Janler Plastic Mold Corp.

JANLER PLASTIC MOLD CORP 167 Janler Plastic Mold Corporation and Pattern, Mold and Model Makers' Association of Chicago and Vicinity, affiliated with the Pattern Makers' League of North America, AFL-CIO.' Case 13-CA-9933 January 7, 1974 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 10, 1970, Pattern, Mold and Model Makers' Association of Chicago and Vicinity , affili- ated with the Pattern Makers' League of North America, AFL-CIO, was certified as the exclusive representative of Respondent's toolroom employees, following an election held pursuant to a Decision and Direction of Election and the subsequent resolution of Respondent's objections, which were overruled.2 Thereafter on June 15, 1971, the National Labor Relations Board issued its Decision and Order in the instant case,3 finding that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the certified Union. The Board, accordingly, ordered the Respondent, upon request, to bargain collectively with the Union. Respondent refused to comply with this Order, contending that the Board's certification of the Union was invalid. Thereafter, the Board applied for enforcement of its Order with the United States Court of Appeals for the Seventh Circuit, and, on November 30, 1972, that court issued a decision denying enforcement of the Board's Order. In the court's opinion, Respondent's objections and supporting affidavits raised material and substantial issues of fact with respect to four areas. The court remanded the case to the Board for further proceedings. On February 26, 1973, the Board issued an order reopening the record and remanding the proceeding to the Regional Director for hearing before an Administrative Law Judge for the purposes of taking evidence in accordance with the court's remand of November 30, 1972, and to prepare and serve on the parties a supplemental decision containing findings of fact based upon the evidence received, conclusions of law, and recommendations. Pursuant to such order, the Regional Director issued a Notice of Reopened Hearing on March 12, 1973, and a hearing was held on April 18, 1973, in Chicago, Illinois, before Administrative Law Judge Henry L. Jalette. On June 15, 1973, the Administrative Law Judge issued the attached Supplemental Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. The Charging Party relies on his previously stated positions in answer to the exceptions and supporting 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 considered the record and the attached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Order as modified herein. In agreeing that the underlying election in this proceeding should not be set aside we do not rely on the early timing, with respect to the election, of the alleged job loss threat to Weisfeld. If made, it was by a stranger, and is thus not attributable to the Union. Nor do we adopt that part of the Administrative Law Judge's Decision dealing with "The alleged threats to Gaspero" which concerns the expressed fears of fellow employees that they would lose their jobs if the Union did not come in. Assuming another employee voted for the Union in an attempt to save employee jobs. we view that sort of appeal by prounion. employees as typical campaign propagan- da.`' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby overrules the objections to conduct affecting the results of the election; affirms the certification of Pattern, Mold and Model Makers' Association of Chicago and Vicinity, affiliated with the Pattern Makers' League of North America, AFL-CIO, as the representative of the employees in the appropriate unit; and orders that Respondent, Janler Plastic Mold Corporation, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order previously issued herein on June 15, 1971, at 191 NLRB 162. The Charging Party's name is corrected herein. 2 186 NLRB 540. 3 191 NLRB 162 4 Chairman Miller would find the disavowals of this paragraph unnecessary and would adopt, in two, the rationale of the Administrative Law Judge. SUPPLEMENTAL DECISION STATEMENT OF THE CASE HENRY L. JALETrE, Administrative Law Judge: On April 3. 1970, a secret ballot election was held among employees of Respondent in an appropriate unit in which 41 ballots were cast, of which 21 were for, and 20 against, the above- 208 NLRB No. 37 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named Union. Thereafter, the Respondent filed timely objections to conduct affecting the results of the election. After an investigation the Regional Director issued and caused to be served on the parties a report on objections on May 25, 1970, in which he recommended that Respon- dent's objections be overruled in their entirety and that the Union be certified. On June 18, 1970, Respondent filed exceptions to the Regional Director's report, to his recommendation that its six objections be overruled in their entirety and to his failure to direct a hearing on its objections. On November 10, 1970, the Board, with Chairman Miller dissenting, issued its Decision finding no merit in the exceptions, overruling the objections in their entirety, and certifying the Union.' Thereafter, Respondent refused to bargain with the certified Union, and on June 26, 1970, the charge in the instant case was filed. The charge was amended on January 14, 1971, and pursuant thereto complaint was issued on February 3, 1971, and was amended on February 11, 1971. The complaint, as amended, alleged that Respondent had refused to bargain