VCA Sterling, Inc.

VCA STERLING, INC VCA Sterling, Inc. and International Union of Electri- cal, Radio and Machine Workers, AFL-CIO-CLC. Cases 6-CA-6761 and 6-RC-6476 February 21, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 31, 1973, Administrative Law Judge Benjamin A. Theeman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief and the General Counsel 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 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, VCA Sterling, Inc., Erie, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the election held on May 24, 1973, in Case 6-RC-6476 be, and it hereby is, set aside, and that Case 6-RC-6476 be, and it hereby is, remanded to the Regional Director for purposes of conducting a new election. [Direction of Second Election and Excel;.dr foot- note omitted from publication.] DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Administrative Law Judge: The complaint i in Case 6-CA-6761 as amended at the hearing2 alleges that VCA Sterling, Inc. (Respondent) during the month of May 1973 has engaged and is engaging in unfair labor practices affecting commerce 209 NLRB No 28 127 within the meaning of Sections 8(a)(I) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. 151, et. seq. (the Act) by (a) Tom Fousette3 and John Patton interrogating employees concerning their activities and sympathies on behalf of International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (the Union); and (b) Tom Fousette and David Ashby threatening employees with economic reprisals if the employees selected the Union as their collective-bargaining representative. In its answer, Respondent admits certain jurisdictional facts but denies (a) that Fousette was a representative, agent, or supervisor and (b) all other allegations of the complaint. In Case 6-RC-6476, a stipulation for certification upon consent election was executed by Respondent and the Union and approved by the Regional Director for Region 6 on May 9, 1973.4 An electicn was conducted on May 24, 1973. The tally of ballots showed 177 eligible voters. 171 votes were cast of which 89 were against, and 82 were for the Union. On May 29, 1973, the Union filed timely objections to the election.5 After investigation it appeared to the Regional Director that the objections raised substantial and material issues with respect to the election which should be resolved on the basis of record testimony at a formal hearing. On July 31, 1973, the Regional Director issued an order consolidating the RC case with the CA case for the purposes of taking testimony. Pursuant to notice, the hearing in this consolidated case was held in Erie, Pennsylvania, on August 27 and 28, 1973.6 All parties appeared and were represented by counsel.? They were given full opportunity to participate, adduce evidence, examine and cross-examine witnesses, i Issued on July 31, i973, based on a charge filed on June 7, 1973, by International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, a first amended charge filed on June 22, 1973, and a second amended charge filed on July 26, 1973 2 The General Counsel's motion at the hearing to eliminate allegations contained in the complaint with regard to certain actions of David Ashby on or about May 10, 1973, Phil Patton on or about May 22, 1973, and John Patton on or about May 23, 1973, was granted without objection No testimony was offered on any of these allegations at the hearing The General Counsel's later motion at the hearing to amend the complaint to conform to the proof as to dates and names was granted The record does not show that Respondent was misled or prejudiced by the latter motion in any manner 3 Spelled "Foessett" in Respondent's brief 4 The certification petition was filed April 26, 1973 5 Originally, the Union filed objections numbered I through 9 By letter dated July 26, 1973, the Union withdrew all the objections except 2, 3, and 5, which follow (2) The Employer deliberately persuaded the employees to vote against the Union by promising wage increases and other benefits (3) The Employer interrogat, d employees about their activities on behalf of the Union (5) The Employer requested alleged loyal employees to solicit votes in favor of the Company Objection 3 in essence is the same as the allegation of interrogation contained in the amended complaint Objections 2 and 5 were in essence the same as allegations pleaded in the complaint before the complaint was amended, and which allegations were eliminated from the complaint by the first motion of the General Counsel referred to in In 2 6 All dates hereafter mentioned are 1973 7 The Union appeared by its International representative He was present the first day but not the second day of the hearing His absence the second day was noted on the record Through the General Counsel, the union representative advised that he had no witnesses to present, did not (Continued) 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and present oral argument. The General Counsel submit- ted a brief solely in support of the matters alleged in the complaint. The Respondent also filed a brief. The Charging Party filed no brief. The briefs have been read and considered.8 Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent, a Delaware corporation with its principal office located in Erie, Pennsylvania, is engaged in the manufacture and nonretail sale of metal closures .9 During the 12-month period preceding July 1973, Respondent purchased and received goods and materials valued in excess of $50,000 directly from points outside Pennsylvania for use at its Erie facility. During the same period, Respondent shipped goods and materials valued in excess of $50,000 from its Erie facility directly to points outside Pennsylvania. It is found, as admitted, that Respondent is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION It is found, as admitted, that the Union is and has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues in this case have been adequately set forth in the Statement of the Case above. B. Credibility of Witnesses The issues in this case depend entirely upon the resolution of the credibility of the witnesses. This is not an easy task. Insufficient corroborative testimony appears in the record. In determining the conflict, the testimony of all witnesses has been considered. In evaluating the testimony of each witness, demeanor was considered. In addition, inconsistencies and conflicting evidence were considered and set forth with particularity herein. The absence of a statement or resolution of a conflict in specific testimony, wish any continuance because of his absence, and would rely on the evidence adduced by the General Counsel. 