oath, and upon the briefs submitted by the General Counsel, the Respondent, and the Charging Union, all of which have been duly considered, I make the following FINDINGS AND CONCLUSIONS I JURISDICTION Respondent is a Texas corporation with its principal office and place of business located at 210 East First Street, El Campo, Texas, where it is engaged in the manufacture of infants', toddlers', girls' and Juniors' lingerie, sleepwear, loungewear, and robes During the past calendar year Respondent sold and shipped goods valued in excess of $50,000 from its El Campo, Texas, facility directly to points located outside the State of Texas During the same calendar year Respondent purchased goods valued in excess of $50,000 from enterprises outside the State of Texas, and said goods were shipped directly to Respondent's El Campo, Texas, facility Respondent admits and I find that the employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES Background The Company operates a plant in El Campo, Texas It employs approximately 115 workers, approximately 85 of whom are engaged in production and the balance of whom handle office, design, and shipping functions The work force fluctuates in accordance with Respondent's seasonal operations The Company has a spring and summer 2 Guadalupe Arrambide Selia Benavidez Gladys Bittner Mearlean Farrel Lillian Hahn Evelyn Jaksch Lonne Molina Evelyn Novak, Barbara Otradovsky, Aurora Quintero and Linda Zbranek 3 The record consists of six volumes All volumes were received in due course except for volume III The missing volume was withheld by the court reporter who had a dispute over pay with the reporting service from August season, a fall or back-to-school season, and a holiday season In each of the seasons, new styles are added to correspond to the outerwear fashions of the particular season Respondent designates its employees as permanent or regular, temporary or seasonal, trainees are temporary workers who have never worked for the Company before No previous efforts at unionization have ever been made before approximately August 1970 The Company's super- visory hierarchy is as follows Gerald C Collier President Edwin Richter Vice President and Production Manager Mary Ellen Benavidez Production Coordinator Flonne Sauers Cutting Department Supervisor Cleo Zapalac Day Supervisor Ruby Nowlin Night Supervisor Hazel Foltyn Office Supervisor Sequence of Events Respondent's plant is located in El Campo, a small town in Texas Sometime in June or July 1970, one of the Company's employees, Linda Zbranek, wrote a letter requesting a union representative to call upon her Thereafter a number of meetings were held among a group of employees in their homes The organizational campaign accelerated until August 23 at which time it began in earnest At this meeting AFL-CIO Representative Lopez, together with John Vickers, the Union's International representative, were present at the commencement of active card signing At this time approximately 25 employees signed union cards These 25 employees agreed to serve as the organizing committee and a telegram dated August 23 was sent by the Union to the Company identifying the members of this committee to the Respon- dent A card signing and handbilhng drive began the next day and during the morning and afternoon of August 24 and 25 many employees were approached who signed cards in the street close by the employee entrance to the factory During this period both Lopez and Vickers, together with some members of the organizing committee, actively engaged in this campaign As part of the Union's strategy, on August 24 the Union sent a demand for recognition and bargaining to the Company An additional list of employ- ees described as being active in the Union was also addressed to the Company by telegram dated August 26 It is conceded by the General Counsel that the Respondent did not receive this wire until August 27 The demand for recognition and bargaining was denied by the Respondent By this time, having signed up a large number of employees, the Union filed an unfair labor practice charge against the Company alleging that it represented a majority of the employees and claiming that 12 until October 14 Volume II ends at page 348 There appears to be a gap of 163 pages between the end of II and the beginning of IV A different reporter transcribed volumes IV through VI who did not know where the missing volume III left off This reporter selected page 601 as the beginning of volume IV There are no missing pages in the transcript ISAACSON-CARRICO MANUFACTURING the Respondent refused to bargain with it This charge was dismissed and the Regional Director's dismissal was sustained on appeal by the Board in Washington When the Company became aware of the Union's appearance on the scene it consulted counsel Both the Company's president, Gerald C Collier, and its vice president and production manager, Edwin Richter, deliv- ered speeches to the employees who were assembled in the plant on both the day and night shifts during August 26 These talks expressed antiumon sentiments but the speeches were within permissible legal limits and the General Counsel did not allege in his complaint that the talks were illegal In the course of Richter's speech he made one oblique reference to layoffs but contented himself with the statement that while layoffs were a fact of life in the industry Respondent was attempting to alleviate that problem and hoped to arrive at some reasonable solution to it it is significant to note that despite the allusion to the efforts the Company was making to minimize layoffs, within a short time after the termination of his talk, the Company notified 11 employees that due to "no work" they would be laid off for 2 days, August 27 and 28, but the 11 employees were all instructed to report back to work on Monday, August 31 The timing of these events requires careful scrutiny The Union surfaced for the first time on August 23 Active card signing took place both inside and out of the plant on August 24, 25, and 26 Richter and Collier spoke to the assembled employees on the afternoon of August 26 No intimation was given in the course of the speeches of an imminent layoff Within a very brief time after the conclusion of the talks notice of a 2-day layoff was given to 11 employees At the least the layoffs are shrouded with suspicion The General Counsel argued on the theory that there was no economic justification for the layoffs but they were motivated by the Company's intention to demon- strate to the employees that it had "muscle " In other words being active and/or affiliated with the Union could cost them their jobs and certainly the loss of wages for the 2-day layoff The Respondent contends that it had clear justification for the layoffs which were necessitated by purely economic considerations According to the Compa- ny the plant had become out of balance because there were three bottlenecks at the machines and its supply of lace and trim had run out thus making it necessary to order a 2- day layoff so that it could catch up with its production needs and again provide steady work for the employees The General Counsel takes the position that there was plenty of work consisting of bundles of cut material scattered throughout the plant and it would have been possible to so lay out the work by rearranging work assignments so that no layoff need have occurred when it did A more detailed analysis of the factors relating to the layoff will be set forth infra As later events unfolded, on the day before the I1 employees were instructed to return to work (Sunday, August 30), a mass meeting was conducted by the Union at which time the employees were exhorted to go out on strike in order to compel the Company to sit down and bargain a contract with the Union without the delay which usually 791 takes place while awaiting the mechanics of a Board- conducted election to run their course The strike com- menced on August 31 and continued until February 15, 1971, at which time the Union called off its strike and unconditionally offered to return all employees to work The plant continued to operate during the strike with replacements Subsequently, on November 6, 1970, an NLRB consent election did take place at which the Union was elected by an overwhelming majority of the Respon- dent's employees The Union received 73 votes and 14 votes against it The election was agreed to by the parties based on a stipulation for consent election in Case 23-RC-3498 After sustaining this defeat at the polls the Respondent filed objections to the election in Case 23-RC-3498 In view of the fact that the objections encompassed conflicts in the testimony of certain witnesses , the Regional Director ordered that the "R" case be consolidated with the pending "C" cases and the entire matter was heard by me in a single proceeding The nature of the objections and my conclu- sions as to the facts and the applicable law will be discussed supra in a separate section of the instant decision A Alleged Illegal Interrogation While Evelyn Jaksch was working at the cutting table on August 24 between 8 30 and 9 a in, she had a conversation with Supervisors Cleo Zapalac and Florme Sauers Zapalac asked Jaksch if she had been at the meeting the previous day This reference was to a union meeting Jaksch answered "Yes" and she also volunteered that her name had been on the first telegram sent by the Union on August 23 Sauers asked how long this had been going on Jaksch replied that there had been a number of meetings Zapalac asked how many girls were present, who were the Union guys, and where did they come from Zapalac asked what increase in wages had been promised by the Union Jaksch replied that no promises were made but the Union men indicated what the wages in Respondent's plant should be Zapalac said the union activity had been kept quiet and that nothing had been known about it around the factory Respondent did not call Zapalac as a witness Sauers was called and although she did not deny that a conversation had taken place