F. W. Woolworth Co.

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woolco Department Store, a Division of F. W. Woolworth Co.; Roskower Corp., S. M. & R. Co., Inc., Majestic Paint Centers Inc., Ameron Automo- tive Centers, and Conra Stylco Inc., licensees, d/b/a Woolco Department Store and Retail Store Employees Union Local No. 214, AFL-CIO, affiliated with Retail Clerks International Associa- tion, Petitioner. Case 30-RC-2020 November 13, 1973 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on June 15, 1973,1 under the direction and supervision of the Regional Director for Region 30, among the employees in the stipulated unit. At the conclusion of the balloting the parties were furnished with a tally of ballots which showed that, of approximately 66 eligible voters,.40 cast ballots for and 24 against the Petitioner. There were three challenged ballots which were not determinative. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, the Regional Director conducted a preliminary investigation, on the basis of which he concluded that there were substantial questions of fact and credibility which could best be resolved by a hearing. Accordingly, on July 23 and 24, a hearing was held before Hearing Officer Ralph Winkler who, on August 23, issued his Report and Recommendations attached hereto. Thereafter, the Employer filed exceptions and- a supporting brief to the Hearing Officer's report, and the Petitioner filed an answering brief. 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 reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Hearing Officer's report, the Employer's exceptions thereto and the parties' briefs, the Regional Direc- i All events herein are in 1973. 2 Contrary to the Employer's contentions, our careful examination of the record reveals no bias or prejudice by the Hearing Officer. 3 In adopting the Heating Officer's finding that Union Representative Tesch engaged in no objectionable conduct, we rely on the insufficiency of the testimony in the record to support the assertion of Employer's counsel tor's decision and notice of hearing, and the entire record in the case,2 and hereby adopts the Hearing Officer's findings and recommendations with the following additions and modifications.3 Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The following employees, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and part-time employees employed at the Employer's Store No. 6024 located at 220 Third Avenue South, Wisconsin Rapids, Wisconsin, including office clerical em- ployees and employees in the following licensed departments: Men's Wear, Jewelry, Paint, Auto- mobile Accessories 'and Shoes. Excluding: man- agers, assistant managers, all licensed department managers in the above described licensed depart- ments, seasonal employees, temporary employees, professional employees, guards, and supervisors as defined in the Act. 5. Pursuant to our adoption of the Hearing Officer's recommendations that the objections be overruled in their entirety, and as the tally shows that the Petitioner has obtained a majority of the valid votes cast, we shall certify the Petitioner as collec- tive-bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots has been cast for Retail Store Employees Union Local No. 214, AFL-CIO, affiliated with Retail Clerks International Association, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organiza- tion is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining with respect to that "Tesch told the employees the Act guarantees employees no fewer benefits when a contract is signed than before the Union came in." The Employer's exceptions. in our opinion, raise no material or substantial issues of fact or law which would warrant reversal of the Hearing Officer's recommendations or require a hearing- 207 NLRB No. 50 WOOLCO DEPARTMENT STORE 277 wages, hours of employment, or other conditions of employment. HEARING OFFICER'S REPORT AND RECOMMENDATIONS ON OBJECTIONS RALPH WINKLER, Administrative Law Judge: Pursuant to a petition filed on March 26, 1973, and a stipulation for certification upon consent election, an election was conducted on June 15, 1973, in a unit of employees at Employer's Store No. 6024 in Wisconsin Rapids, Wiscon- sin. Of approximately 66 eligible voters, 40 cast ballots for and 24 cast ballots against the Union. The Employer filed five objections on June 21, 1973, and the Regional Director issued a notice of hearing on July 9, 1973, to resolve the issues raised by those objections. The Regional Director's notice provided that the Hearing Officer to be designated was to prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board. A hearing was held before me as the designated Hearing Officer on July 23 and 24, 1973, at Wisconsin Rapids, Wisconsin. The Union and the Employer were represented by counsel and participated in the hearing. Upon the entire record, including my observation of witnesses and consideration of briefs and supplemental memoranda, I make the following: FINDINGS of FACT The Union began its organizational drive on October 15, 1972, and-as indicated above, filed the petition in this matter on March 26, 1973. The Employer meanwhile conducted its