8 No opposition has been received to motions by the General Counsel and Respondent to correct the transcript. The motions are granted and the motion papers are ordered filed and made part of the record. 9 For a description of metal closures, see section III,C, below. 10 Examples of Fousette's unreliable testimony. In his morning testimo- ny on August 27, Fousette stated that when hired by Phil Patton an understanding was reached that "this was a training, this was understood between himself and I that I had no supervisory authority." After lunch, Fousette changed this testimony. He denied that there had been a mutual understanding. He stated that "this was my interpretation." Similarly in his morning testimony, Fousette stated that he represented himself "to the employees working in production as a trainee for management (and that I they were aware of the fact that I was a trainee for management." After or of an analysis of such testimony does not mean that such did not occur. See Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161. Further, to the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony." N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2) reversed on other grounds 340 U.S. 474 (1951); N.L.R.B. v. United Brotherhood of Carpenters, 230 F.2d 256, 259 (C.A. 1, 1956); cf. N.L.R.B. v. Florida Citrus Canners Co-op, 288 F.2d 630, 638 (C.A. 5, 1961). Tom Fousette did not impress me as a reliable witness either from his demeanor or his testimony. The latter was vague in places, contradictory, and inconsistent. At times it was contradicted by Philip Patton, president of the Respondent.10 As more fully set forth in section III,H,2 hereafter Judith Black Sherry was not considered a reliable witness. C. Background Respondent's business is the manufacture of metal closures, i.e., "several hundred types of parts from gas masks to cottage cheese lids to decorative metal closures for the cosmetic industry." The daily production ranges from 2 to 3 million pieces. The Company employs approximately 200 production employees on a hourly basis. The manufacturing process is from 8 to 10 operations housed in a plant of about 130,000 square feet covering two city blocks in length. Phillips E. Patton is president. John Patton is vice president of operations. Frank Vella is the plant foreman. David Ashby is manager of the decorating and shearing department. Tom Fousette since early July was assistant production manager. Prior to that date and during May, he was a management trainee." D. Tom Fousette was a Supervisory Employee during May 1973 Fousette was hired by Respondent as "a management trainee in production," 12 by letter dated April 2 signed by Phillips E. Patton. According to its terms Fousette would be prepared for and placed in a slot where he showed "the most potential." His "initial exposure would be a training period in Production Control" starting "at $7500 per year with a review after six months." 13 A little later that week Fousette called Phil Patton to accept the letter and was lunch he denied this statement stating that he "had assumed that the workers had known what I was there for, you know, in a training status" Later in this testimony Fousette testified that as he went around the shop he introduced himself to the employees as a production trainee or a trainee in production. Fousette testified positively as to his recall about conversations with members of management but a conversation with the production and management employees, he could not remember time, specific matters it. conversations with them, or specific matters about his duties while training. 17 It was stipulated that as assistant production manager, Fousette was a supervisor. The issue herein is whether Fousette prior thereto as a management trainee was a supervisor. 12 This was the term applied to Fousette's position during the hearing by Patton and Fousette. 13 This period was in fact reduced to a 90-day review. VCA STERLING, INC. told to report on April 9 to John Patton who would turn him over to Frank Vella for instructions. It would serve no purpose to go into the details of the testimony of the functions performed by Fousette dunng his training period. The record clearly shows that it was generally known that he was a "management trainee in production." 