she said that she did not recall talking to Jaksch about the Union The vagueness of her reply and the clear and direct way in which Jaksch described the conversation persuade me that the conversation did take place and in the manner described by Jaksch In the course of Sauers' testimony she made the following statement I have an interest in the Company I love that Company and I have worked there 20 years And if I feel like they should know something that is going on, I am going to tell them Not only did Sauers indicate by the above-quoted testimony where her allegiance lay but it is clear that she intended to report as much as she knew about the employees' union activity to her bosses The General Counsel contends that this conversation constitutes illegal interrogation Respondent argues that the remarks made by Sauers did not rise to the level of unlawful conduct, that it was a brief informal conversation freely participated in and represents an isolated incident 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that despite Sauers' hazy recollection and her equivocal denial that anything was said about the Union the conversation did in fact take place and in the manner testified to by Jaksch It should be again noted that Zapalac did not testify However innocent some of the comments appear to be, the quoted portion of Sauers' remark that she would report to the company "if she felt that they should know something that is going on, I am going to tell them" is a clear threat to report to the Respondent on the employees' union activities In N L R B v West Coast Casket Co , 205 F 2d 902, 904, the court held Interrogation as to Union sympathy and affiliation has been held violative "because of its natural tendency to instill in the minds of the employees fear of discnmma- tion on the basis of the information the employer has obtained " Sauers' remark represents a clear threat to report on the employees' union activities and is therefore violative of Section 8(a)(1) of the Act I so find During a coffeebreak on the morning of August 24, Zapalac had a conversation with a group of her friends The assemblage included Betty Kutach (one of the prime movers of the Union), Betty Luco, Selia Benavidez, and Jean Morton Zapalac asked how the Union got started and how it was kept quiet so long The employees said some of the girls (without reciting names) began to talk among themselves, formed a committee, held some meetings, and began to have the girls sign union cards It is not clear from the record as to who initiated this conversation It did take place in a friendly atmosphere while the girls were away from their work stations having coffee The testimony also shows that this group of girls were all friends and had been taking coffeebreaks together for a long period of time The advent of the Union was apparently a surprise to the management and to the inexperienced employees and was a topic of great interest to everyone in the plant since it was the first exposure any of the plant personnel had to any labor union Zapalac, who is at the lowest rung of the supervisory hierarchy, was naive enough to ask if she could join the Union She was told she could not because she was a supervisor The General Counsel argues that this conversation constitutes illegal interrogation Respondent claims this informal talk, among friends in circumstances where the atmosphere was relaxed and where there was no threat of reprisal, was innocuous and not violative of the Act The Company further points out that Zapalac asked "how" the Union had its genesis and not "who" started the Union Under all the circumstances surrounding this incident and the further fact that interrogation is not a per se violation of the Act, I agree, find no illegal interrogation, and recommend that this allegation in the complaint be dismissed After the close of the shift at 3 30 p in when employees Kutach, Luco, and Jaksch were outside the plant , the office supervisor, Hazel Foltyn, asked Luco to come to the side door Foltyn then left the plant and asked the group what the girls thought they would gain by joining a union She said the girls were earning $1 60 per hour, what more could they expect? Foltyn stated that the Respondent could not grant greater work benefits than it could afford Foltyn then laughed and said she thought the whole situation was hilarious The girls said they were serious about the Union-it was not funny Foltyn remarked that "the employees had come to the Company for ajob and it was not the Company coming to the employees for ajob " That concluded this verbal exchange The General Counsel takes special exception to the last quoted statement contending that it represents a veiled threat of discharge In the context of the circumstances and actual words used dunng this incident, it appears that the General Counsel's interpretation of Foltyn's quoted remark is strained and not what a reasonable person would draw from the words spoken I therefore find no violation in said incident and recommend that this allegation be dismissed On August 24 employee Irene Benavidez had a conversa- tion during the night shift with her supervisor, Ruby Nowlin Benavidez had a union card next to her sewing machine Nowlin asked if Benavidez had signed the card, Benavidez testified she replied "yes" and then said most of the girls were signing Nowlin in her testimony stated Benavidez answered Nowlin's question "no " I do not regard this apparent conflict as being significant Either way Nowlin followed her first question with a second one asking if employee Margaret [Garcia] told her most of the girls were signing to which Benavidez said it was not Margaret but two other ladies Nowlin admitted that she asked another employee, Hedy Starling, if she had signed a union card The General Counsel contends that such questioning constitutes illegal interrogation Respondent characterized the incidents concerning Nowlin as isolated questions carrying no threat or special import I agree and conclude that the questions were not put in a threatening manner and do not add up to illegal interrogation I recommend that this allegation in the complaint be dismissed Admittedly, if the atmosphere in the factory had been charged with Company union animus, some of the remarks relied on by the General Counsel as evidence of illegal interrogation might be considered to be borderline viola- tions of the Act No such situation exists in the instant case The single violation which I have found concerns the threat of Sauers to report employee union activities to her superiors Apart from this single illegal interrogation, the totality of the evidence in the record does not reveal a pattern of proscribed interrogation B Alleged Discriminatory Layoff of 11 Employees 1 Background and further details concerning the layoff Passing reference has already been made to the circum- stances surrounding the layoff of 11 employees on August 27 and 28 in the sequence of events section of the instant decision supra Approximately 75 percent of the Company's production consists of the manufacture of sleepwear In addition to this merchandise the Respondent also manufactures a so- called panty line The panty line goes through a standard- ized process This work composes approximately 25 percent of the Company's products Sleepwear garments ISAACSON-CARRICO MANUFACTURING 793 are fashion goods which require the use of many specialty machines which only certain operators are trained to use The laid off employees were engaged in the fabrication of sleepwear The majority of the laid-off employees were designated on its records as trainees It is Respondent's usual practice to hire a large number of new employees who had in the past been seasonal operators who had not progressed to the status of permanent workers Employees hired as trainees are told they are filling temporary positions If there are openings for permanent or regular operators at the end of the season (around Thanksgiving) and if they have demonstrated their efficiency, they may be offered a regular job Those not retained are laid off Respondent testified that most of its business is done with department stores Manufacturing for the fall or busy season usually begins in May depending on the availability of materials Department stores have a fixed policy that fall season fashion goods must be shipped no later than August 25 The Company's orders have automatic cancellation provisions which spell out that orders are cancelled if the merchandise is not shipped by August 25 As a conse- quence of these facts the Company's brief explains, "thus it was not abnormal for periods of heavy overtime in early to mid August to be followed by short layoffs and, in fact, this typical situation once again occurred in August 1970 " During the period in question, Respondent ran short of trim and lace4 and this, together with bottlenecks at the piping machines, safety stitch and shirring machines, interfered with the flow of production and necessitated a brief layoff in order to get the factory back into sequence The General Counsel's brief sets forth a detailed statement concerning the 11 employees who were laid off By reference to a large number of IBM computer printouts the General Counsel seeks to demonstrate that there was no business need for the layoff which commenced on August 27, 1970 By listing the number of jobs to be performed, the number of hours of work this would require, the machines upon which the work would be performed, the operators who would or could perform them, and the styles of merchandise involved, it is argued that no layoff need have taken place when it did The General Counsel states that there was an abundance of work to be done throughout the plant and the Company was in the midst of its busy season In addition, the layoff took place within 2 or 3 days of the commencement of the Union's organizational campaign It was asserted that layoffs in past years did not take place in August In support of this position the General Counsel relied on the testimony of a number of