with the certified Union in violation of Section 8(a)(1) and (5) of the Act. Respondent duly filed its answer, admitting, in effect, its refusal to bargain, but defending such refusal on the ground the certification of the Union was invalid by reason of the conduct complained of in Respondent's objections. On March 19, 1971, counsel for the General Counsel filed directly with the Board a motion for summary judgment. On June 15, 1971, the Board, Chairman Miller again dissenting, granted General Counsel's motion for summary judgment and issued its decision and order finding that Respondent had violated Sections 8(a)(5) and (1) and 2(6) and (7) of the Act by its refusal to recognize and bargain with the certified Union. The Board found that an evidentiary hearing was not required because there were no substantial and material issues of fact to be determined 2 Thereafter, the Board applied for enforcement of its order with the United States Court of Appeals for the Seventh Circuit, and on November 30, 1972, that court issued a decision denying enforcement of the Board's order. In the court's opinion, Respondent's objections and supporting affidavits raised material and substantial issues of fact with respect to four areas. The court remanded the case to the Board for further proceedings. On February 26, 1973, the Board issued an order reopening the record and remanding the proceeding to the Regional Director for hearing before an Administrative Law Judge for the purpose of taking evidence in accord- ance with the court's remand of November 30, 1972, and to prepare and serve upon the parties a supplemental decision containing findings of fact based upon the evidence received, conclusions of law, and recommendations. I The Board's Decision is reported at 186 NLRB 540 2 The Board's Decision is reported at 191 NLRB 162 3 The election in this case was held on April 3, 1970, and the hearing on objections just slightly more than 3 years later Respondent contends that it was entitled to a hearing at a time when events were fresher in the minds of the witnesses, and that a hearing 3 years after the events afforded it "less than fairness standards require and any decision based on testimony of what occurred three years ago would be, per force, fraught with uncertain- ty " In these circumstances, Respondent asserts that I should dismiss the Section 8(a)(5) and (1) charge and deny certification of the Union Pursuant to such order, the Regional Director issued a notice of reopened hearing on March 12, 1973, and hearing was held on April 18, 1973, in Chicago, Illinois. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by Respondent and the Union, I make the following findings of fact, conclusions of law, and recommendations.3 FINDINGS OF FACT The Objections Respondent filed six objections to conduct affecting the results of the election. The sixth objection did not allege any acts of misconduct and was merely a conclusory objection that the totality of the Union's conduct created an atmosphere of fear, confusion and doubt which interfered with the exercise of a free choice by the employees. The sixth objection, therefore, did not come into play insofar as the matters to be heard at the hearing was concerned. It is before me only in the sense that I must evaluate the totality of the conduct which I find to have occurred in determining whether the election should be set aside. As to the other five objections, they need not be reiterated here. In concluding that Respondent's objections and supporting evidence raised material and substantial issues of fact, the court found such to be the case only "with respect to four areas." When the Acting Regional Director issued notice of reopened hearing, he specified the matters to be heard as follows: 1. The allegations that there were union misrepresenta- tions about fringe benefits with respect to which the Employer did not have sufficient time to reply, particular- ly, that on the day of the election, employee Wally Dinkel stated to another employee that if the Union won, it would obtain for the employees $120 per week sickness benefits, noncontributory hospitalization insurance, and shop insur- ance for tools. 2. The allegation that employee Dinkel indicated to a fellow employee that, if the Union did not win, the Employer would discontinue mold repair work, and that other employees were allegedly told by Union spokesmen that they would lose their jobs if they did not vote for the Union. 3. The allegation that employees were told by a union agent that apprentices might lose their company-obtained draft deferments if they did not support the Union. 4. The allegation that employee Fred Kovacs, who worked at a machine 10-15 feet from the polls, kept a running tally during the voting on how he thought the employees cast their ballots; and that, as the last employee Respondent's request is rejected On January 5, 1973, the Board advised the parties that it had decided to accept the court' s remand and that they could submit a statement of position in light of the remand and the issues raised thereby Respondent filed a statement of position requesting that the Board dismiss the case or order a new election In its order reopening record and directing the instant hearing, the Board, in effect , denied Respondent's request for a dismissal when it directed a hearing I am bound by that order which directs that I make findings of fact, conclusions of law, and recommendations JANLER PLASTIC MOLD CORP voted, he