11 In that capacity during the month of May, Fousette actually transferred employees from one pro- duction line to another, directed employees as to what work to do on a particular line, directed floor boys to do different jobs or perform their work in a manner other than the manner in which they were then doing the work.li Fousette in general testified that the authorlty that he had to make the above changes was subject to the approval of Frank Vella. But the record clearly shows that Fousette, as a matter of course, effectually made the work changes and that in many instances they remained as changed. On some occasions, Fousette corrected the change after checking with Vella and being informed that he had made an error. The significant fact is that Fousette actually made the changes, and subsequently the corrections. When Fousette made an error in judgment he was told to correct the error. There is no evidence that he was criticized for exercising authority he did not possess or informed that he had exercised authority he did not possess as a manage- ment trainee. It is clear from the foregoing that Fousette had the authority and the responsibility effectively to transfer employees from one position to another. It is clear from the foregoing that Fousette even though a "trainee" used his independent judgment in responsibly directing the work of the employees on the production line. Further that he effectively accomplished these changes with the knowledge of and under the approval of Vella. The fact that he was in a training status is of no consequence particularly where he actually and effectively exercised authority and used independent judgment to direct, instruct, and change the work of employees.16 The facts stated above are a sufficient basis for a finding that Fousette is a supervisor. The record contains other evidence of Fousette's 14 Fousette admitted to this title in his interview with the Board's representative 15 DeWolfe an employee of 9 years testified that Fousette's eventual job was to "assist Frank Vella" and that in May Fousette was learning by doing The following testimony was in response to questions by Respondent's counsel Q (By Mr Zamboldi) You say he was learning, did he in fact do any of those things? A Yes, at times when it had to be done he had to learn it, so he had to do it at different times. Q. For example what? A. Like we finished an order and he'd go up and take the count off of the counter. he'J take the order down and take it back up to the office and he would tell us we were changing over to something else or ie-scheduling us for another Job. He wouldn't do it continuously, but at different intervals I would say iS See Illinois Power Company, 155 NLRB 1097, 1098, and note how the objection raised in the dissenting opinion (p. 1.100) is overcome by the facts in this case 17 See Great Central Insurance Company, 176 NLRB 474, 475 i" Section 2(11) of the Act states. The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances. or effectively to recommend such action, if in connection with the foregoing the 129 supervisory capacity . In light, however, of N.L.R.B v. Metropolitan Life Insurance Co., 405 F.2d 1169 (C.A. 2, 1968), it would only lengthen this decision unnecessarily to list them. Metropolitan Life and Board decisions 17 hold that Section 2(l 1) of the Act i8 speaks in the disjunctive; that to constitute a person a supervisor it is sufficient to show that the person performed any one of the functions, or in the performance of his duties, possessed one of the enumerated powers and responsibilities and duties set forth in the Section . Fousette's exercise of his responsibilities and duties as above stated clearly come within these holdings.iy E. The Conversation Between DeWolf and Fousette Geraldine DeWolf was a press operator working in the Uni-shell department of Respondent. She had been an employee for 9 years at the time of the hearing. In early May, DeWolfs machine went out of order. Fousette spoke to her about it. The conversation continued from there. Fousette asked her how she felt about the union business. She replied she didn't care one way or another. Fousette hoped the Union didn't get in, that things would be different, that there would be no scheduling of the girls. When asked what he meant, Fousette told DeWolf, that the girls would be on one line which they would have to run day in and day out. Fousette denied that he had had such a conversation with DeWolf. He admitted that in May, including the early part of May, he had held discussions with DeWolf. He was unable to recall what the conversations were about, but testified that he did not ask her "how she felt about the union or how she intended to vote. "20 DeWolf though somewhat diffident and uncertain in her testimony impressed me as a reliable witness.21 Her version of this conversation is credited. The full implication of Fousette's statement is that if the Union came in the work done by the employees would become more tedious and irksome. The employees would have no change in duties. They would not be assigned from exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment is This conclusion is supported by the following additional facts. For example. Fousette was hired and employed on a salaried basis as were all management employees, but the production and maintenance employees were on an hourly basis. Fousette attended management meetings commencing about May I At these meetings union matters were discussed Hourly paid employees did not attend such meetings . This latter aspect is sharply pointed up by the comparison of Fousette with Reichel. The exact job that Reichel had was not clearly shown in the record Reichel was an hourly paid employee and a member of the unit. He voted in the union election lie performed some functions of directing employees at their machines and scheduling their work The record does not disclose that he made the same work changes as did Fousette nor that he attended any management meetings . Vella, when he introduced Fousette to Reichel, told the latter to help Fousette out as much as he could Respondent 's attempt to show that Fousette was not a supervisor during his training period by stating that Fousette was in the same status as an employee as was Reichel does not hold up '0 It is noted that DeWolf did not testify that Fousette had asked her "how she intended to vote " 21 "This finding takes into consideration the facts that DeWolf gave the Board two affidavits one dated 'June 13 and the other August 23, that the statement concerning the conversation occurs in the later affidavit taken about 4 days before the hearing, and the record does not account for the lack in the earlier affidavit or the presence in the later one 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job