witnesses who stated that while layoffs did occur from time to time they could not recall that such events took place in August Respondent countered this testimony with evidence from Collier, Richter, Production Coordinator Mary Ellen Benavidez, and a number of sewing room operators Benavidez testified that she has been working for Respon- dent and its predecessor for 17 years During this period she said it was a regular and frequent occurrence that layoffs were ordered and took place during the second and third week in August Benavidez testified in a forthright, direct manner and her recital had the ring of authenticity I credit her version concerning layoffs because she im- pressed me with her intimate knowledge of the operations in the plant and her candor and demeanor while on the stand On the other hand, General Counsel' s witnesses were vague and uncertain in urging that, as far as they remembered, there never were layoffs during August because that was the Company's busy season and there was plenty of work at the sewing machines throughout the plant during the days in August in question Further, Benavidez was in a much better position to know the situation at first hand because her major responsibility as production coordinator was to keep the factory operating at its maximum capacity With respect to the amount of goods which admittedly was piled up around the machines and which the General Counsel emphasized as a major basis for his conclusion that layoffs do not occur when there is work to do around the machines, Benavidez testified trenchantly that if a time ever came when there was no merchandise in the factory to be fabricated the management would have to lay off all the employees The thrust of President Collier's testimony on this point was to the effect that the problem of attempting to avoid layoffs is a perennial matter of concern not only to him but also to his competitors It hardly needs argument to understand that layoffs slow down production and thus reduce profits Richter, for his part, has the special responsibility as plant manager to attempt to avoid layoffs as far as this is possible and the best production record that he can achieve redounds to his credit as an efficient plant manager It should also be added that both Collier and Richter favorably impressed me as truthful and direct witnesses both of whom had firsthand knowledge of the facts as to the plant's efficiency in operation and the past history of layoffs Both the General Counsel and Respondent devote considerable verbiage and pages in their briefs to the question as to who among the I1 workers were known to the Company as being union adherents The record supports my conclusion that many, if not almost all, the layoffees had signed up with the Union It seems clear that Respondent was not influenced in making the layoff by selecting workers for a 2-day layoff based on membership or nonmembership in the Union Whoever was laid off would have had to have been identified with the Union since most of the employees were members of the organization 2 The strike was not caused by the layoff In the course of the well attended general meeting of the employees on Sunday, August 30, 1970, both union representatives, Lopez and Vickers, exhorted the employ- ees to go on strike They stated the basic underlying reason for the strike was to exert pressure on the Respondent to promptly recognize the Union and agree to a collective- bargaining agreement granting immediate economic bene- fits to the employees They also pointed out that the 4 The necessary lace is known as wide cluny lace The record shows that this material was not available on August 27 and August 28 It aid not arrive at the plant until September 2 and September 10 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD workers were in a good position to accomplish their objectives by striking at a time when the Company was in the midst of its busiest season It was also explained to the workers that they would lose their advantage if they waited for the Board to conduct an election because of the amount of time it takes for the NLRB machinery to grind out a decision ordering an election The record contains other compelling evidence that the Union had decided to pull the workers out on strike prior to the time any layoffs took place The Union had ready for immediate distribution printed ballots to expedite a vote in favor of a strike at this general meeting These ballots were prepared and printed before the Umon had knowledge of the layoffs It appears indeed that the layoffs did not occur until after the ballots had been printed It is significant to point out that neither Lopez nor Vickers mentioned the layoffs during the course of their talks from the rostrum urging the employees to vote to strike This is so even though the record indicates that after the general meeting was over, and the strike had been overwhelmingly voted, Lopez engaged in informal talk with a small group of the employees at which time he was told about the layoffs and he remarked that the strike was an unfair labor practice strike caused or contributed to by the layoffs It should also be noted that Lopez, in an interview which took place some weeks before the organizational campaign moved into high gear, made some comments to the local El Campo newspaper that if a strike did take place among the Company's employees that such an event would be to their advantage Furthermore there is testimony in the record, which I credit, that the union representative, Sarah Calvert, who was not assigned by the Union to the case until a considerable time after the workers were on strike, said that if anybody questioned the people about the strike to answer that it was caused by Respondent's unfair labor practices In view of the above facts it is fair to infer that the underlying union strategy was to take the people out on strike to compel the Company to sign a quick contract and this predetermination was the cause of the strike The layoffs were not causative but were pretextually seized upon by the Union to make it appear that the strike was an unfair labor practice strike from its inception 3 The economic justification for the layoffs The General Counsel devotes considerable space in its brief to an analysis of certain computer printouts in an attempt to demonstrate that the Company's explanation for its' reason for the layoff does not hold water It is therefore concluded that if these reasons, taken from the Respondent's own production records, present no econom- ic necessity for the layoffs, it was in fact motivated by antiunion considerations Respondent, for its part, also expatiates at great length in its brief on its interpretation of the said computer printouts Needless to say, the Company reaches an opposite view on its records and concludes that the computer material supports its contention that the layoffs took place for purely economic reasons The 11 employees involved in the layoff are as follows Guadalupe Arrambide Lorene Molina Seha Benavidez Evelyn Novak Gladys Bittner Barbara Otradovsky Mearlean Farrel Aurora Quintero Evelyn Jaksch Linda Zbanek Lillian Hahn Six of these women are listed on the Company 's records as trainees The balance are regular employees The General Counsel states that Arrambide worked mainly as a clipper She also acted as a floating employee to the finishing department, the production department, and the cutting department On August 25 and 26, she was laying material in the cutting department According to the testimony of employee Luco, the cutting department on some days during this period was working 9 hours a day Based on this information the General Counsel asserts that there was plenty of work available for Arrambide during August 27 and August 28 The Respondent countered that Arrambide was hired as a trainee on August 5 Whatever work was required was being performed by regular and senior employees Diana Coy, Estella Arrambide, Hilda Kubens, and Mary Rees When the cutting work ran out, the two employees who had been laying material were laid off From the above it appears that Respondent 's explana- tion for the laying off of Arrambide and Quintero indicates that it was nondiscriminatory and based on economic reasons and I so find Sella Benavidez and Barbara Otradovsky (a trainee hired June 17) did shining work The General Counsel states that the Company claimed shirring yokes was one of the production bottlenecks On August 27 Ardie Collins, Anita Gonzales, and Pat Arrambide were performing shirring work Kutach was the only employee qualified to do yoke shining Respondent had only three day shift employees performing the bottlenecked shining work The General Counsel contends that the layoff of Seha Benavidez and Otradovsky, who were capable of doing this work, is inconsistent with meeting production requirements in attempting to alleviate the bottleneck On August 27 Ardie Collins, Anita Gonzales, and Pat Arrambide were engaged in shining work Kutach was the only employee qualified to do yoke shirring According to the General Counsel there was sufficient work for Sella and Otravosky on August 27 There was no necessity, due to lack of work, to lay off these employees and he therefore concluded that their layoff was discrimi- natory Respondent states that Seha's primary work was average shining and this work was so slack during the week of August 24 that Sella did none of it Seha's number two operation was the one needlework on which she was engaged prior to her layoff There were only 33 total hours The regular operator, Ardie Collins, who was the Union's chairlady, was one of the employees retained on this operation Both Sella and Otradovsky could perform only three of the available operations and between them there were only 6 hours of work This work was retained for regular employees Ardie Collins and Anita Gonzales Other regular employees who perform similar job code 2 work included Betty Kutach, who passed out union ISAACSON-CARRICO MANUFACTURING 795 literature in the street on August 24 and Natividad