stated to other employees, "This is the one-this is the last vote that will decide it." Respondent did not object to the scope of the matters set for hearing. Accordingly, and on the basis of the court's opinion, I deem the matters to be considered herein to be only those specified in the notice of reopened hearing. Alleged Union Misrepresentations About Fringe Benefits The allegation under this heading is that there were union misrepresentations that if the Union won, it would obtain for the employees $120 per week sickness benefits, noncontributory hospitalization insurance, and shop insur- ance on tools. No evidence was presented relative to misrepresentations about noncontributory hospitalization insurance as a separate item. Rather, the testimony focussed on the subjects of $120 per week sickness benefits and tool insurance. As to both subjects, the only witness presented by Respondent in support of its objection was Anthony Gaspero, a former employee and eligible voter. The $120-Per-Week Sickness Benefits Gaspero testified that employee Wally Dinkel told him on the day of, or the day before, the election that if the Union should get in and if he was sick and hospitalized, he would receive $120 per week and his total hospital bill would be paid except for his telephone service. Respondent contends that this statement by Dinkel constitutes a material misrepresentation which warrants setting aside the election. This contention requires consid- eration of several questions. Preliminarily, there is the question of the precise matter as to which there was misrepresentation and the answer to that is Dinkel's asserted use of a sickness benefit figure of $120 per week. The second question is whether Dinkel did represent to Gaspero that if the Union won employees would receive $120 per week in sickness benefits. Dinkel did not deny having the conversation described by Gaspero, nor did he deny making a representation of $120 per week in sickness benefits. He merely stated that he had no recollection. Under the circumstances, I credit Gaspero's testimony that he had a conversation with Dinkel in which the subject matter of medical insurance benefits was discussed on the day of, or a day before, the election, but despite the absence of an express denial by Dinkel I cannot credit Gaspero's testimony that Dinkel used the $120 per week figure because Gaspero was a thoroughly unreliable witness and the circumstances argue against Dinkel's use of such a figure. 'hus, John Damas, the Union's assistant business agent who was in charge of the organizational campaign, testified that union contracts with other pattern shops provide for $100 per week in sickness pay. This testimony was uncontradicted. According to Damas' credited testimony this was the figure which he quoted at union meetings .4 In light of this it is difficult to understand why Dinkel would have magnified that figure by $20 per week to induce Gaspero to vote for the Union. To an 4 In his prehearing statement to the Board on May 16. 1970. Gaspero stated that Damas quoted a $120-per-week figure at a union meeting. but he did not adhere to that statement at the hearing. 169 employee receiving nothing in sickness benefits, $100 per week should be sufficient inducement. Inasmuch as I conclude that Dinkel did not misrepresent the amount of sickness benefits employees would receive if the Union won the election, discussion of this objection could end here. However, there are several aspects of this objection which warrant discussion if one is to understand fully the nature of the case generally. For example, there is my characterization of Gaspero as a thoroughly unreliable witness. This is well demonstrated in other parts of this decision, but as to this very objection Gaspero demonstrat- ed his unreliability. One of the elements of this objection is the timing of Dinkel's statement to Gaspero. According to Gaspero, prior to the day of the election, he had not heard the $120 figure. As he put the matter on cross-examination, on the day of the election "I was hit with $120." Yet, in his April 8, 1970, prehearing statement given to Respondent's attorneys, Gaspero had stated that Dinkel's promises to him on the day of the election were new "except for the sick benefit," a clear reference to the $120-per-week sickness benefits which he had described immediately above that phrase. As pointed out above, in his prehearmg statement to a Board agent on May 16, 1970, Gaspero had stated that at a union meeting 1 month before the election Damas had used the $120-per-week figure. In light of such contradictory statements, Gaspero's testimony before me that the $120 figure was new and for that reason highly material where he was concerned can hardly be given any credence. The other element of this objection that needs discussion is Dinkel's status as an "in-plant organizer." The label "in- plant organizer" which was attached to Dinkel was attached to him by Respondent in the prehearing state- ment it obtained from Gaspero. Nothing in that prehearing statement supported the use of such a label. The record before me indicates that there was no basis for its use. Dinkel held no union office and served on no committee, organizing or otherwise, nor did he hold himself out to be an organizer. He was not even shown to have been the one to initiate the organizing campaign, nor to have been a prime mover in the campaign. He was solely and simply a fellow employee of Gaspero's who was a strong and vocal union supporter. I do not understand that fact alone sufficient to make him an "in-plant organizer"; if suffi- cient, I do not understand what legal consequences flow therefrom. In the final analysis Dinkel's statement does not represent an issue of misrepresentation in the sense appearing in Hollywood Ceramics Company, Inc.,5 and Zarn, Inc.6 To the contrary, even crediting Gaspero's testimony, all that appears is that Dinkel promised Gaspero that he would receive better medical benefits if the Union won the election. He did not tell Gaspero such benefits existed at other plants where the Union represent- ed employees, he merely told Gaspero of the kind and extent of benefits employees could get with the Union to represent them. At the hearing, much was made as to whether Dinkel 140 NLRB 221. 