to job as was the custom but would be restricted to one machine and do one job. Respondent raises the question whether the statement is coercive because DeWolf did not regard Fousette as a representative of Respondent or a supervisor. The record does not bear out this contention. DeWolf testified that she knew he was a "trainee of some sort" who "was being broke in on the job," to assist Frank Vella. In addition, though DeWolf in response to the question "But he never gave you orders at that point in time" answered "No, he was learning," the record shows that when she detailed the activities that took place Fousette was in fact giving her orders.22 The record clearly shows that Fousette was not another hourly production and maintenance employee and that DeWolf and other employees understood the distinc- tion. Regardless of whether DeWolf gave weight to his statement or not, or whether she considered it coercive or not,23 there is no doubt that such a statement under this circumstance was and is coercive. The Act proscribes such behavior. F. The Conversation Between Fousette and Toflinsky Barbara Ann Toflinski was employed by Respondent as a punch press operator for approximately 15 years. She left in June, at which time she was working in the miscellane- ous and aerosol department. Toflinski and Fousette had a conversation in early May. According to the credited testimony of Toflinski, the conversation went as follows: Q. How did this discussion begin? A. Well he came over and was complaining about how he just couldn't seem to get organized on the job and he just started talking about how he didn't know what to do and how to maneuver his way around because it was hard when you're first breaking in on a new job, it's hard to figure out what to do and how to do things without having somebody with you constant- ly, they just tell you to go do this and go do that and expect you to know what you're doing.24 Then he asked me what I thought about the union and I told him I didn't know and he said pertaining to the union that things wouldn't get any better around here, they would get worse if the union got in. Q. And what did you say? A. I told him that I had worked there for fifteen years without a union so it didn't make any difference to me one way or the other if the union got in or not. Q. Was anything discussed further that you recall by either him or by you during this conversation? A. After I said that he made a remark that-he said things are really going to get-be different around 22 Sec In. 15. 23 DeWolf testified she "did not think , that much of it." 24 Both Phil Patton and Fousette himself admitted that Fousette had griped about his job, the conditions under which he worked and that he did not find "running the plant" an easy job. 25 Visits to the bathroom. 26 It is considered that this testimony though of no especial weight is further support for the conclusion that Fousette was a supervisor. As a nonsupervisory employee there would be little reason for Fousette to be "astounded" at the practices of the girls . But the use of the word and the here if the union got in and I asked him if he had worked in any union shops before he had worked there and he said yes, but he didn't state the places or anything of where he was working at. Q. As best as you can recall, what were his exact words about how things would be or what he said in that reference as to what would happen if the union got in? A. Well he just said that things would get alot rougher around here, you wouldn't be able to take your walks and your smokes and things that you're doing now if the union got in. Q. Was anything further discussed that you recall at that time? A. No. Q. How did the conversation close? A. Well he said that he really didn't like to talk about the union and I said well I didn't either so why don't we just drop the subject and then he walked away. Fousette recalled that he spoke to Toflinski in early May; that the subject of breaks and walks25 came up; that he told Toflinski "it astounds me the number of walks the girls take in the shop"; he did not deny that the subject of the Union came up because he remembered he told Toflinski that he had previously worked in a union shop. However, Fousette testified vaguely that while he knew the Union was discussed he "felt that the question was initiated by Barbara [Toflinski]." Further, he stated he could not "recall anything else, no, I would say that I can't say completely that nothing else transpired but I don't remember it if it did." Toflinski denied that Fousette had said he "was astounded" but did make the statement that if a union got in the girls would not be able to take as many breaks or walks as they did. It has already been stated that Fousette was considered an unreliable witness. His vague testimony of the conversa- tion supports that conclusion. The quoted version of Toflinski is credited as the conversation that occurred. Support for that finding is also found in the statement of Fousette's that he told her that he "was astounded." There is doubt that he used that word, but what is significant in the use of the word is the fact that Fousette considered the practice of the girls so unusual and a cause for wonder- ment. Nothing in Fousette's testimony shows why he brought up the matter of the practice of taking frequent breaks, or why it was of such importance that he should be astounded at the practice.26 The more reasonable probabil- ity is that he discussed the "breaks" and "walks" matters using the language testified to by Toflinski. Upon the records as a whole it is so found, and further that the threat of worsened working conditions is proscribed by the Act.27 reference to the practices carries with it the flavor of a person in a supervisory position. 