Fearn International, Inc.

232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fearn International, Inc., Eggo Foods Division and Sales Delivery Drivers, Warehousemen & Helpers Union, Local 296, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America Fearn International, Inc., Eggo Foods Division and Linda Hill, Petitioner and Sales Delivery Drivers, Warehousemen & Helpers Union, Local 2%, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. Cases 20-CA-8107 and 20-RD-843 February 25, 1974 DECISION, ORDER, AND DIRECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 23, 1973, Administrative Law Judge Louis S. Penfield issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, the General Counsel filed limited cross-exceptions and a brief in answer to the Respondent's exceptions and brief, and the Respondent filed a brief in answer to the General Counsel's cross-exceptions. 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 1 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 the complaint in Case 20-CA-8107 be, and it hereby is, dismissed in its entirety. i The Administrative Law Judge found that even if the January 25. 1973, conversation between Goza (a supervisor as found herein) and employee Augustin be deemed coercive, the effect appears minimal and does not warrant a remedial order and dismissed the complaint. Members Kennedy and Penello agree that the complaint should be dismissed on the ground that the single instance of interrogation by Goza does not warrant the issuance of a remedial order They note that the Administrative Law Judge found that no similar or related incident occurred thereafter, and that no other unlawful conduct on Respondent's part with respect to any employee in the clerical unit was alleged or established In view of these findings they 209 NLRB No. 37 DIRECTION It is hereby directed that in Case 20-RD-843 the Regional Director for Region 20 shall, pursuant to the Rules and Regulations of the Board, within 10 days of this Direction open and count the ballot of Irene Pacheco, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballot. MEMBER FANNING, concurring in part and dissenting in part: I agree with Member Penello and the Administra- tive Law Judge that Irene Pacheco was eligible to vote and that her ballot should be opened and counted. I further agree with the Administrative Law Judge's finding that Goza's interrogation of Augustin violated Section 8(a)(1). I do not agree that it was isolated, insignificant, and not coercive, or that a remedy is not warranted. As I stated in my dissent in Walgreen Co., d/b/a Globe Shopping City, 203 NLRB No. 36: The Board's mandate is to remedy unfair labor practices. The courts have held that when the Board finds unfair labor practices it must provide a remedy for them.3 The Act does not authorize the Board to give a respondent two bites of the apple before it applies its remedial powers. It is fundamental that to protect the Section 7 rights of employees, the Board must remedy unfair labor practices... . 3 See UA W [Omni Spectra, Inc ] v. N L. R. B, 427 F.2d 1330 (C.A 6), and United Steelworkers of America, AFL-CIO [Wagner Industrial Products] v. N.L.R.B, 386 F 2d 981 (C.A D.C) In considering the Goza interrogation,2 it must be noted that employee Augustin was hired by Goza and considered him to be her supervisor. On January 25, 1973, prior to the filing of the petition but after the decertification activity had been initiated, Goza dis- cussed the decertification petition and then asked her how she would vote, to which she replied that she was against the Union. Goza had a piece of white paper on his desk, separated into two columns marked "Yes" and "No." Goza put Augustin's name under the "No" column. He then queried Augustin as to her knowl- edge of the union sympathies of each unit employee believe that reliance by Member Fanning, who dissents on this issue (see separate opinion ), on other alleged conversations by Goza is unwarranted With respect to the challenged ballot of Irene Pacheco, Members Fanning (as indicated in his separate opinion) and Penello agree with the Administrative Law Judge's finding that Pacheco was eligible to vote and that her ballot should be opened and counted 2 Respondent did not call Goza as a witness even though his supervisory status was in issue and he was alleged to have committed the 8(a)(l) violation herein, only one inference can be drawn from Respondent's failure to call Goza. FEARN INTERNATIONAL, INC. and recorded her views as to each individual under the "Yes" or "No" column. Such an interrogation by a supervisor is a violation of Section 8(a)(1) and the cases which so hold are legion. The Administrative Law Judge noted only the January 25, 1973, interrogation in finding Goza's conduct isolated. He inexplicably failed to mention that, according to uncontradicted testimony,3 Goza followed up his original interrogation in the second week of February (after the petition was filed) when he told Augustin, "You know A] Ferrari (Respon- dent's comptroller and the supervisor of the clerical aspects of Respondent's operation) is very interested in how you are going to vote." Goza then asked Augustin how she would vote, and she replied