6 170 NLRB 1135 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guaranteed Gaspero he would get such benefits or merely promised they would negotiate for them. Gaspero would not say that Dinkel said, in haec verba, that such benefits were guaranteed, but he testified he understood they were guaranteed. I reject Gaspero's assertions about his under- standing and I conclude that the statements attributed to Dinkel by Gaspero did not warrant setting the election aside. "Prattle rather than precision is the dominating characteristic of election publicity." Olson Rug Company v. N.L.R.B., 260 F.2d 255, 257 (C.A. 7, 1958), and what Dinkel said to Gaspero was prattle. As the Seventh Circuit has noted, ". . . the employees probably knew that a contract had to be negotiated before any benefits could be obtained, even if the Union won the election." N.L.R.B. v. Red Bird Foods, Inc., d/b/a Red Bird Foods-IGA, 399 F.2d 600, 602 (1968). The statements described by Gaspero are clearly the stuff out of which all election campaigns are fashioned, and, in my judgment, Gaspero must have known them to be so. For all the foregoing reasons, I find that there were no misrepresentations on the subject of sickness benefits, and that the statements in regard thereto constituted campaign propaganda which employees were in a position to evaluate. Tool Insurance In the same conversation in which Dinkel told Gaspero about sickness benefits he told him about shop insurance for tools. Whether or not Respondent is now contending that Dinkel's remarks in that connection constituted misrepresentations and were a basis for setting aside the election is not clear as Respondent's brief makes no mention of the subject. In any event, Dinkel's remarks about tool insurance as described by Gaspero afford no basis for setting aside the election. There is no showing that Dinkel was guilty of any misrepresentation. He did not tell Gaspero that tool insurance was provided to employees under contracts with the Union with other employers, but only told him that he would get tool insurance if the Union got in.7 As with the sickness benefit subject, all that is presented by such statements is a matter of campaign propaganda which employees are capable of evaluating. Accordingly, to the extent that Respondent's objection to conduct affecting the results of the election is predicated upon Dinkel's reference to tool insurance, I shall recom- mend that it be overruled. Alleged Threats of Loss of Jobs The allegations under this heading are that employee Wally Dinkel indicated to a fellow employee that if the Union did not win the Employer would discontinue mold repair work, and that other employees were told by union spokesmen they would lose their jobs if they did not vote for the Union. Respondent called two employees in support of these allegations: Gaspero and Leonard Weisfeld. The Alleged Threats to Weisfeld Leonard Weisfeld's testimony may be disposed of very quickly. On direct examination, all that he testified to was an incident on February 20 when a stranger approached him as he arrived at the plant and said, "If you don't join the union you won't have a job when the union gets in, you'll lose the job when the union gets in if you don't vote for the union." The man did not introduce himself or say anything else. Weisfeld did not know him and testified at first that he had neither seen the man before, nor since. Weisfeld's description of the February 20 incident is so bizarre that it is difficult to give any credence to it. Why any one would approach him in the manner described, with no salutation or introduction, and threaten him with loss of his job was never explained. He was not shown to be opposed to the Union or to have resisted noncoercive solicitation. While the casebooks reveal that threats of loss of employment by union organizers are not uncommon during organizational campaigns, it is not my understand- ing that such threats are a primary organizational tool or that they are used in the indiscriminate fashion described by Weisfeld. But if the inherent implausibility of Weisfeld's testimony on direct caused me to doubt his reliability as a witness, my doubts turned to conviction when he was cross-examined with regard to his preheanng statement. His testimony in that regard is totally incomprehensible and cannot be reconciled into a coherent statement. One thing is clear ; there are significant discrepancies between his testimony at the hearing and the prehearing statement procured by Respondent's attorney in support of its objections (Exhibit I-C of Respondent's exceptions to the Regional Director's report on objections). In that prehearing statement, Weisfeld