own campaign, and the record contains some 10 separate distributions during the critical preelection period in which the Employer urged its employees to vote against the Union. I shall now take up the objections seriatim. Objection 1 This objection states: Said Local No. 214 by its agents and representatives aided and encouraged certain supervisory employees to participate in its campaign, meetings, and internal affairs thereby tainting said Local's showing of interest and conveying to employees the impression that management wished them to join and vote for this Union. The Union held 13 organizational meetings before the June 15 election,' seven of them after the petition was filed on March 26. The parties had agreed before the election that approximately 15 named individuals be excluded from the unit as supervisors; there had been a dispute concern- ing three other individuals (Crabb, Koszenski, and Guken- berger) whom the Employer also claimed were supervisors, and the parties accordingly agreed that these three individuals be permitted to vote under challenge. (The parties did not litigate the supervisory status of these three individuals in this hearing.) Altogether, therefore, there were approximately 18 claimed supervisors. Of the 15 admitted supervisors , 2 had attended one preelection meeting and none attended any meeting during the critical postpetition period. The three claimed (i.e., disputed) supervisors attended some meetings before and after the petition. These three disputed supervisors signed union cards, and only one of the agreed-upon supervisors (Leslie) also signed such card and he did so before becoming a division manager. In addition to the fact that the Employer had conducted a antiunion campaign and left no question in the employees' minds where it,stood, the record further shows that the Employer knew before the election that at least one of its claimed supervisors had attended a union meeting. The record contains no showing of any sort that any supervisor, admitted or claimed, solicited or actively campaigned or coerced any unit employee in behalf of the Union. The Employer's brief does not mention this objection and perhaps may have abandoned it. In any event, mere membership by supervisors in rank-and-file unions and attendance at meetings by such supervisors , particularly minor ones, do not taint a union's representative showing or status; and there is no evidence of "the `actual solicitation or active campaigning' that is necessary if the card majority is to be considered tainted by pro-union managerial intimidation." N.L. K B. v. Orlando Paper Co., Inc., 480 F.2d 1200 (C.A. 5, 1973); N. L R.B. v. WKRG-TV, 470 F.2d 1302, 1315-1316 (C.A. 5, 1973); cf. International Union, UAW (Aero Corp.) v. N.LR.B., 363 F.2d 702, 707 (C.A.D.C., 1966), cert. denied 385 U.S. 973(1966). Objection 2 This objection recites: Said Local 214 made promises of benefit and material values of consideration, including but not limited to waiving of initiation fees, in order to influence employees to vote for said Local. The Employer adduced in this connection the testimony of Virginia Gukenberger. Mrs. Gukenberger testified that she was told by Union President Richard Eiden at a union meeting on March 20 that if she would sign a union authorization card, this would give the Union the right to check company payroll records to determine her wage rate, and that if she signed an-authorization card "that night" she would not have to pay any initiation fees but that employees who signed such cards after the upcoming Board election would have to pay such fees . Guckenberger signed a union card that evening. Mrs. Gukenberger is one of the disputed supervisors claimed to be such by the Employer, and before the election she had mentioned to Store Manager Ivan Wilhorn that she had attended a union meeting. The March 20 meeting, as to which occasion Gukenber- ger imputed to Eiden the aforesaid purported remarks concerning initiation fees, antedates the March 26 filing date of the petition herein. Even if true, therefore, such I All dates are in 1973 unless othemse indicated. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purported remarks are outside the critical election period and are therefore untimely for consideration as basis for setting aside election results. Ideal Electric Mfg. Co., 134 NLRB 1275. In any event, and even though Eiden did not specifically controvert Mrs. Gukenberger's testimony, 100 not credit her version of this event. Upon consideration of her demeanor and all of her testimony, perhaps what I might say charitably is that she was confused, but not because of any fault on the part of any union representa- tive. Marvin Schael is the Union's business representative; he addressed the employees at the March 20 meeting and he attended almost all of the Union's other meetings. Schael credibly testified without contradiction that he informed the employees on that occasion, and as either he or other union representatives did at other meetings, that no employee would be required to pay initiation fees until such time following the election that the Union obtained a contract from the Employer. The record further establishes that