probably for the Union. It is therefore clear that Goza's activity was not limited to one isolated incident.4 Of greater significance, however, is the fact that even if it be assumed, which, I do not (nor does the record so indicate), that the first interrogation was friendly or minimal in its effect, presumably because of Goza's low supervisory status or the fact that he was a union member, the same cannot be said with respect to the second interrogation where Goza indicated he was acting in behalf of Ferrari, one of Respondent's top management officials. Any doubts, if in fact Augustin had any, with respect to whom Goza was acting for, were resolved during the second interrogation. Goza's interference, in my opinion, became much more serious when he indicated he was acting on Ferrari's behalf. The Administrative Law Judge and my colleagues find it significant that there is no evidence Augustin spoke to other unit employees regarding the interro- gation. Even assuming this to be true, the Adminis- trative Law Judge's finding is irrelevant in the light of Board precedent which has refused to attempt a subjective determination of the effect of 8(a)(1) conduct on individual employees and instead has concluded that such conduct need only have a tendency to restrain or interfere with Section 7 rights. In addition, the Board has consistently held that the restraining effect is not limited to the employees directly involved in such incidents, and particularly during a critical preelection period.6 I would therefore find the 8(a)(1) violation and issue the required remedial order.? 3 The Adnunistrative Law Judge made no adverse credibility finding with respect to Augustin; Goza did not testify * Further evidence that Goza's activity was not isolated was provided by employee Conley, who testified, again without contradiction , that Goza queried her on three occasions as to how she would vote This testimony was also ignored by the Administrative Law Judge While the Conley interrogations were not alleged as violative of Sec 8(a)(1), her testimony clearly shows that Goza's activity for Respondent of ascertaining how the employees would vote was not limited to the one incident involving Augustin 5 On the other hand , there is likewise no evidence Augustin did not 233 MEMBER KENNEDY, concurring in part and dissenting in part: I agree with Member Penello that the Administra- tive Law Judge's dismissal of the complaint is corrects I am unable to agree with Members Fanning and Penello that Irene Pacheco was an employee eligible to vote in the decertification election. On the date of the election, March 16, 1973, Pacheco had not worked for the Employer in over 6 months. She left her job on September 8, 1972, in anticipation of the birth of a child. According to the Administrative Law Judge, during the following weeks Pacheco was not clear in her mind whether she had quit her job (as she had done in 1969 for the birth of another child) or whether she wished to return to work. Pacheco did file a claim for unemployment compensation which was denied by the state agency on the grounds that she had voluntarily quit her job with the Employer for domestic reasons. The crucial fact is that the Employer terminated Pacheco on November 17, 1972. It is undisputed that despite several inquiries made of her by the Employ- er, Pacheco refused to file a written request for leave of absence as required by the collective-bargaining agreement until November 10. By letter dated November 17. the Employer denied her request as untimely and separated her. Subsequently in mid-December 1972 the Union interceded on Pacheco's behalf and met with the Employer in an attempt to secure for Pacheco a vague qualified leave-of-absence status by which she waived any contractual right to return but would retain the right to recall if and when a vacancy occurred. Apparently, the Employer agreed only that it would rehire Pacheco as a new employee if and when a vacancy occurred, a contingency which had not occurred as of the date of the election. Further- more, no vacancy had arisen at the time of the hearing herein on May 3, 1973. Contrary to the Administrative Law Judge, the critical test is not whether Pacheco had decided in her mind to quit or whether the Employer correctly perceived her subjective state of mind. Rather, the critical fact is that on November 17 the Employer discuss the interrogation with other employees. 6 See Intercontinental Manufacturing Company, Inc, 167 NLRB 769; Leonard Refineries, Inc, 147 NLRB 488 ; Stayer's Johnsonville Meats, Inc, 174 NLRB 693. In this connection, note that Goza s second interrogation of Augustin occurred after the petition was filed, as did his questioning of Conley 7 Walgreen Co, d/b/a Globe Shopping City, supra, dissenting opinion: Leonard Refineries, Inc., supra, Metropolitan Life Insurance Company; 166 NLRB 553. 8 Walgreen Co, d/b/a Globe Shopping City, 203 NLRB No 36. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged Pacheco, and she was not an employee on the date of the election .9 Furthermore, the mere fact that she might be rehired at some future time as a new employee does not give her eligibility to vote in the election. The Employer's agreement to voluntari- ly rehire her when and if work might be available for which she was qualified put her no closer to employee status than any other separated employee who is advised that her former employer may subsequently rehire her if openings arise for which she is qualified . Inasmuch as Pacheco was not an employee on the eligibility date or the date of the election, I would sustain the Board agent's challenge to her ballot. For these stated reasons, in addition to dismissing the complaint, I would issue a Certification of Results in this case. 9 Otarion Listener Corp and its Subsidiary Audio Electronics Co, 124 NLRB 880 and upon my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Delaware corporation with a place of business in San Jose, California, where it is engaged in the processing of food products. In the course and conduct of such business operations during the past year, Respondent purchased and received goods and materials valued in excess of $50,000 directly from outside the State of California. I find Respondent to be engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and assertion of jurisdiction to be appropriate. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. DECISION STArEM ENT OF THE. CASE Louis S. PENFIELD, Administrative Law Judge: This consolidated proceeding was heard before me in San Jose, California, on May 3 and 4, 1973, with all parties represented. The complaint is based on a charge filed on February 23, 1973, by Sales Delivery Drivers, Warehouse- men & Helpers Union, Local 296, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union. The complaint, alleging a violation of Section 8(a)(1) of the Act by Fearn International, Inc., Eggo Foods Division, herein called Respondent, issued on April 5, 1973. On April 9, 1973, the Regional Director for Region 20 issued his report on challenged ballots in a representation proceeding involving Respondent, and an order consoli- dating Case 20-CA-8107 with Case 20-RD-843. In his report on challenged ballots the Regional Director noted that there were three ballots challenged, the determination of which could affect the results of the election. The Regional Director also concluded that the challenges raised substantial and material issues of fact, and that the alleged unlawful interrogation issue in Case 20-CA-8107 turned on a determination of the supervisory status of one of the challenged voters. Under the circumstances, the Regional Director concluded that the proceedings should be consolidated for the purpose of hearing, and that thereafter in conjunction with his decision in Case 20-CA-8107 the Administrative Law Judge should issue a report on the challenges. All parties were given full opportunity to participate in the hearing, and after the close thereof Respondent and the General Counsel filed briefs. Upon the entire record in this consolidated proceeding, i The name "Conley" is misspelled throughout the transcript as "Conlay." It is hereby ordered that the record be corrected wherever this III. THE CHALLENGED BALLOTS On March 16, 1973, pursuant to a stipulation for certification upon consent election, an election was conducted under the supervision of the Regional Director for Region 20 in a unit of Respondent's office clerical employees at its operation in San Jose, California. The tally of ballots served upon the parties at the conclusion of the election disclosed that of approximately 14 eligible voters, 6 cast ballots for and 6 against the Union. There were no void ballots but three ballots were challenged. These were the ballots of Geraldine Conley,' Irene Pacheco, and Ray Goza. Conley's ballot was challenged by Respondent on the ground that she was a temporary employee not eligible to vote. Pacheco's ballot was challenged by a Board agent because her name did not appear on the eligibility list. Goza's ballot was challenged by the Union on the ground that he was a supervisor excluded from the unit. We will first consider the issues raised by the challenges. A. The Challenged Ballot of Ray Goza The Union represents employees of Respondent at its San Jose operation in four separate units. This proceeding concerns only a unit comprised of Respondent's clerical employees. Such employees had been covered by a collective-bargaining agreement effective May 1, 1970, and to expire on April 30, 1973. The general manager of Respondent's San Jose plant is Robert S. Barton. Alfred A. Ferrari is the comptroller and has overall supervision of the clerical aspects of Respon- dent's San Jose operation. The clerical unit is comprised of approximately 14 employees. The majority of these employees work in an office performing various clerical tasks under the direct supervision of Office Manager Dorothy Williams. Three to four others, also in the clerical unit, are known as keypunch operators. Their work is misspelling occurs. FEARN INTERNATIONAL, INC. referred to as data processing , and is performed on machines located in an area which is separated by a glass wall from the room where the other clerical employees work. The keypunch operators spend full time at machines putting a variety of material concerning Respondent's operation on cards or tapes. The material so processed can