had described incidents in February and March involving an "outside union organiz- er." In its opinion remanding this case to the Board for further proceedings, the court alluded specifically to this prehearing statement and its reference to an "outside union organizer." As Weisfeld's testimony clearly shows, there was no basis whatsoever for his prehearing statement that an "outside union organizer" told him he would lose his job if he didn't join the Union. To the contrary, he was told that by a complete stranger and his reference to the stranger as an outside union organizer was a purely gratuitous characterization. In addition, the incidents described by Weisfeld in his prehearing statement assertedly occurred when "other employees were around." In his testimony at the hearing, Weisfeld did not repeat that assertion, and his description of what happened on February 20 does not suggest the presence of other employees. On direct, he was not asked about, nor did he testify to, any incident in March. When all the foregoing circumstances are considered, it is evident that no credence can be given to Weisfeld's testimony. Even where I to give credit to Weisfeld's direct testimony, however, I would deem the incident as he described it insufficient to warrant setting aside the election. Weisfeld had no reason to believe either that the Union was responsible for this threat, or that it would or T The record indicates that union members obtain tool insurance through the Union. It is not an item negotiated in collective-bargaining agreements JANLER PLASTIC MOLD CORP. could implement it. Given the additional fact that the incident occurred several weeks before the election, the likelihood of its having interfered with the election is at best speculative and is insufficient basis to warrant setting the election aside. The Alleged Threats to Gaspero There are two varieties of alleged threats to Gaspero. The first relates to mold repair work. Gaspero was an apprentice moldmaker doing meld repair work. The room in which he worked was a large room containing 60 moldmaking machines. He testified that on the day of, or the day before, the election, employee Wally Dinkel told him, in effect, that if the Union made it in Janler, he would have hisjob-but that if the Union lost, the large shop workroom would be converted over to press work. Gaspero understood this to mean there would be no mold repair work for him to do. Gaspero testified that Dinkel also told him that if the Union did not make it in the shop, all the repair work would be sent out and there would be no need for repairmen. The second variety of statements which are alleged to be threats of loss of jobs consists of statements by Dinkel on unspecified dates that employees Rosdahl and Jorge would be fired by the Company if the Union did not get in. Gaspero testified that Rosdahl also told him on the day of, or the day before, the election that if the Union didn't make it, he (Rosdahl) would lose his job and he had a wife and child to support. Another toolmaker, Jorge Basso, also told Gaspero that he, Basso, would get fired. Basso also told Gaspero there was not enough work, everything was going to Tucson, and that he should vote for the Union for protection. According to Gaspero, Basso repeatedly asked him if he had been notified he was fired. Respondent contends that the statements to Gaspero were threats of loss of job which interfered with the employees' freedom of choice in the election. In my judgment, "Discussion of this matter in the rubrics of threats not within the Union's power to carry out [is] inappropriate." N.L.R.B. v. A. G. Pollard Company, 393 F.2d 239 (C.A. 1, 1968). As is readily apparent from a review of the statements attributed to Dinkel, Basso, and Rosdahl by Gaspero, nothing contained therein related to actions to be taken by the Union to affect the job tenure of Gaspero. For this reason G. H Hess, Incorporated, 82 NLRB 463; Caroline Poultry Farms Inc, 104 NLRB 255, and Vickers Incorporated, a Division of the Sperry Rand Corporation, 152 NLRB 793, the three cases cited by Respondent in support of its position, are inapposite. All three cases dealt with some form or other of threats of union actions which employees could reasonably believe might result in their loss of employment, whereas here the statements in question relate to the intentions of the employer. As the court stated with regard to somewhat similar statements in A. G. Pollard, supra, the question is 8 It appears that Dinkel's prognostications were not made up out of whole cloth Respondent has a plant in Tucson and Vice President Klmgler testified that Respondent had been sending equipment and machinery to Tucson. 