by letter of April 6, the Union issued a certificate to each individual employee, including Gukenberger, that the employee "shall not be required to pay initiation fees of any kind, nor any other fees other than the regular monthly dues, which shall not be required of the bearer until a Union agreement has been signed by the employer after it has been voted upon by the employees of the store and accepted by a majority vote." 2 Relying on the noncredited testimony of Gukenberger concerning initiation fees, the Employer urges that the election be set aside on the basis of NLRB. v. Gilmore Industries, Inc., 341 F.2d 240 (C.A. 6, 1965). That court followed its Gilmore decision in N.LRB. v. Savair Mfg. Co., 470 F.2d 305 (1972), and the latter case is now awaiting argument in the United States Supreme Court, Docket No. 72-1231 [affil. 414 U.S. 270(1973)], on the following stated issue in the Board's brief to the Supreme Court (p. 2): "Whether the Board properly concluded that a union's offer to waive initiation fees for all employees who sign authorization cards before a Board representation election, if the union wins the election, does not tend to interfere with employee free choice in the election." However the Supreme Court resolves that issue, the instant case is distinguishable in that the Union here would not require initiation fees from any employee until-upon achieving bargaining status-it negotiated a contract with the Employer which contract a majority of the unit employees had approved.3 Furthermore, the Board has meanwhile announced that "until the matter has been passed upon by the U.S. Supreme Court, we adhere to our position that it was reasonable for the Board to determine that an offer to waive initiation fees prior to an election, whether or not conditioned upon the outcome of the election, is permissible." Red's Supermarket, 204 NLRB No. 164, fn. 3. I would accordingly reject the Employer's objection respecting initiation fees. The Employer asserts in further support of Objection 2 that the Union made promises of benefit to a bargaining unit employee in order to buy votes for the Union. Called by the Employer as an adverse witness, International Representative Clarence Thomas testified that early in the evening before the election, he spent "maybe an hour if that long" with a female employee within the bargaining unit, at a local eating establishment. I ruled further questioning along this line out of order, and suggested that Employer counsel make an offer of proof which he did as follows: "if permitted to continue this line of examination, this witness I believe will testify that, number one, he did buy drinks and beverage and possibly food for the individual employee; and, number two, that the question of union representation came up and was discussed. And that is an attempt by the union . . . to buy votes...." The Employer now requests that the hearing be reopened to take the proffered testimony. But the furnishing of free food and beverages is a permissible electioneering activity. Jacqueline Cochran, Inc., 177 NLRB 837, 839; The Zeller Corp., 115 NLRB 762, 764-765; Southwester Co., 111 NLRB 805, 814, 816. The Employer's request to reopen is denied, and I would find this objection without merit. Objection 3 This objection alleges: Certain agents and representatives of said Local abused the Board's processes by inter alia, and conveying to employees the impression that the Board was in favor of unions in general and this union in particular and by conveying to employees the impression that certain agents and representatives of said Union were in fact agents or representatives of the Board. Mrs. Jane Russell is a bargaining unit employee; she had attended union meetings and one such meeting was held at her residence. According to Mrs. Russell, a Mr. Clancey came to her residence a week or so before the election. "I don't remember him introducing himself to me," testified Mrs. Russell, "but he said that he was there in the interest of the National Labor Relations Board; and he asked me if I knew there was to be an election, and I said, yes. And he said, if I had any questions concerning the election. And, I told him, no, because I felt that there was nothing that he had to tell me that would be new. I had gone to the meetings and I had listened to what the Woolco people had to say, and I had already formed my opinion and I thought he had nothing more to enlighten me on." Mrs. Russell testified that the conversation lasted possibly less than 5 minutes and that she did not again observe "Mr. Clancey" until sometime after the election. "Clancey" is the nickname of Clarence Thomas, an International representative of the Union's parent Interna- tional, a position he has occupied for 6 years. Thomas testified that his visit to Russell was one of 20 housecalls he made to voters in the Union's behalf in the upcoming election. Denying Russell's testimony that he had told her he was there in the interest of the Board, Thomas testified 2 This particular mailing consisted of two pages, the first page referring find that she received both pages to the certificate on the second. Gukenberger first testified that she 3 Cf. N L.R.B. v. Gafner Automotive & Machine, Inc, 400 F 2d 10. 