27 This conclusion is based on the determination that Toflinski was considered a credible witness. It took into consideration the fact that Toflinski like DeWolf gave two statements to the Board , one dated May 24, the other June 7. In her case, neither statement bore an account of the conversation with Fousette about "breaks and walks." As with DeWolf, no accounting for the omission in the affidavits is contained in the record. Toflinski when asked stated that it was her best recollection that the above statement about reduction in "breaks and walks" was said. When she VCA STERLING, INC. G. The Conversation Between Marjorie Hokenson and David Ashby Marjorie Hokenson was a setup operator in the shear department since September 18, 1972 . She left Respon- dent's employ on August 16 . The night of May 22 David Ashby and she held a conversation. According to her credited testimony the conversation with Ashby went somewhat as follows: The night of May 22, Hokenson went to Ashby's office to discuss an operating problem about shearing metal. When she was about to leave Ashby told her he had another problem to talk to her about: 28 ... and I said something bad and he said no, not that bad and he went on to continue to say, `you know. you have a pretty good level head on your shoulders' and he said you know that the union is trying to negotiate to get in here and I said yes. He said `well, you know I wish that maybe you could talk to the other people and try to tell them of the favors and close contact that you have with the Pattons now' and he said. `You know, you've had favors before from the Pat tons' which he commented on a loan which I had previous to this and he said, `you know, if the union gets in here you wouldn't have these kind of favors or the close personal contact that you do now. Q. Were any favors other than the loan mentioned that you recall? A. No. Q. Was anything further discussed in this conversa- tion with Mr. Ashby that you recall? A. Yes, we were walking out of the office at the time and I asked him if we could work my shift, which was three thirty until midnight if we could work until two in the morning and he said no, and I said well in order to catch up with the overtime that the day crew had I wanted to work my girls until two o'clock the rest of the week which would be eight hours to catch up with their overtime and he said no, he said and if the union gets in here, he said we'll go by seniority and not by crew. I don't have to give one shift more overtime than the other. Ashby admitted that he held the conversation with Hokenson on May 22, that the union election was discussed and that he asked Hokenson to answer the questions of other employees about the Union . His version of the conversation does not contain a reference to "favors" or "loans" nor does he deny that they were mentioned. Further he admitted that he spoke to Hoken- son on many occasions; that he spoke to her about overtime after the election on May 24; that he was not sure that the May 22 conversation included a discussion about overtime but that it might have and that he was not certain of everything that was discussed on the May 22 conversa- tion. Ashby in effect was attempting to deny the Hokenson testified, the impression was made that it was her best recollection It is recognized that a witness ' memory should be better the nearer the recall is to the event It is also recognized that many instances occur where statements are given to Board representatives where for various reasons factual matters are omitted. 28 The quotation is from Hokenson's testimony 29 Ashby knew of tie loan to Hokenson because he was her point of 131 version of the overtime portion of the May 22 conversation but he did not actually deny that the Union was mentioned. His attempt at denial is not credited. Conclusions with Regard to the Hokenson-Ashby Conversations Hokenson impressed me as a reliable witness who as Ashby stated had a "good level head" on her shoulders. As stated above her testimony is credited. The record indicates that the loans to employees and personal contacts with the Pattons were benefits that accrued to the plant employees.29 Ashby stated that with the advent of the Union these benefits would be terminat- ed.30 Further, it was clear that the threat to discontinue overtime on a crew basis and to grant overtime on a seniority basis would also lessen the benefits the employees had received prior to the advent of the Union. The request by Ashby that Hokenson answer questions of employees favorably to Respondent and the threats of diminished benefits if the Union came in are unlawful under the Act. It is so found. H. The Conversation Between John Patton and Norma Jean Dolph and Judith Black Sherry 1. Patton and Dolph Norma Jean Dolph was a punch press operator em- ployed by Respondent since May 13, 1960. On May 18 she informed Frank Vella that she was quitting on May 19. John Patton -31 talked to DeWolf on May 18. Dolph testified that the conversation with John Patton went as follows: Q. How did the discussion begin? A. He was walking by my line and he just said, `I heard you are quitting' and I said yes. Q. Was anything further said? A. Yes, I had told him that I got a betterjob that I couldn't get any place there, I was trying to get on the hand feed and Frank Vella kept giving me the run around that they didn't need hand feed operators, yet they would hire new girls and put them on that jobs and he asked me what I thought was going to happen with all of this union activity and I said I really didn't know. Q. Was anything further mentioned by you or by him after you said you didn't know? A. Yes, I had told him that I heard somebody went in the office and said that Barbara Toflinski and I had started it. Q. Started what? A. The union and Ijust wanted him to know that it wasn't true. Q. And what did Mr. Patton say? A. Well, he said that he heard that a couple of contact when she made the loan. 30 Ashby stated that it would be the Union that would prevent the loans from continuing No basis for such a change was offered by Ashby