9 Vice President Klingler testified that Respondent ran a campaign 171 . . simply whether there was a substantially inaccurate statement as to the existence of a material circumstance likely to influence the employees' voting and hence affecting their freedom of choice; in other words, whether there was a substantial and material misrepresentation likely to be believed." I conclude that the statements of Dinkel, Rosdahl, and Basso did not constitute substantial and material misrepre- sentations sufficient to warrant setting aside the election. On their face, the statements of Rosdahl and Basso about the probable loss of theirjobs if the Union lost the election were not misrepresentations. They did not purport to report the existence of any condition or circumstance relating to job tenure generally, or even relating to their own job tenure. Rather, their statements were reflections of their belief that they would be discharged if the Union lost the election. As such, they were a form of appeal for Gaspero's support. They certainly had nothing to do with the job tenure of Gaspero who was not a union supporter, and as Rosdahl and Basso were not shown to be friends of Gaspero there is no reason to believe that their expressed fears of discharge would move Gaspero to vote for the Union in order to save theirjobs. The statements attributed to Dinkel and Basso regarding the discontinuance of mold repair work might be termed misrepresentations if they are construed as representations by them to Gaspero that Respondent had decided to discontinue mold repair work and to move it to Tucson or to farm it out. But neither Dinkel nor Basso represented that Respondent had made such a decision. Their statements related solely to their beliefs about Respon- dent's future intentions and neither Dinkel nor Basso offered any reasons to Gaspero for their assertions about Respondent's plans.8 As fellow rank-and-file employees they were in no better position than Gaspero to know Respondent's plans. Even if one accepts Gaspero's self- created status of Dinkel as an in-plant organizer, there would be no greater reason for Gaspero to suppose that Dinkel had access to Respondent's inner councils. Gaspero asserted, in effect, that he believed the statements of Dinkel and Basso. But the test is not whether he believed them; rather, the test is whether under the circumstances he could reasonably have relied on their assertions. Under the circumstances outlined, he could not. Nor, in my judgment, despite his protestations to the contrary, did Gaspero in fact believe Dinkel and Basso. Significantly, he never asked anyone in management about the matter. Had he really believed they knew what they were talking about, it appears to me he would have inquired about it.9 Alleged Threats of Loss of Draft Deferments The issue presented respecting draft deferments is whether or not the Union's agent suggested that appren- tices might lose their company-obtained draft deferments if they did not support the Union. In Gaspero's preheating statement to Respondent's attorneys, Gaspero had stated before the election and held two or three meetings of employees He did not specify exactly when these were held, but experience teaches that such meetings are normally held in the period shortly before the date of the election Klingler testified the meetings were open to questions and none was asked. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at a union meeting, Union Agent John Damas said he felt sorry for the apprentices. "He said that since the Company had gotten draft deferments for apprentices, they would not give them wage increases. He said that the Company would give one or the other. I understood that to mean that I might lose my draft deferment if I didn't support the Union." In its opinion, the court adverted to this statement and said ". . . such a statement by the Union' s assistant business manager might easily have influenced employee votes and should have been explored through a hearing" At the hearing, Gaspero was the only employee witness called by Respondent on this issue. Gaspero remembered Damas saying that he felt sorry for the apprentices, but he could not recall anything else said by Damas about draft deferments. He admitted, however, that Damas had not said that apprentices would lose their draft deferments if they did not vote the Union in. On the basis of Gaspero's testimony at the hearing, there is no basis for a finding that the Union's business agent, or anyone else, had threatened that apprentices would lose their draft deferments if they did not support the Union. Moreover, the fact that Gaspero did not support Respondent's position that the union business agent had threatened apprentices with the loss of draft deferments if they did not support the Union is not attributable to his loss of memory due to the passage of time. Even when the events were fresh in Gaspero's mind, he did not accuse Damas of threatening employees with loss of draft deferments if they did not support the Union. He had said, on May 16, 1970, in an affidavit taken by a Board agent during the investigation of the objections, that "Damas did not threaten us that we would lose our draft deferments, however." Despite the foregoing, it might be grounds for setting aside the election if the union agent had referred to draft deferments in such a way that employees understood him to mean that if they did not vote for the Union they would lose their draft deferments. In his April 8, 1970, statement, taken by Respondent's attorney, this was precisely the understanding that Gaspero said he had. But this was clearly art untrue statement because Gaspero testified at the hearing that he did not have a deferment and that he did not need one! Thus, it now appears that this issue of threats of loss of draft deferments had its genesis in a false statement in a statement procured from an employee by Respondent's attorney. On the basis of the foregoing, it is evident that the draft deferment issue was wholly distorted. What emerges from the record is that apprentice employees believed that it was Respondent's practice to trade on the value of draft deferments as a reason for withholding wage increases. Respondent's vice president denied Respondent had any such