12 "beheve[dI" having received both pages; then she testified having received (CA. 6,1968) p. I but did not recall whether or not she received p. 2 1 am satisfied and WOOLCO DEPARTMENT STORE 279 that he had identified himself to Russell as an Internation- al union representative, inquired whether she had any questions concerning the upcoming election, and gave her a union organizational pamphlet. The Employer did not challenge Thomas' testimony that the latter had visited some 19 other prospective voters, and it did not adduce testimony of any other prospective voter that Thomas had sought to pass himself off as a Board agent. Considering my demeanor observations of Russell and Thomas as well as-the plausibilities of the situation, I have no doubt that Thomas' version of his housecall is the credible one, and that Russell's is not. In further support of Objection 3, the Employer adduced testimony of Union Representative Marvin Schael to the effect that at a preelection meeting, Union Representative David Tesch held up a Board pamphlet and an official notice of the election and that Tesch purportedly said that the Act guarantees employees no fewer benefits when a contract is signed than before the Union came in. I use the word "purported," for the testimony was not as clear in context as it might have been. However, I shall accept it as such. The record further shows that Schael told the employees at the same meeting that the union position has always been that it never settles for less than what the employees already have, that "our ultimate goal is always to negotiate for a better contract and not to have anybody lose anything because of the fact they entered into a labor agreement." Union President Eiden also kept the employ- ees advised of another Board proceeding involving F. W. Woolworth in Escanaba, Michigan. At that time the Administrative Law Judge in that matter had issued his decision and the case was on appeal before the Board on exceptions of both the General Counsel and the respon- dent company. Eiden read portions of that decision and excerpts from the General Counsel's brief to the employ- ees, but telling them at the time that the matter was pending before the Board and therefore not finally decided? The Employer urges that Tesch's conduct be interpreted as indicating to the employees that "the Board sits at the bargaining table to insure that employees can only benefit from a union." And it asserts inter alia that Eiden "led [them I to believe that F. W. Woolworth Co. had been found to violate the law when this was not the case" and that Eiden thereby "repeatedly linked the Board to the Union's propaganda." As stated above, Eiden had made it clear to the employees that the Board had not yet decided the Escanaba case and he also identified the documents from which he was reading. It may also be noted as to the Tesch matter that, as indicated in the Employer's distribution to employees set forth in part in footnote 8, below, the Employer meanwhile advised its employees that "The federal law says that the Company is not required to agree to any RCIA demands." This situation is hardly comparable to situations where a party has physically altered government or official docu- ments as occurred in the Mallory Plastics Company (161 NLRB 1510) and Rebmar, Inc. (173 NLRB 1434) cases cited by the Employer. The employees were exposed to both Union and Employer propaganda here and, as the Seventh Circuit has observed, "prattle rather than precision is the dominating characteristic of election publicity." Louis Allis Co. v. N.L R.B., 463 F.2d 512, 518 (C.A. 7, 1972), quoting from Olson Rug Company v. N. L. R. B., 260 F.2d 255, 257 (C.A. 7, 1958). In the final analysis as to this and the other objections the issue is whether it can be said that there has been interference "with the employees' exercise of free choice to such an extent that they materially affected the results of the election" N.L.R.B. v. White Knight Mfg. Co., 474 F.2d 1064, 1067 (C.A. 5,1973), quoting from N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (C.A. 5,1969). No such interference or impropriety is established as to Objection 3, and I shall recommend it be overruled. Objection 4 This objection states: On the eve of the election certain agents and represent- atives of said Local in the above store and in the presence of employees threatened and assaulted the Assistant General Manager of said store thereby restraining and coercing the employees of said store. International Representative Clarence Thomas is 6 feet 5 inches tall and weighs approximately 250 pounds. He is substantially taller and heavier'than Darrell Kademan, the Assistant General Manager of the store. The night before the election, at the request of certain employees, Union Representatives Thomas and Schael visited the store with the object of being seen by employees in order to bolster their morale. Thomas had previously visited the store and purchased fishing equipment there on four occasions without incident. On the night under consideration Thomas and Schael had been sitting in the store grill having coffee for about 15 minutes when the