it is considered that the statement was a thinly disguised method of stating that the Company would discontinue its loan policy ii As vice president he was in charge of operations. i e., everything that happens outside the office 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people had been pulled into it and I said well it wasn't really pulled into it, but we had not started it. Q. Was anything further discussed at this time that you recall? A. I don't think so. John Patton testified that the conversation with Dolph went as follows: Q. Would you relate to us what happen in that conversation? A. Well, I had just heard that Norma Jean had given a one day quitting notice and as usual, in my practice I went over to her to-as to any employee who is quitting and her in particular I went over to and made comment that I see you're quitting tomorrow and I had expressed my surprise to her that in light of all of the union activity and knowing that she was involved in the union activity that I was surprised that she was quitting before the vote was to be taken and then she would not be involved in it. Q. Now let me stop you for one moment there, how were you aware that she was involved in the union activity? A. She had been down in your office at the consent signing agreement so I assumed from that show over there that she was in some way involved in it. Q. Did she made any response? A. Yes, during or after that statement or conversa- tion she responded back to me that-well, words to the affect that she wanted me to be aware that there were rumors going around in the office that she and another girl were organizers of the union and that she was not ,an organizer of it.' I acknowledged to that fact that some people get pulled in and get in a little over their head when they really had not intended to and that was about the end of it was active in the campaign because she had signed the consent agreement . The question as stated was general in import and content. It can easily be considered the equivalent to, "How do you think the election will come out?" The question neither contained nor referred to anything specific. No employees were referred to, not even Dolph herself. No specific union action was mentioned. Certainly nothing contained therein contained a promise of benefit or threat of reprisal. In the context of the testimony it has no more than a conversational effect. It is so found.32 2. Patton and Sherry Judith Black Sherry started working for Respondent on March 9 . She was in the Shear and then in the decorating department. She was discharged sometime after the union election33 admittedly because she missed too many days from work. Sherry testified that she held two conversations with Patton . The first occurred on the Tuesday immediately before the election and the second at approximately 10:30 p.m., the night of the election . These will be dealt with in that order. Sherry testified that the Tuesday conversation went as follows: Q. How did he start the conversation , I believe you made reference to something about how you liked your job and then he said something about a meeting, now what did he say about it? A. The president of the company, he was talking at a meeting before this, before I talked to John and he asked me if I thought that he got through to the people. Q. You mean whether the president had gotten through to the people at the meeting? Q. Do you recall any discussion in that conversa- tion about why she was leaving? A. Yes, I do believe it did come up, I had asked her again as I usually say, where the heck are you going, how come you are leaving here after you've been here for so long and the usual response which her response was, she was getting more money and she could get a better opportunity for improvement and she also mentioned the fact that some of the newer girls seemed to be getting further ahead faster than some of the older girls who were there and she didn't quite feel that that was fair. Conclusions as to the Patton-Dolph Conversation It is considered unnecessary to determine which version of this conversation actually occurred . The General Counsel erroneously contends that Patton's question, "what was going to happen in connection with all of the union activity" contained in the foregoing testimony constitutes a violation of Section 8(a)(1) of the Act. Assuming this question was asked of Dolph , it is difficult to find that it is proscribed. The record clearly shows that Patton knew that Dolph Q. Did Mr. John Patton say anything after that when you said you didn't know? A. He was talking to me about things and then he asked me if-he asked how my friends would vote and I told him I didn 't know. Q. Did he ask any other questions if you recall? A. I can't remember. Q. Did he ask anything about your voting, if you recall? A. He asked me if I was for the union and I told him that I was. Q. Was anything mentioned that you recall about strikes or contracts? A. He said if the union did possibly get in that there would be a lot of people that would quit because it wouldn't be what they expected. Q. And did this same conversation involve any discussion of contracts? A. He said he would lose a contract because they wanted a non-union shop to handle it. Q. Did the matter of money come up in connection with this discussion of the unions, do you remember? A. No. a2 Peerless of America, Incorporated , 198 NLRB No. 138, cited by the She was unable to remember when the discharge took place. General Counsel does not deal with so general a question. VCA STERLING, INC. 133 Q. Do you recall anything further that was dis- cussed? A. No, I can't remember. * * * * Q. . . . Now, do you recall who brought up any matter regarding the union dues? A. We got a slip of paper in with our check one time. Q. During your discussion with Mr. Patton that night, do you recall the matter of union dues coining up in your conversation? A. He said something