Reyes who, like Kutach, was elected a "picket captain " These more senior regular employees, despite their obvious union adherence, were retained for the available work rather than trainee Otradovsky Otradovsky was scheduled on August 31 to work on garments which first needed a one needle tuck In order to provide work for Otradovsky, regular employee Sofia Bustamonte performed the one needle tuck operation during the 2 days of the layoff From these facts Respondent contends that the layoff of Sella and Otradovsky was based on sound business practices which came about because there was insufficient work for these two employees on the 2 layoff days in question This explanation seems reasonable and I there- fore find that Sella and Otradovsky were laid off for legitimate business reasons Gladys Bittner The General Counsel argues that there was ample work for Bittner on August 27 According to Respondent, Bittner's number one operation was doing average one needle lockstitch work and her number two operation involved the use of the number 40 machine which was also operated by Paula Romero Mary Ellen Benavidez testified that no work was available for Bittner on her number one operation but work was available on the number two operation This work was being saved for Romero because she was a regular employee and Bittner was a trainee who was hired on June 23 The General Counsel points out that Bittner spent half her time operating the number 24 machine and the remainder operating the 72 machine The exhibit relied on to demonstrate these facts also shows that Gladys Bittner and Paula Romero were the only two employees qualified to operate this single number two machine which had 7 hours of available work on the evening of August 27 The General Counsel claims that there was no reason to save job code 72 work for Romero because there was work for her to do on other machines General Counsel reasons that there was a bottleneck occurring at the number 54 piping operation and to relieve this blockage two other employees, June B and Viola J , would have been assigned to this work during the day shift In view of the fact that Lillian Rodriguez on the night shift was the only employee in the plant capable of doing the 7 hours of work available on job code 80 machine, obviously she would have been assigned that work This would leave only Paula Rodriguez to perform the available 12 hours of work on the 57 machine Based on this appraisal the General Counsel concludes that Bittner, at the beginning of the evening shift on August 27, had a mimmum of 7 hours of work to do on the job code 72 machine It is further stated in his brief, General Counsel's exhibit number 12, that additional job code 72 work would have been available as production progressed through the day of August 27 In addition there would have been work which Bittner could do on the job code 24 machine There was ample work for that machine during the day and Bittner and Joyce D were the only night shift employees qualified to operate those machines Bittner would have been the logical choice to perform job code 24 work on the night shift because Joyce D was the only one qualified to operate job code 32 on either of the two shifts and there was work available at that machine For all these reasons the General Counsel urges the Trial Examiner to find that there was work for Bittner to do on the evening shift on August 27 Respondent points out that Bittner did the same type of number one needle work as Sella Benavidez This work was running low and since, like Sella, Bittner was unable to perform all of the operations which would have been available on the morning of August 27, it was unnecessary for her to do this work While Bittner could do more of the operations than Sella, work was sufficiently slack in this operation so that regular employees such as Ardie Collins could handle it Bittner's second operation involved a number 40 machine which took care of insertion work Paula Romero, a regular employee , did the necessary insertion work on August 27 and 28 in order to provide work further along the production line for Sella and Bittner on August 31 It appears from the above that there was insufficient work for Bittner to perform on the days in question and therefore her layoff for 2 days was justified for business reasons I so find Continuing with the General Counsel's argument with respect to the other of the 11 laid-off employees, his brief states that Hahn, Novak, and Benavidez were regularly assigned to the flat sergers, job code 1 , Zbranek was regularly assigned to a zigzag shirrer, job code 58 , Jaksch had as a regular assignment the operation of a zigzag strap machine, job code 56, and the General Counsel states in his brief that she was capable of operating the one needle boxer label machine, job code 27 For night shift employees, General Counsel's exhibit 11 shows that Mearlean Famel was primarily assigned to a flat serger,_job code 1, Molina was principally assigned to a back tack machine, job code 90 The General Counsel asserts that she was capable of operating the flat sergers There is a direct conflict in the testimony of employees with respect to the amount of flat serger work which was available on the days in question The General Counsel takes the position that Respondent attempted to create the false impression that there was very little flat serger work to be performed on August 27 and 28 He argues that the record evidence is contrary to this assertion On the other hand, Mary Ellen Benavidez, whose testimony in my opinion is to be accorded special weight because of her firsthand knowledge of the total production picture in the plant and because she made an excellent impression as a forthright witness, stated repeatedly from the stand that there was very little flat serger work to be worked on during the 2 days in question Based on his analysis of the record evidence, the General Counsel alludes to certain of Mary Ellen Benavidez's testimony that those employees who were laid off could do flat serger work and were qualified to do in excess of 40 of the available 181 hours of this work The General Counsel also argues that Respondent is estopped from claiming that after the 181 hours of work had been performed there would be little, if any, additional flat serger work available The first four pages of General 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel's exhibit 14 shows that for the garments in production on the morning of August 27 a total of 878 hours of flat serger work was needed to complete those garments Although this includes the 181 hours, it still represents a substantial amount of work to be performed by a few employees It is further claimed that the evidence is contrary to the position that flat serger work in excess of the 181 available hours would not have been available until Monday, August 31 General Counsel's exhibit 12 shows, as of the time of the layoff, the various styles of garments in production, the number of dozens of each style in production, and the remaining jobs in sequence necessary to complete the various garments From the exhibits referred to and attachment B to General Counsel's brief, the documents show that there would have been an additional 66 hours of flat serger work available after only 7 hours of production time on the 27th Before elucidating Respondent 's replies to the averments of the General Counsel set forth supra, it would be helpful at this juncture to explain the role played by Mary Ellen Benavidez in the Company's production process as set forth in Respondent's brief The initial state of placing goods in production consists of the issuance of a so-called "cutting deal" This is an internal paper transaction whereby Edwin Richter issues a piece of paper showing the style number, colors, size breakdown, and number of dozens to be cut of particular styles The cutting deal goes to the computer department where the master tickets are prepared and sent to the production area The Company considers that a style has gone into production once a deal has been issued Thereafter production is coordinated by Mary Benavidez through the use of several tools The master ticket is marked to indicate which operations have been completed and those that remain to be done Benavidez also utilizes a daily schedule sheet containing the names of all operators After making a tour of the production area and a comparison of the master ticket, she is able to schedule work for the operators and style numbers to be performed that day From an examination of the daily chart the floor girls distribute the work Through observation of the actual operations and a review of the master tickets, Benavidez can often detect production problems due to bottlenecks or shortages of fabrics, trim, or laces As had regularly occurred in the past such production problems once again arose in mid-August 1970 During the week of August 21, cutting deals were issued for approxi- mately 1500 dozen sleepwear garments Of the 1500, 600 to 700 dozen were of red nylon which was available This red nylon was for styles known as the 16 and 18 series, all of which required basically the same operations Every one of the 600 to 700 dozen in the 16 and 18 series required the same piping trim around the yoke There were only two machines and three operators capable of performing the necessary piping operation The Company was thus limited on these styles by available machinery and simply could not apply the piping fast enough to keep the series flowing into other operations A similar problem was created by the influx of about 700 dozen quilted and flannel styles which, because of the heavy fabric, required a wide seam applied by a safety stitch machine of which the Company had only three Additional production coordination problems were created by the fact that the print fabrics for the holiday line had not yet been delivered and certain trims and laces also had not been received During the week prior to the layoff , the 16 and 18 series arrived on the production floor Each