policy. On this record, I am not prepared to find that it did or did not. Employees apparently believed there was such a practice, and there is no evidence that the Union was responsible for the existence of such a belief. All that appears from the record is that the draft deferment issue was discusses among employees in conjunction with increased wages and in terms of what the Union could do for them. Such discussions were within the ambit of campaign propaganda which employees were in a position to evaluate. For the foregoing reasons, I shall recommend that Respondent's objection to conduct affecting the results of the election as it relates to this issue be overruled. The Kovacs Tally of Ballots The election of April 3, 1970, was held during working hours between 4.30 and 5:30 p. m. in a loading dock area which forms part of Respondent's shipping room. Employ- ees were free to leave their work at any time during the scheduled voting period for the purpose of voting. As the election was in process, apprentice mold maker Fred Kovacs was working at a surface grinder in a room adjacent to the voting area. There was a large door opening into that area and from the surface grinder Kovacs could see the voting. As each employee voted Kovacs made a tally of his evaluation how each employee had voted on a small piece of paper in the following fashion: 1111. After all the employees had voted except Kovacs, Kovacs made the remark "This vote will decide it" and he proceeded to the election table, procured a ballot and voted. The official tally of ballots shows that 21 votes were cast for union representation and 20 against. Respondent, under the heading "Electioneering," con- tends that on the basis of Kovacs' conduct the election should be set aside, citing in support of its position Belk's Department Store of Savannah, Ga., Inc., 98 NLRB 280; and International Stamping Co., Inc., 97 NLRB 921. But neither of those two cases dealt with electioneering; rather, both involved the application of Board policy which prohibits anyone from keeping any list of persons who have voted, aside from the official eligibility list used to check off voters as they receive their ballots. This policy was adopted in the interest of free elections and does not depend on a showing that there was actual interference with the free choice of the employees voting in the election, International Stamping, supra, although the policy does require a showing that the employees knew that their names were being recorded. Piggly-Wiggly #011 and #228 Eagle Food Centers, Inc., 168 NLRB 792. The issue presented, then, is not whether Kovacs engaged in electioneering as such (there is no evidence he did) but whether his conduct falls within the policy enunciated in the cited cases. When the Regional Director overruled Respondent's objection based on Kovacs' tally, he pointed out that the tally did not consist of a list of the names of voters, but he did not hold that the tally did not come within the policy enunciated in the cited cases by reason of that fact alone. He added ". . . there is no evidence that those persons voting were in any way aware of what he was doing." Accordingly, he concluded that Kovacs' action in keeping the tally was not coercive and did not destroy the laboratory conditions necessary for a Board election. As the record indicates, the Board affirmed him without comment on his disposition of this issue. The court disagreed with the Regional Director's conclusion that there was no evidence that employees voting were aware of what Kovacs was doing and remanded the issue to the Board for further proceedings. It JANLER PLASTIC MOLD CORP. 173 would appear therefore, that the court could see no factual distinction between Kovacs' tally and an unauthorized list of eligible voters, and that it was of the view that upon a showing of awareness among employees that he was keeping such a tally the election should be set aside. Accepting this view as the law of the case, I have analyzed the record to determine what evidence there is that employees were aware of what Kovacs was doing. The record in that regard is far from satisfactory. The mair, source of dissatisfaction with the record stems from the fact that a determination as to what occurred depends entirely on Gaspero, a thoroughly unreliable witness, careless in his answers and defensive of them when pressed. Kovacs, the one responsible for this issue ever arising, was a more reliable witness, yet he was not entirely candid, particularly, in describing his movements and contacts with other employees during the election. I have already described how Kovacs was at his machine during the voting, that he could see the voting area, and that he was keeping a tally of the voting. This is undisputed. It is also undisputed that he left his machine during the voting. According to Gaspero, Kovacs was "all over," he was 15 feet away from the voting booth, he would walk around Wally Dinkel's table, or he would sit at the bench of one of the moldmakers named Joe, drawing or writing on a piece of paper. As he walked around, he allegedly talked to other employees that had either voted or were waiting to vote. After all the other employees had voted, Kovacs, waving a paper, got up from where he had been sitting at Joe's table, and said loudly "this is the ballot, this is the last one, I'm going to make the decision." He walked to the voting booth and entered it. Kovacs denied that he was "all over" or running around