about we wouldn 't be getting as much because the dues would takeup some of the money. John Patton testified that the Tuesday conversation went as follows: Q. Now let's refer to the first conversation that allegedly occurred, I believe, two nights preceding the election and subsequent to a speech given by Phil Patton, do you recall that conversation? A. Yes. Q. Would you relate for us essentially the nature of that conversation? A. Basically the nature of the conversation related to the speech that my brother had given and my comment on that speech was it was a pretty powerful forceful speech , it had a lot of fire and brimstone in it and that we had had some facts that hadn't been brought to light before and I thought it was quite impressive and it was quite an impressive speech and this basically was the gist of my comments. * * * * * Q. (By Mr. Zamboldi) Did you ask any questions concerning how she intended to vote? A. No. Q. Did you ask any questions concerning how her friends intended to vote? A. No. Q. Did you ask her any questions in the course of that conversation? A. No. Q. Did you make any reference to people quitting their employment if the union got in? A. No. Q. What sort of response did you get from her? A. 1 would say I got a very minimum response from her. Sherry testified that the conversation the night of the election went as follows: Q. Directing your attention to the night right after the election, did you have occasion to have any discussions with anyone from the company? A. When [ came it was about ten thirty, I was by the soda machine. I was talking to John again and I asked him if the union got voted in. Q. And what did he reply? A. He said it didn't. Q. And after this matter was discussed of your question, did the union get in and I believe Mr. Patton you testified said it didn't, was anything further discussed that you recall? A. He said it isn't any of my business and that and how did you vote and I told him that I voted for the union. Patton testified that he was unable to recall a conversa- tion with Sherry election night because he was not then at the plant. Patton testified: Q. (By Mr. Zamboldi) Explain the circumstances that lead to your inability to recall that conversation? A. I wasn't in the plant that night, it was after the election and after the vote had been counted and I left the office at approximately six thirty. My brother and Harry Dunn and yourself and Dan Griffin were there having a little celebration party and I had to leave approximately at six fifteen or six thirty to go to my mother's house where my wife was waiting for me to celebrate the winning of the election. Q. Did you spend the rest of the evening at your mother's house? A. Yes. Conclusions as to the Patton-Sherry Conversations As stated earlier Judith Black Sherry was not considered a reliable witness. She gave the impression of being confused. Her testimony in a number of instances was vague. She was unable to remember many things that occurred or conversations that took place. In sharp contrast she did remember with certainty the conversations that allegedly took place between John Patton and her. The record does not account for the sharpness of recall as to the latter and the failure of recall as to the former. Sherry, though she had a speaking acquaintanceship with Patton and knew of him, did not know he was vice president, did not know what his job was, nor what he did with the Company. Phil Patton gave a speech to the employees the same Tuesday that Sherry spoke to John Patton. Though present when given she had little or no recollection of the contents of the speech. She attended a second speech given by Phil Patton but didn't "remember what it was about" Both speeches dealt with the Union. Sherry stated she could not recall the Tuesday speech because it "was a long time ago." In fact it occurred the same day as the conversation with John Patton. When Sherry started her testimony she was confused as to which Patton gave the speech and which Patton was the one she talked to. The one specific item of the conversation with John Patton that Sherry recalled without prompting from Counsel was that Patton "asked how my friends would vote." Only after the General Counsel presented her in each instance with a leading question did Sherry remember that Patton (1) asked her about her vote, (2) told her that "a lot of people would quit" if the Union got in, (3) said Respondent would lose a contract if the Union got in because they wanted a nonunion shop to handle it, and (4) 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said "something about we wouldn't be getting as much because the dues would take up some of" their pay. On cross-examination she testified that when John Patton spoke to her that Tuesday night he asked her first if she thought that Phil Patton "got through to the people." She testified that after this "he told me he didn't feel that the Union should get in." She stated that nothing further was discussed. The discrepancy between her testimony on direct and on cross was not accounted for on the record. Her failure to testify on cross to any of the many items that she testified to on direct raises considerable doubt about their actual occurrence. For the foregoing reasons and the record as a whole the statement of John Patton that on Tuesday, he discussed no more than Phil Patton's speech with Sherry is credited and the Sherry version is not credited. The conversation between Sherry and Patton alleged to have occurred on the night of the election also presents a problem. Patton denied he was in the plant that night. Sherry testified she spoke to him. She also testified that one Bill Unger was present for a short period of time during the conversation.34 Neither the General Counsel nor Respon- dent introduced any corroborative evidence to support the testimony of their respective witnesses. Under the circum- stances and on the record