garment of this style required a zigzag piping for which there were only two machines available By the end of August 26 practically all of the easy or flat serger work required for the 16 and 18 series had already been completed and very little of such easy work was available on August 27 and 28 The nature of the bottleneck is shown by two General Counsel exhibits which reflect that while 127 hours of the zigzag operation were required to complete the garments, only 23 hours of such operation were available at the commencement of work on the morning of August 27 While there was a continuing stream of work beginning to flow through this operation there were only two machines available to handle the flow Similarly a bottleneck was forming in the safety stitch operation on the morning of August 27 All quilted robes and flannels then in production had to go through a safety stitch operation for which there were only two available machines There were only 39 hours of work available for this operation at 7 a m on August 27 and 28 as 342 hours of work of the safety stitch operation were necessary in order to make these garments ready for successive operations The 70 series which was in production at this time needed a lace which had not yet amved and had reached the point where it had come to a virtual standstill The Company had already jumped a sequence or two on this series in order to keep the employees busy The jumping of a sequence is not a favored practice and cannot be done with every style or operation It was done with the 70 series to keep the operators busy Mearlean Famel Mearlean Famel was hired on June 15 as a trainee Respondent claims that her number one operation was the setting of collars During the week of August 24, only about 40 percent of the styles going through production had collars Work flowing through the collar setting operation had become so slack that she was not doing her regular job on the evening of August 26 She was being switched from job to job to keep her in work During August 27 and 28 while Famel was off, a regular employee, Juanita Gonzalez, was being used to do whatever collar work was available In addition an eyelet operation which Famel was not qualified to perform was needed before additional collar work would be available for Famel In point of fact, a regular employee, Mildred Veselka, was performing the eyelet operations on August 27 and 28 in order to prepare sufficient garments for Famel to work on upon her return on August 31 It is argued by the Company that two regular employees were retained rather than Famel who was a trainee, and the work being done by them was for the purpose of providing work for Famel Famel indicated that there was work which could have ISAACSON-CARRICO MANUFACTURING 797 been done by her Famel's number two operation involved easy serger work, the majority of which had already been completed on the 16, 18, and 70 series Whatever small easy serger work remained to be done was handled by regular employees except that in one case a trainee, Diana Quintero, had to be retained so that she could perform a prefatory operation which had to be completed so that Jaksch, who was laid off, would have work when she returned to the plant on August 31 Lillian Hahn Hahn was hired as a trainee on July 7 Her number one operation was easy serger flat work of which there was little to be done as explained supra Many of the trainees fell in this same area Thus a trainee was laid off for 2 days while regular employees were retained to do the available work Evelyn Novak Respondent's brief states that Novak was a trainee who was hired on July 8, and had not yet trained for any secondary operations There was not enough serger work available which this employee could perform If she had returned to work on August 31, she was scheduled for easy serger work on quilted robes Before she could do this work, the shoulders and sleeves had to be set in and closed A regular employee, Dorothy Vengler, did this work on August 27 and 28 and she had seniority that dated back to 1965 Lorme Molina total lack of work in Zbranek's operations and the Company's willingness to retrain her in order to keep her in work, it can hardly be said that Respondent had any discriminatory motives concerning this employee " Evelyn Jaksch Jaksch was a regular employee who was responsible for a specialized operation known as the setting of straps and the attachment of trip on adjustable slip straps, job code 56 She was the only employee who performed this operation Her secondary operation, job code 28, involved a similar operation on built-up slip straps There was no work in either of these jobs There was still none of this work anticipated for August 31, and upon her return from layoff, Jaksch was scheduled to perform a neck binding operation on the 16 series which, before it would be ready for that operation, needed a shoulder operation which was per- formed during the layoff Jaksch's third operation was a label job on the number 66 machine Another regular employee, Mary Aguilar, did the available work on this operation It should be noted that this was Aguilar's number one operation There was only one machine for the operation which was used by Aguilar at night While there were 32 hours available on this operation the machine was used by Sophia Bustamonte, also a regular employee, during the daytime to do one needle tucks in order to prepare garments to be ready for an operation scheduled for Barbara Otrodovsky on August 31 Bustamonte was also engaged in this work on August 26 at which time Jaksch was performing a placket job which she had been performing off and on for 2 or 3 weeks before the layoff Mohna's last date of hire was January 15 Her primary job was a bar-tacking operation, job code 90, for which General Counsel's exhibit 11 demonstrates there was no work Because of a lack of work of this nature, Molina had not done any such work for several weeks Molina's secondary occupation was easy serger work of which there was none for her to do Molina was scheduled for serger work on August 31 which required the piping operation which created one of the bottlenecks A regular employee, Amparo Accosta, did this work during the layoff in order to prepare garments for Molina Molina's number 3 operation was the same dot tacking operation which was so slack that Aurora Quintero was also laid off Linda Zbranek Zbranek was a seasonal employee who last returned to work on June 8 Her primary operation was a zigzag job, job code 58, which attached trim to pants, slips, legs, and the necks and bottoms of certain sleepwear General Counsel's exhibit 11 shows that this operation was completely idle Similarly Zbranek's secondary operation, a belt loop job on the number 62 machine, job code 79, was also idle Zbranek's third operation was easy serger flat work and the dearth of this work caused a number of layoffs The Company's brief continues that because of the total lack of work in Zbranek's primary operations the Respondent had decided to retrain her on a new machine beginning on August 11 The brief adds, "in view of the 4 Conclusion concerning the alleged discriminatory layoff It is true that once the General Counsel has questioned the validity of Respondent's justification for the layoff the burden of further explanation shifts to the Company It appears clear that Respondent has provided reasonable and acceptable economic explanations and, at that point, in order to prevail it was incumbent on the General Counsel to come forward and prove his contentions by a preponderance of credible evidence The evidence con- cerning the layoff does not preponderate in favor of the General Counsel's contention that Respondent was moti- vated in making the layoff by antiunion considerations I therefore recommend that the allegation in the complaint that the layoff of the 11 employees was discriminatory and violative of Section 8(a)(3) be dismissed C The Strike of August 31, 1970, Was Not an Unfair Labor Strike It is the theory of the General Counsel that the strike which commenced on August 31 and lasted until February 15, 1971, was caused by Respondent's alleged discrin ina- tory layoff of 11 employees Carrying this contention to the next logical step, the strike was therefore an unfair labor practice strike which would have entitled all strikers who unconditionally offered to return to work on February 15, 1971, to be restored to their former or substantially 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent jobs with backpay for the time lost by these employees I have found that the strike which the employees embarked upon was neither caused by nor was it converted into an unfair labor practice strike D Respondent's Procedure in Recalling Strikers Although the General Counsel argued at the hearing that Respondent failed to reinstate 19 employees at the conclusion of the strike, in his brief the General Counsel urges that the Company "reimburse at least 11 unfair labor practice strikers for any loss of wages suffered as a result of their not being recalled at the termination of the strike " The record shows that at the termination of the strike the Union was given three lists which listed the strikers who would be recalled, those who would not be returned to work, and those workers then employed who would be retained The Union agreed that the returnees would be called back on a staggered basis over a 3-day period The Company explained that all regular employees were being recalled Those not immediately recalled were temporary trainees or seasonal employees Approximately 48 strikers were recalled and Respondent dismissed approximately 30 workers hired during the strike The Company states in its brief that only 19 strikers were not immediately recalled and many of these 19 have since been recalled The General Counsel did not argue that recalls should be in accordance with the Laldlaw doctrine because his position has consistently been that the strike was an unfair labor practice strike to which the so-called Laidlaw principle does not