grill unexpectedly closed. As Thomas and Schael then left the grill and walked towards the sporting goods department, Kademan and three other management personnel began following them, with Kademan a few feet directly behind Thomas. At no time that night had either Schael or Thomas spoken to any store employees. General Manager Ivan Wilhorn explained that the management personnel, including Kademan, were comply- ing with management instructions in following Thomas and Schael. Wilhom thus testified that "we were instructed to stay with . . . any union personnel that come in the store and make sure they were not soliciting in the store; and we were told to follow very closely by them so they could not have any contact or represent the union in the store . . . . I believe even yourself [Employer counsel] mentioned it that we should stay right next to them " Followed by the above-described management proces- sion Thomas stopped suddenly as he neared the sporting goods department, and he stepped backward and inten- d The Board issued its decision in the matter on June 22, 1973, after the election in the instant case. F. W. Woolworth, 204 NLRB No. 55. The Board sustained findings of violation as to unlawful interrogation and threats of reprisal, but otherwise dismissed the bulk of the complaint including allegations of discrimination 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tionally brought his foot down on Kademan's shin. Thomas told Kademan the latter "was kind of clumsy" and had "better stay out of his [Thomas'] way." Kademan testified that two people in the sporting goods department are generally in the area where this incident occurred, but that he had no recollection of any "rank and file people" in the area at the time. Kademan also testified that he thereupon excused himself to Thomas and that Thomas and Schael entered the sporting goods department, where Thomas purchased an item of fishing equipment costing $1.03. Kademan at that point made some comment to the salesman that the item selected by Thomas should cost $9 rather than $1. Kademan testified that his remark was only in jest, but he then testified that he was really seeking to prevent Thomas "from making a purchase and continuing through the store and talking with. our personnel." Kademan admitted that it wasn't a "joking matter," at least to him, and he testified that Thomas really "was a customer" who did want to purchase the item. Kademan testified that Thomas made a "blocking" motion toward him on 2 or 3 other occasions as Kademan followed Thomas that night, but without any physical contact, and Thomas told Kademan that Kademan was "short and fat" and a "management pig." According to Kademan, no one else heard these remarks. Kademan further testified that-except for the purchase, to his knowledge neither Schael nor Thomas had any conversa- tion with any store personnel that entire night. Upon considering all the above circumstances, I cannot perceive any basis for finding that Thomas' conduct created an atmosphere of coercion or fear in the electorate or otherwise interfered with or even tended to interfere with the employees' opportunity to cast a free and untrammeled vote in the election the following day. Objection 5 This objection states: 5 The Employer's brief states that this item (c) was dealt with in its Objection 2, above. In any event, no evidence of misrepresentation was adduced in this connection. 6 The Employer's brief withdrew this item (d). 7 This item (e) is discussed above. S The following excerpts are from one of the Employer's campaign distributions entitled, "lO REASONS WHY YOU SHOULD KEEP THE RCIA OUT": 1) WHY IS THE RCIA SO INTERESTED IN GETTING INTO MY STORE? Answer The RCIA needs money. You are only a dollar sign to- this Union. Thousands of RCIA members have been put out of work by layoffs, store closures and strikes. Just ask the organizers about the thousands of RCIA members who lost their jobs when the Arlan's and Whitefront stores closed. These employees were dues-paying members of the union that is now trying to get into your store. Figure it out for yourself. Since times are getting hard for the RCIA, they want YOU to help make up the dues, fines and assessments they have lost over the last few years. 2) WHAT CAN THE RCIA GUARANTEE ME IN RETURN FOR THE DUES. FINES, AND ASSESSMENTS IT WILL TAKE OUT OF MY PAYCHECK? Answer: Absolutely Nothing! The RCIA cannot guarantee a single change in wages, benefits or any of your working conditions. The truth is that even ifthe RCIA got in, the Company would only, be required to bargain. 