during the voting period. According to him, he was at his machine during the voting and he was keeping a tally of the votes based on his evaluation of the employees' sentiments. This tally was on a small piece of paper on his machine. Some of the employees going to vote passed by his machine, but 6 feet away. After about 30 employees had voted, he walked over to the other side (apparently the mold making area which is near the area where the voting was taking place) and he spoke to employees who were gathered there and told them what his count was. He could not remember whether it was 15 for and 15 against at the time, or 20 and 10. Kovacs admitted that before voting he "made a comment like, my vote will decide, I think something like that." He could not recall waving a piece of paper. There are several discrepancies between Gaspero's version of Kovacs' actions and Kovacs' version. Upon analysis, however, they are not critical to decision. Thus, it is clear that Kovacs was not "all over" or "running around," exaggerations typical of Gaspero's testimony, but Kovacs was, as he admitted, away from his machine before the voting ended and he did talk to employees. However, there is no evidence that he spoke to any employee who had not voted. Gaspero's own testimony indicates that he first became aware of Kovacs when Gaspero was in line waiting to get his ballot. At the time he saw Kovacs about 20 feet away at Joe's table, drawing or writing. Gaspero did not know what Kovacs was doing. He voted and then congregated near Dinkel's bench with other employees who had voted and it was from there that he heard Kovacs announce he would be casting the deciding vote. It is evident both from Gaspero's description of events and Kovacs' that after employees voted they congregated at a point about 20 feet from the voting area, and it was these employees who Kovacs spoke to. Gaspero had no way of knowing who had or had not voted, and his testimony that he saw Kovacs "[w]alking around, talking to the other employees that had been either voting or waiting to vote" is simply not supported by the record and was another gratuitous observation of his that is not worthy of credence and which I reject. As to the conversation admitted by Kovacs, he testified they were with employees who had voted, and I credit him. It is significant that Respondent presented no employees who were aware of the tally before they voted. The only witness, Gaspero, knew only that Kovacs was writing or drawing on a piece of paper and he testified he did not know what Kovacs was doing and Kovacs' behavior did not influence his vote. On the basis of the record herein, I conclude that there is no showing that employees who had not voted were aware that Kovacs was keeping a tally of the votes. As to Kovacs' statement that he would cast the deciding ballot, it could not have affected the election results because it was uttered after all other ballots had been cast.10 (Kovacs testified he was "one of the last" to vote, but it is clear from Gaspero's testimony and the statement itself that Kovacs was the last. Respondent does not contend otherwise.) On the basis of the foregoing, I conclude that Kovacs' conduct did not warrant setting aside the election and I shall recommend that the objection relating to such conduct be overruled. Summary In remanding this case for further proceedings, the court indicated that the combined effect of all the objectionable acts should be considered in deciding whether there had been interference with the right of employees to express a free choice in selecting a bargaining representative. As the conclusions reached above indicate, there is nothing to combine. In its brief, in arguing against a strict application of agency principles as a necessary predicate for setting aside the election, Respondent asserts that ". . . the mere fact of an atmosphere of fear and coercion created by statements of union supporters will be enough to invalidate an election." Granted such is the test, Respondent has failed to show the existence of an atmosphere of fear and coercion in this case. Out of 41 employees who cast valid ballots, including 20 against union representation, Respon- dent could only produce 2 and relied principally on one, Gaspero, who has been shown to be thoroughly unreliable. In short, Respondent has failed to meet its burden that there existed an atmosphere of fear and coercion. 10 See Wald Sound, Inc, 203 NLRB No 61, fn I 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The record does not support a finding of objectiona- ble conduct affecting the results of the election as specified by Respondent in its objections to conduct affecting the results of the election in Case 13-RC-12101. 2. The Union was entitled to certification as exclusive representative of Respondent's employees in an appropri- ate unit. On the basis of the foregoing findings of fact and conclusions of law, and on the entire record before me, I recommend issuance of the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby overrules the objections to conduct affecting the results of the election; affirms the certification of Pattern, Mold & Model's Association of Chicago and Vicinity affiliated with the Pattern Makers League of North America, AFL-CIO, as the representative of the employees in the appropriate unit ; and orders that Respondent, Janler Plastic Mold Corporation, take the action set forth in the Order previously issued herein on June 15, 1971, at 191 NLRB 162.