apply This issue was litigated by the Respondent who contended that the strikers who were reinstated were those who could handle the Company's requirements for personnel which prevailed at the end of the strike, on February 15, 1971 In Laidlaw Corp, 171 NLRB No 175, the Board enunciated a new policy with respect to economic strikers in the following language We hold, therefore, that economic strikers who uncon- ditionally apply for reinstatement at a time when their positions are filled by permanent replacements 1) remain employees, 2) are entitled to immediate reinstatement upon departure of replacements unless they have in the meantime acquired regular and equivalent positions, or the employer can sustain its burden of proof that the failure to offer full reinstate- ment was for legitimate and substantial business reasons As indicated supra the General Counsel predicates his arguments with respect to the recall of the strikers on the basis that the strike was an unfair labor practice strike and did not address himself to the evaluation of the recall of employees in the light of the Laidlaw doctrine Conse- quently he did not controvert Respondent's testimony on this point that the Company's recall procedure was for legitimate and substantial business reasons The Respon- dent's evidence therefore, not having been controverted, stands undenied in the record As a result it would unduly burden the instant decision to detail the Company's evidence on the subject of the recall of employees Suffice it to say that the Respondent did sustain its burden of proof thus meeting the requirements of the Latd'law decision E Respondent's Objections to the Election The parties executed a Stipulation For Certification Upon Consent Election in Case 23-RC-3498 as the result of which an election took place on November 6, 1971 Seventy-three employees voted for the Union, 14 against the labor organization, and there were 24 challenges which did not affect the results of the election The Employer filed objections to the election and to conduct affecting the results of election on November 13, 1971 In sum the objections allege that (1) The petitioner engaged in a campaign of false and fraudulent material misrepresentations designed to im- properly influence the employees, (2) The petitioner created the impression that a union victory would allow either the union or the government to operate the Employer's business solely for the benefit of the employees, (3) The Employer had been cheating both the employees and the government for years, (4) The Internal Revenue Service had been notified of the Employer's alleged unlawful conduct and the employ- ees would receive backpay after the IRS had inspected the Employer's records which were misrepresented as having been kept in an unlawful manner, (5) The Employer would show through the use of a written handbill that petitioner deliberately misrepresented the law and sought to create the wrong impression that the United States Government was lending its support to the Petitioner and that the Government desired the employees' support of the Petitioner, further that these misrepresenta- tions were material and made in circumstances from adequately or effectively replying and in circumstances which did not permit the employees to evaluate the truth or falsity of these claims, (6) Petitioner engaged in a campaign of threats, coercion, and intimidation so as to deprive the employees of their right to a free and uncoerced election, (7) Petitioner threatened employees with physical harm if they expressed opposition to Petitioner or those who refused to support Petitioner and/or the strike engaged in during the preelection period thus depriving the employees of their right to a free and uncoerced choice in the election, (8) Petitioner threatened employees who opposed the Union with the loss of their jobs in the event Petitioner won the election, (9) The Union engaged in massed assemblage and picketing of the Employer's premises, followed automo- biles driven or carrying the Employer's employees, (10) The Union created obstacles to free ingress and egress from entrances to the plant, (11) The Union accosted and threatened the employees who were working with insulting and abusive language and with the use of force and violence, engaged in the same or similar conduct directed against those strikers who wished to cease the strike, (12) The Union misled employees into believing they had no choice except to actively support the strike, ISAACSON-CARRICO MANUFACTURING 799 (13) The Union, by engaging in a strike during the preelection period and by using objectionable means of forcing adherence to the strike thus preventing the existence of an informed electorate, destroyed the labora- tory conditions which the Board seeks to maintain in such elections, (14) The Union made false and inflammatory racial and religious appeals, (15) The Employer would show that during the day of the election agents and representatives of the Union advised many eligible voters that NLRB Field Examiner Robert Markey was present in El Campo to take complaints from eligible voters, (16) Markey interviewed and took affidavits from numerous voters both shortly before and shortly after such persons exercised their franchise, (17) Such conduct on the part of the NLRB representa- tive on the very day of the election created an atmosphere of fear and confusion and tended to indicate to the electorate not only that the allegations in Case 23-CA-3790 were true but that the NLRB was prejudiced in favor of the Union Such conduct tended to destroy confidence in the election process and thus tainted the election and deprived the employees of a free and uncoerced choice in the election The Regional Director ordered on April 2, 1971, that both the "R" and "C" cases be consolidated and heard for the purpose of taking testimony in 23-RC-3498 to resolve the issues raised by all of the Employer's objections Respondent argues with emphasis, numerous exhibits, and voluminous citations to adjudicated cases that the facts, as it knows them to be, require that the election be set aside and a new election held at an appropriate time With respect to union campaign literature, some of it consists of throwaway handbills which depict a figure dressed like "Uncle Sam" in a suit of stars and stripes One of the leaflets shows "Uncle Sam" pointing his finger at the onlooker in a manner reminiscent of the world war poster which read, if I remember it correctly, "Uncle Sam Needs You " This throwaway, exhibit "A," states on its face "Here's the law " There then appears a truncated version of Section 7 of the Act reciting the rights of the employees to organize for purposes of collective bargaining but it conveniently omits the concluding statement of this section to the effect that employees also have the right to refrain from such activity Respondent offers this exhibit to show that the employees were misled by this misrepresentation In this connection it should be said that in cases too numerous to require citation the Board does not attempt to police campaign literature which is characterized as "puffing" and equated with the typical political campaign matter which frequently contains inaccurate statements and/or quotations torn out of context This type of election material is left to the good sense of the voters to evaluate it for what it is worth It seems clear that such material is similar to comic strip extrapolation and even if the electorate at the plant had no access to the precise and complete language of Section 7 of the Act it is unlikely that it was read in such a manner as to unfairly influence the results of the election Statements admittedly made by representatives of the Union that the Employer had been cheating both them and the Government are of a more serious nature Here too it should be noted that the record contains no proof that the Respondent did not have adequate opportunity to negate this type of propaganda with categonal denials possibly even supported by a lawsuit or threatened lawsuit for libel No such action was taken by the Company to dispel the false impressions that may have been engendered by such untrue statements Similarly the misrepresentations con- tained in number (4) and (5) supra could have been effectively countered The alleged threats, coercion, and intimidation were elicited from certain witnesses for the Company and denied by the Union In evaluating this material, which is obviously serious, reliance must be placed on my appraisal of the credibility of the witnesses for both sides My overview of this evidence convinces me that the Respon- dent did not sustain its allegations and since neither side preponderated in the weight of evidence presented I overrule this objection under point (7) supra This is not to say that there might not be some truth in the allegations However it must be remembered that in the heat of an election campaign certain words are spoken and certain actions take place which, while not condoned, are typical of such occasions and are not sufficient to upset the results of a Board-conducted election Threats of physical harm directed against employees for expression of opposition to the Union and/or refusal to support the Union in its strike are also serious and require careful evaluation Here again evidence in support of this type of objection require scrutiny and must be bottomed on clear and convincing testimony On balance I conclude that I have more doubt than conviction that such threats were made by representa- tives of the Union Similarly threats of loss of jobs directed against employees who opposed the Union as set forth in point (8) above require proof of a nature that I find create doubts in my mind If in fact the Union engaged in massed assemblage and blocking of ingress and egress from the factory I find it strange that Respondent did not file charges of violation of Section 8(b) of the Act If this action had been taken and if the Company adduced convincing evidence of such activities engaged in by Union