subsequently be fed to a computer located in the same room, and later can be made into permanent records for use by Respondent at the San Jose plant or at Respon- dent's out-of-state headquarters in Illinois. Ray Goza is the principal operator of a computer located in the same area as the keypunch machines , and also helps in scheduling and programming all the keypunch work in a manner to be described more fully below. It is claimed by the Charging Party and the General Counsel that Goza is the immediate supervisor of the girls employed as key- punch operators . Respondent claims the supervisory authority over all clericals, including the keypunch operators, to be vested in Comptroller Ferran and Office Manager Dorothy Williams. Two of the keypunch opera- tors, Geraldine Conley and Georgia Augustin, testified extensively concerning their duties and the functions of Goza in relation to them . Ferrari and Williams also testified in this regard. Goza himself was not called as a witness. Goza first came to work for Respondent in its data processing unit in 1969. He was hired at that time by Carl Recktenwald, who was then classified as data processing manager, and admittedly possessed full supervisory au- thority over all employees doing data processing work. Goza was hired principally to do computer work, but he also assisted Recktenwald in programming and scheduling the data which was to be fed to the computer. Initially, Goza was an hourly paid employee who regularly punched a timeclock in a fashion similar to the keypunch operators. At some time prior to Recktenwald's departure from Respondent's employ in late 1971 , Goza was shifted from an hourly pay to a salary status. He still retains salary status, and unlike any other data processing employee, is not required to punch a timeclock. According to Ferran, Recktenwald's departure brought about no change of substance in Goza's duties or responsibilities . Ferran testified that he undertook to make it clear to boih Williams and Goza that all the delegated supervisory and administrative responsibility relating to the clericals, including those engaged in data processing, was vested in Williams. At all times Goza, although continuing to operate the computer in the same room as the keypunch operators, had an office adjacent to that room in which he also did a fair amount of work relating to the functioning of the data processing unit. While Ferrari's office was nearby, it does not appear that in his capacity as the overall supervisor of all clericals he regularly visited or undertook to oversee the day-to-day functioning of the keypunch operators. Dorothy Williams had a desk from which she could see through the glass wall into the data processing room, but she did not regularly visit the area or undertake to direct the work of the keypunch operators. Keypunch operators Conley and Augustin testified consistently and credibly that it was Goza alone who gave them directions on a day-to-day 235 basis, and shifted their assignments when priorities demanded that a particular job be done at a particular time. They further stated that they would go to Goza in the first instance when seeking to have their timecards initialed for correction, or asking permission to take time off. They testified that other keypunch operators turned to Goza for the same purposes . Each testified that while Dorothy Williams would on occasion deliver material to the data processing unit to be worked on, she had no familiarity with its technical operation and did not give them directions in any aspects of the work . They acknowledge that on occasion when Goza was not available, however, they would go to Williams to initial timecard corrections or to ask for time off. There was also testimony adduced concerning Goza's role in the hiring of new employees. Conley and Augustin testified without contradiction that each had received her first inquiry as to possible employment by way of a telephone call directly from Goza. Each also testified that she had subsequently been interviewed by Goza alone prior to her employment, and that at the conclusion of such interview she had been told to come to work. While Goza supplied each girl at the time of the interview with an application form which was subsequently filled out, filed and processed by Dorothy Williams, neither one was interviewed by Williams at any time prior to her coming to work. Ferrari acknowledges that he authorized Goza to seek and interview these employees, but he states that in both instances it was he who approved their employment after reviewing the applications and discussing the interviews with Goza. While admittedly Ferrari undertook no further interview of either employee before she actually reported to work, he claims that in addition to Goza's recommenda- tion he relied on knowledge obtained from other sources in approving their employment. Conley testified that in December 1972 Goza had told her that he had been given the title of data processing manager. Ferrari denies that Goza had ever been given such title, and, as noted above, Goza did not testify. Section 2(11) of the Act in pertinent part defines a supervisor as one with authority "to hire . . . assign .. . responsibly