3) WHAT is "BARGAINING?" Answer: "Bargaining" is trading. It means that if you let the RCIA become your "representative", it could trade away any of your present benefits to get something it wants. For example, one demand the RCIA always makes is for a Union shop, in which employees must become RCIA members or else be fired. In order to get this provision, the Said Local at numerous times during the critical period made the following material misrepresentations of fact and law: (a) As to its wage rates, pensions, benefits and other terms and conditions of employment at other employ- er's stores with which it has collective bargaining agreements; (b) As to the law concerning unemployment com- pensation; (c) As to the amount and requirement of union dues and initiation fees; 5 (d) As to a Union pension plan, including but not limited to the eligibility requirements and benefits thereunder; 6 (e) As to the legal status and facts surrounding a case currently pending before the Board involving the employees at the Employer's Escanaba, Michigan store.? At various preelection meetings, Union President Eiden discussed the collective-bargaining process with employees. He mentioned the wage and other benefits contained in contracts the Union had with other employers, and Eiden distributed copies of these actual contracts to the employ- ees. Eiden also mentioned past contracts with a local Woolworth Store which apparently had been closed down permanently at the time, and he indicated that the wage scales set forth in some of those contracts were sometimes lower than the wages actually received by employees. In this connection, as well, Eiden distributed to the employees supporting documents for his assertion, including an April 1972 contract and a June 1972 letter of intent from that company. A fair reading of this record establishes no material misrepresentation respecting item (a).8 As to item (b) under Objection 5, International Repre- sentative Thomas testified that he works out of Illinois and is not an authority on Wisconsin law. At a preelection RCIA could trade away any of your present benefits- Remember this also: despite any phony promises. the RCIA may have made to you about fantastic wage increases or benefits, at the bargaining table, the RCIA can only ask-the Company always has the right to say NO. The federal law says that the Company is not required to agree to any RCIA demands 4) WHAT HAPPENS IF THE COMPANY DOESN'T AGREE TO THE RCIA'S UNREASONABLE DEMANDS" Answer: If the Company refused to agree to such demands, the only weapon the RCIA has left is to call you out on strike. Of course, the RCIA organizer keeps his job and his big salary and fat expense account during the strike but you are the one who stands to lose 5) HOW WOULD I STAND TO LOSE IN CASE THE RCIA CALLED SUCH A STRIKE? Answer. In the first place. in an economic strike, you can be permanently replaced. If that happens, you no longer have a job. Also. your wages stop during such a strike and you collect no unemployment compensation. 7) SUPPOSE THE RCIA'S STRIKE CLOSED OUR STORE . . . WOULDN'T THE COMPANY HAVE TO GIVE IN TO THE RCIA'S DEMANDS? Answer. Absolutely Not! If the RCIA's economic strike successfully closed down your store, the closing could be permanent, if necessary, for economic reasons. Let's be practical, your store is only one of 200 Woolco and 2.000 Woolworth stores in the United States. So, a strike WOOLCO DEPARTMENT STORE 281 meeting, according to Thomas, an employee raised a question concerning an employee's entitlement to unem- ployment compensation should the store close down in the event of a labor dispute. Thomas replied that his "understanding is that the employees would be [so] entitled." The Union agrees that Wisconsin law disqualifies strikers for unemployment compensation but states that the wording of the law expressly provides that this disqualification obtains only for so long as the labor dispute is "in active progress in the establishment in which he is or was employed." And the Union further submits that Wisconsin law entitles strikers who have been terminated or permanently replaced to draw unemploy- ment compensation in most circumstances. Without researching the status of Wisconsin law on the subject, it is fair to say that Thomas' response to the question was at best not wholly accurate. However, as indicated in footnote 8, above, the Employer did advise its employees that "you collect no unemployment compensa- tion [during an economic strike ]." This is hardly a situation as to which the Union may be said to have substantially misrepresented a material fact without opportunity for response by the Employer so as to warrant setting aside an election. N.LRB. v. Muscogee Lumber Co., 473 F.2d 1364, 1368 (C.A. 5, 1973); N.LR.B. v. Turner Associates, 457 F.2d 484, 487 (C.A. 9, 1972); Corydon Nursing Home, 201 NLRB No. 63 (Concurring opinion of Chairman Miller: .. I would exercise great restraint in these matters and would set aside elections only in those relatively rare instances in which a readily ascertainable pattern of the most egregious kind of clearly identifiable misrepresenta- tions permeated the campaign so significantly that one would be compelled to conclude that voters of ordinary intelligence would have been incapable of forming a rational judgment on the basic issue of whether they wish to be represented by a labor organization.... "). RECOMMENDATIONS On the basis of the foregoing, I recommend that the Board overrule the Employees objections and certify the results of the election of June 15, 1973. here would mean nothing to the Company 's overall business, and you cart be sure F.W. Woolworth will stay in business, strike or no strike here- As you can see, it is in your best interest not to have the RCIA because no RCIA .. no strike