representatives, an appro- priate remedy would have been available to it Such was not done by Respondent Points (11), (12), and (13) are encompassed in the above conclusion The record does not bear out the objection in point (14) Respondent's objections, based upon the conduct of the Board agent, represent the most serious matter raised by the Company in its objections to the election There is a line of adjudicated Board and court cases which deal with this subject Respondent has forcefully argued in its brief that the ambience surrounding the events which occurred on the very day the election took place manifested the continued theme that the government preferred the Union and further communicated this preference through the conduct of the Board's agent In fact the Company claims that the NLRB was in effect a not so silent partner and influenced the workers in their choice of the Union The nub of this objection is that the NLRB's field examiner, Robert 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Markey, by his behavior impaired the neutrality of the Government's procedure This is a vital requirement of the election process Markey, who was not the Board agent in charge of the election, by either happenstance or design, was present at the union hall investigating the unfair labor practice charge filed by the Union The hall is located at the other end of the town of El Campo and is situated quite some distance away from the Company's plant in which the election took place The balloting was supervised by a second Board agent Markey was investigating these charges and was taking affidavits from various employees pursuant to his investi- gation The persons interviewed by Markey and those who executed affidavits for him were eligible voters who participated in the inquiry both before and after the polling place was open The election took place between the hours of 3 and 4 p in In his brief counsel for the Respondent quoted the Austzll Waxed Paper Company case, reported in 169 NLRB 169 as follows The Board through its entire history has gone to great lengths to establish and maintain the highest standards possible to avoid any taint of the balloting process, and where a situation exists, which, from its very nature, casts a doubt or cloud over the integrity of the ballot box itself, the practice has been, without hesitation, to set aside the election Continuing, the brief asserts "However, it is not only the integrity of the ballot box itself which is so jealously guarded, but also any appearance of irregularity is likewise vigorously avoided " This premise was articulated in Athbro Precision Engineering Corp, 166 NLRB No 116, where the Board held The Board in conducting representation elections must maintain and protect the integrity and neutrality of its procedures The commission of an act by a Board agent conducting an election which tends to destroy confi- dence in the Board's election process, or which could reasonably be interpreted as impugning the election standards we seek to maintain, is a sufficient basis for setting aside that election The First Circuit (N L R B v Athbro Precision Engineering Corp, 423 F 2d 573) had occasion to reaffirm the Board's concern with any appearance of a partisan approach by a Board agent, as follows We cannot think the Board, any less than a court, is uninterested in maintaining, as well as fairness, the appearance of fairness The Board's public image provides the basis for its existence The rerunning of an occasional election is a small price to pay for the preservation of public respect The Fifth Circuit, in Delta Drilling Co v N L R B, 406 F 2d 109, held that Austill and Athbro "clearly articulate a commendable, indeed the only tenable, Board policy " There the court went on to uphold the Company's refusal to bargain in order to test the sufficiency of objections over the fact that the Board agent holding the election used the union agent's motel room to freshen up In passing upon such conduct, the court held that by closeting himself with a union representative, the Board agent participated in a questionable act which violated Board policy and im- pugned upon the standards of integrity which must be assured in Labor Board elections Respondent's brief continues, "Board policy relating to conduct of Board agents was expanded in Amax Aluminum Extrusion Products, Inc, 172 NLRB 1401 to include very similar to that involved here In Amax, the same Board agent who conducted the election investigated unfair labor practice charges between shifts of a split-shift election The Board declined to overturn that election since only three employees were interviewed and there was no evidence that other employees saw the interviewing or became aware of it " In the instant case the evidence establishes that Markey interviewed some employees and took affidavits from them Also that the interviewing was open and obvious The umon representatives publicized the fact that Markey was in the umon hall for the express purpose of gathering evidence concerning the Union's unfair labor practice allegations It is contended by the Company that not only was the Board agent present to accumulate evidence but "they (the employees) were mformed by the Union that as many statements as possible were needed prior to the election so that the statements could be brought to Respondent and that the statements were needed `to make the election legal' " The record shows that one of the approximately 115 employees did in fact give such testimony Mary Maldona- do, who went out on strike with the other workers, returned to work for the Company after the election on or about November 9, 1970, and she was roundly criticized to breaking the solid front of the employees most of whom stayed out on strike until the strike was relinquished officially by the Union on February 15, 1971 She testified as follows Q Was anybody from the Government there at the strike hall that morning? A Yes, sir Q And who was that? A A man named Markey Q Did you see Markey that morning? A Yes, sir Q Were you told anything about why he was there9 A Yes, sir He's taking statements from the girls Q Were you told there was any particular reason why he was taking statements that day? A Well, they wanted to get all these statements from the girls so they could-They wanted to take all the statements before they would go to the election Q Who told you this'? A Well, they was told before, and then it was told, you know, that day Q Who-What was told before? A At one of the meetings Q Who said it at that meeting? A Who was at that meeting? I think Miss Sarah (Mrs Collins, Union representative) was at that meeting Q OK, this Friday morning was there a meeting at the strike hall? A Yes ISAACSON-CARRICO MANUFACTURING 801 Q At that time did you also hear he needed the statements for the election A Some of the girls, because I wasn't there when it started Q Did you see Mr Markey there that day9 A Yes Q Did you see him around noon time9 A Yes, sir Q What was he doing around noon time9 A At noon time he was still taking statements Q Where was he taking the statements9 A In a little room in the back close to the kitchen Q Did he come out of that room at any time9 A I didn't see him Q Did you see whether he at[e] there that day or not9 A No, I didn't see him eat there, but I noticed that some of the girls were trying to keep his food warm to eat Q Did somebody say that? A Yes, sir Q Who was that9 A I think it was Evelyn Jaksch and Mildred Veselka A Yes, I was there all day Q Somebody there from the Government that day'? A Yes Q Who was that9 A Mr Markey Q Was he mtroduced9 A Yes Q Sarah Calvert there9 A Yes Q Did you learn of Mr Markey's purpose for being there that day9 A Yes Q And how did you learn his purpose? A Sarah introduced him as the man from the National Labor Relations Board Q And what did she say about him being there A I don't know where he was then, but she was telling us that-She told whoever was supposed to talk to Mr Markey to stay there , because he wanted to get as many statements as he could before the election so he could take them to the Company , and she called out all the names of who was supposed to stay, to be sure and be there Q Did you see Mr Markey there prior to the time you voted in the election A Yes, sir Q A Q Were you there around lunch time9 Yes Did the employees generally fix some kind of Q How many ladies were there9 hot meal for lunch during the strike9 A At the halh Q Yes9 That morning Mr Markey was there A Oh, golly, most all of them were The Respondent's counsel then developed in direct examination from employee Jean Morton the following, A Q A Q A Yes Did they fix a meal that day? Yes Do you recall what it was? Yes, I do I remember, I think it was, they call most of which related to the general outline of the General them sloppy Joes Counsel's case in chief Q Did you see Mr Markey around noon time? Q Did Mr Lopez (Umon representative) at some time during that meeting, either before or after the strike vote was held, say that the strike was for such and such a reason A Q A Q Yes What was he doing? Well, it was at noon He came down- Where had he been Had he been taking some A You mean, well, yes It was for more money and statements? that-So to make the Company recognize the union A Yes Well, during the morning he was taking Q Did he request to tell the employees not to say statements, yes As I recall, I think it was just a couple something about the reasons? of girls that morning And about 12 00 or a little after, A Oh, yes around noon, he came out and ate lunch Q to say9 A What did he say, tell the employees not to say or Well, that was about if someone ask us why we Q A Q Oh, he ate lunch9 Yes There at the union hall? were on strike, it was for unfair labor practices and not for money A Q Yes Were some union representatives there around Q And Mr Lopez said this? lunch time9 A Yes A Yes Q What time of day was that election Q Who would that be? A 3 30 to 4 00, I believe A Mr Richards, (Union attorney) and Sarah was Q Did you do anything