as a whole it is found that there is insufficient basis for a determination that Patton was present at the plant on or about 10:30 p.m. the night of the election and Sherry held a conversation with him. IV. OBJECTIONS TO THE ELECTION The record does not give detail of the union organiza- tional campaign, except that the election resulted in the defeat of the Union. Neither does it detail Respondent's attitude and activities with regard to the Union other than as shown herein. As stated, the only objection upon which any evidence has been offered is objection 3 which dealt with interrogation of employees. The record shows that Fousette did interrogate DeWolf and Toflinski in a manner proscribed by the Act. It is found that such interrogation interfered with the holding of a free election under the laboratory conditions imposed by the Board. Accordingly it is recommended that objection 3 be sustained. The interrogations of Respondent found objectionable occurred in a setting of coercive threats that were proscribed by the Act. The totality of Respondent's conduct resulted in substantial interference with the election held on May 24, 1973, in Case 6-RC-6476. V. THE EFFECT UPON COMMERCE OF RESPONDENT'S UNFAIR LABOR PRACTICES The activities of Respondent set forth in section III, 34 Sherry's testimony about Unger was also vague and confusing. She was asked if anyone was present during her conversation with John Patton on election night. On direct examination Sherry stated, "A guy walked out, but I don't know who it was." On cross-examination she testified as follows: Q. And no one else was present when you talked to John, is that right? A. No-well, about five minutes before he left the kid that was working with me, he came back. Q. Then what happened? above, occurring in connection with Respondent's opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been further found that the Employer had engaged in certain conduct affecting the results of the election conducted on May 24, 1973, it is recommended that the election be set aside and that a new election be conducted by the Regional Director at an appropriate time. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. VCA Sterling, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Other than as above found, Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By illegally interrogating its employees and by engaging in threatening, coercive, and other conduct, as above found, Respondent unlawfully interfered with the freedom of choice of its employees in their selection of a bargaining representative on May 24, 1973. 6. The aforesaid conduct constituting unfair labor practices and conduct illegally affecting the results of a Board-conducted election is conduct affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER35 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that VCA Sterling, Inc., its officers, agents, successors , and assigns, shall: 1. Cease and desist from: A. Then when Bill came back hejust said hello to him and he was getting ready to leave. Q. Who was Bill? A. Bill Unger, UNGER, the kid that was working with me. ''' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. VCA STERLING, INC. 135 (a) Interrogating its employees concerning their union sentiments and activities. (b) Threatening its employees with cessation or reduction of benefits or with more onerous working conditions in the event they chose the Union. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization. to bargain collectively through repre- sentatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Post at each of its places of business in Ene, Pennsylvania, copies of the attached notice marked "Appendix." 36 Copies of said notice, on forms provided by the Regional Director for Region 6. after being duly signed by Respondent's 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 employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges any unlawful conduct other than that as above found, and that Objections 2 and 5 also be dismissed. IT IS FURTHER RECOMMENDED that the election held on May 24, 1973, in Case 6-RC-6476, be set aside, and that said case be remanded to the Regional Director for Region 6 of the Board to conduct a new election at slich time as he deems that circumstances permit the employees a free choice of a bargaining representative. 36 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall 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 Pursuant to the Recommended Order of an Administra- tive Law Judge of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employ- ees that: As the result of a trial before the Administrative Law Judge of the National Labor Relations Board, it was found that we violated the Act in the respects set forth in his Decision, and to remedy these unfair labor practices, he has recommended that we advise you that: WF. WILL. NOT coercively question any employee regarding his own or other employees' lawful union activity. WE WILL NOT threaten any employee that he or she will suffer the loss of any existing benefits or conditions of employment or will be treated less favorably because of union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of his or her right to join or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, or any other labor organization to bargain collectively through their representatives, or to engage in other concerted activity, or to refrain from such activity, except as such right may be affected by some agreement as provided in Section 8(a)(3) of the Act. All our employees are free to support or to become or remain members of International Union of Electrical, Radio and Machine Workers , AFL-CIO- CLC, or any other labor organization , or to refrain from such activity, subject to Section 8(a)(3) of the Act. Dated By VCA STERLING, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office. 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.