that morning? there Bob Brown (Another Union representative) A Just hung around the union hall David Lopez I believe Lopez's boss was there that day Q Around the what? Q Is there a pool table there at the hall9 A At the strike headquarters A Yes Q OK You were at the strike headquarters9 Q Was the pool table being used around lunch A (The witness nodded in the affirmative) time') Q Were you there most of the day prior to the A Yes stnke7 Q And who was using it9 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A Well, the representatives, they were just hitting around Q Mr Richards take up a cue and hit a ball or two? A Yes Q Mr Markey join them? A Yes I mean they were all laughing and acting silly, is what they were doing Q What activity did Mr Markey have around lunch time with the rest of the ladies around? A Just laughed and talking, that is all Mr Kneese We are getting into the effect of this conduct on the voter Trial Examiner We had precisely the same situation arse with the previous witness Q What did you think about Mr Markey being there that day? The day of the election A Well, it just seemed odd to me just the way it happened It just seemed odd because I mean the Labor Board was supposed to be neutral And there they were, I mean coming in like they were I mean it just didn't seem right to me at that time The testimony of Maldonado and Morton has been quoted supra in extenso because it bears a critical relationship to Respondent's objections to conduct affect- ing the results of the election The Company apparently desires that I draw certain inferences that Markey's conduct, his presence in El Campo on the very day of the election even though the election itself was conducted by another Board representative other than Markey, and the seeming camaraderie with union representatives in the presence of voters all add up to conduct so serious as to warrant sustaining Respondent's objections and requiring that the election be set aside as being incompatible with the neutrality required by the NLRB's own decisions and supporting court adjudications in such situations In this connection it must be borne in mind that no criticism has been directed against the Board agent who conducted the election While it appears to be poor practice for the Regional Office of the Board to permit the presence of an examiner to conduct an investigation into certain alleged unfair labor practices of the Company on the same day that the election was in progress this fact, standing alone, is not a sufficient basis for setting the election aside As to the evidence in support of Respondent's other objections having to do with the alleged friendship and alleged horseplay with union agents, Sarah Calvert flatly denied that Markey played pool with the union men, thus creating a clear conflict in the testimony Add to this the Union's witness Ardie Collins denied that she saw Markey playing pool and in fact she testified to the fact that she personally was closeted with Markey most of the morning of the election during which time he confined himself to the business of taking her statement in the form of an affidavit Collins also said her interview with Markey took from about 9 a in until noon to complete Resolving questions of credibility is difficult especially when certain aspects of the testimony of a witness have been credited and some have not been so evaluated At the very least there appears to be some credence in the substance of Respondent's objects on the point under scrutiny However, on balance, I am persuaded that there is insufficient solid evidence upon which it might be said that Respondent's evidence preponderates in its favor I reach this conclusion by taking certain other factors into consideration The results of the election demonstrate that the overwhelming majority of the Company's employees voted in favor of the Union A vote of 73 in favor of the Union against only 14 employees who voted against representation by the Union speaks for itself It should also be noted that the Board has held, with court approval, that one of the yardsticks for measuring the impact of whatever practices were employed by the Union is to be found in the results of the election By extension the same overview as to the conduct of Board employees can reasonably also be tied in by reference to the extent of the union victory On this basis the election results make it abundantly clear that the impact of the behavior of the Union's representatives and the Board's agent did not interfere with the holding of a fair election Under well established precedent, the test to be applied to determine whether an election should be set aside on the basis of conduct attributable to both the Union and the Board's agent is whether the character of the conduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free expression of choice of representa- tives impossible It might be added that the conduct of Markey was not such as to have destroyed the employees' freedom of choice The Company alleged in one of its objections that the Union deceived the employees by representing to them that the said Union was endorsed and favored by the U S Government and the National Labor Relations Board, and further that an affirmative vote for the Union in the election was the voting choice endorsed by the Govern- ment and the Board A consistent refrain appears in Respondent's objections that the acts and conduct of the Union and the Board's agent so affected the laboratory conditions under which the employees voted as to destroy their freedom of choice in the election The Company also contended that the election should be set aside because of union misrepresentations concerning Respondent's profits The Union admittedly had no special knowledge of the subject matter and plainly was talking through its hat In any event the record is not clear as to whether or not the Company sought to rebut this assertion At no time during the pendency of the representation case did the Company claim it was not making profits or even that it was not making substantial profits In these circumstances the Respondent cannot be heard to com- plain that its profits were either overstated or understated Specifically, in the exercise of its discretion, the Board is reluctant to set aside elections because of allegedly untruthful statements by the parties during an election campaign See Linn v United Plant Guards, 383 U S 53, 60-61 (1966), Anchor Manufacturing Company v N L R B, 300 F 2d 301, 303 (C A 5, 1962) Thus, recognizing that "absolute precision of Statement and complete honesty are not always attainable in an election campaign," Hollywood Ceramics Company, Inc, 140 NLRB 221, 223 (1962), the Board does not undertake to "police or censor propaganda used in elections it conducts, but rather leaves to the good ISAACSON-CARRICO MANUFACTURING 803 sense of the voters the appraisal of such matters, and to opposing parties the task of correcting inaccurate and untruthful statements " Linn v United Plant Guard Work- ers, supra, 383 U S 53, 60, quoting Stewart Warner Corp, 102 NLRB 1153, 1158 (1953) "The ultimate consideration is whether the challenged propaganda has lowered the standards of campaigning to the point where it may be said that the uninhibited desires of the employees cannot be determined in an election " The Gummed Products Co, 112 NLRB 1092, 1094 (1955) Indeed, even when a misrepresentation constitutes a substantial inaccuracy rather than a "minor distortion," the Board may properly conclude that the surrounding circumstances preclude an impact upon the employees' votes significant enough to warrant setting aside the election Anchor Manufacturing Company v N L R B, supra, 302-304, N L R B v Allen Manufacturing Company, supra, 816, Olson Rug Co v NLRB , 260 F 2d 255 (C A 7, 1958), Hollywood Ceramics Company, Inc, 140 NLRB 221, 224 Moreover, the burden is not on the Board to establish the validity of the election, rather, the objecting party has the burden of proving by specific evidence that the election was unfair N L R B v Mattison Machine Works, 365 U S 123, 124 (1951), Anchor Manufacturing Company v NLRB, supra, 933, 942 This burden is a heavy one, Shoreline Enterprises v N L R B, 262 F 2d 933, 942 (C A 4, 1959), for "the results of a secret ballot conducted under government sponsorship with all the safeguards which have been developed throughout the years, should not be lightly set aside " Liberal Market Inc, 108 NLRB 1481 As has already been shown supra the Company has failed to meet its "heavy" burden in this case For all of the reasons explicated above I find and conclude that the Objections to the Election and Conduct Affecting the Election are insufficient to warrant setting the results of the election aside and ordering a new election to take place Concluding Findings and Analysis I have previously found that the interrogation committed by Supervisor Sauers was violative of the Act However, in view of the fact that it constitutes a single isolated event it does not rise to the level of warranting the imposition of a requirement to post the usual remedial notice Without burdening the decision with a reiteration of the findings with respect to the alleged unfair labor practices which have been detailed supra, I hereby recommend that the unfair labor practices be dismissed in their entirety Similarly sufficient explication appears above with respect to Respondent's Objections to the Election I find and recommend that Respondent's objections be overruled and that the Regional Director certify the results of the election won by the Union CONCLUSIONS OF LAW 1 The Respondent, Isaacson-Carrico Manufacturing Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Texas District Council, International Ladies Gar- ment Workers Union, AFL-CIO, is a labor organization within the meamng of Section 2(5) of the Act 3 The Respondent has not engaged in any unfair labor practices as alleged in the complaint within the meamng of Section 8(a)(1) and 8(a)(3) of the Act [Recommended Order omitted from publication ]