to direct [employees ] . . . or effectively to recommend such action . . . if . . . such authority is not merely routine but requires the use of independent judgment." Contrary to the claim of Respondent, I am satisfied that the record establishes Goza to have authority "responsibly to direct" employees and "effectively to recommend" their hire and that he is called upon to use "independent judgment" in the exercise of such authority. Goza came to Respondent at a time when its operation included a data processing manager with full supervisory authority over the employees in the data processing unit. It is not shown that with Recktenwald's departure substantial changes took place in Respondent's data processing. Goza appears to have been Recktenwald's principal assistant, and at some point before the latter's departure his status had been recognized to the extent that he was put on a salary, and not required to punch a timeclock. When Recktenwald left, Respondent did not specifically transfer 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his title to Goza, but the latter continued to function in a manner that set him apart from other data processing employees. Thus, Goza remained the only salaried data processing employee, occupied a separate office, and was the person to whom the employees turned and from whom they received directions regarding day-to-day operations. Although Goza was not called as a witness, the record indicates that he carried out his role with little or no consultation or direction from either Williams or Ferrari. While much of the work of the keypunch operators followed fixed patterns and required no detailed instruc- tions, it is a reasonable assumption that the keypunch operators needed someone to note and correct mistakes and to determine priorities. Williams lacked technical knowledge to function in this area and her direct supervision of employees appears to have been limited to others in the clerical unit. Ferran had broader concerns than the day-to-day functioning of the data processing unit alone. At one time Respondent had regarded the function of overseeing its data processing operation as of such significance that despite the availability of Williams and Ferrari it had employed a full-time supervisor. When Recktenwald left, Respondent apparently concluded that the use of a full-time supervisor was no longer essential. This, however, scarcely obviated the need for a "working foreman" who in conjunction with other duties would exercise "responsible direction" calling for the use of "independent judgment," and I am satisfied and find that Goza in fact filled such a role in relation to the keypunch operators. In addition to Goza's functions in the direction of keypunch operators, Respondent retied in substantial measure on Goza when hiring such employees. Ferran seeks to downgrade the importance in Goza's role in this regard, but the fact remains that it was Goza alone who interviewed both Conley and Augustin and told each she was hired. Ferrari testified that he approved both the hires after Goza reported the results of his interviews. Conceiva- bly, he might have vetoed Goza's recommendations but in both instances he followed them, and there is no showing that he undertook the sort of independent investigation that would signify that he was not prepared to attach substantial if not controlling weight to Goza's recommen- dations. The conclusion becomes inescapable that by directing Goza to make the interviews and later following Goza's recommendations, Ferrari intended to, and did, cloak Goza with authority "effectively to recommend" the hire of employees within the data processing unit, and I so find. Accordingly, I find Goza to possess authority responsi- bly to direct the work of the employees in the data processing unit, and effectively to recommend their hire, and thus to be a supervisor within the meaning of the Act. As a supervisor, Goza would fall outside the scope of the bargaining unit, and it is recommended that the challenge to his ballot be sustained? B. The Challenged Ballot of Geraldine Conley Geraldine Conley was first employed by Respondent on August 28, 1972, as a senior keypunch operator. At the time of her employment Respondent had three keypunch operators in the data processing unit. These were Alice Sun, Sharon Manzonares, and Georgia Augustin. Alice Sun had applied for maternity leave. Georgia Augustin had previously worked with Geraldine Conley in another place of employment, and advised Ray Goza that she knew Conley to be a qualified keypunch operator whose current employment was phasing out. Goza communicated with Conley by telephone and scheduled and held an interview at which he told her to report for work on August 28. It was made clear to Conley at the time of hire that she came as a temporary employee to fill in while Alice Sun was on leave, and that her employment would terminate upon Alice Sun's return.3 Early in February, Alice Sun returned from her leave. Normally Conley would have been terminated at this time. Respondent, however, had been advised that keypunch operator Sharon Manzonares needed to be absent from work for a number of weeks to undergo an operation. Goza asked Conley if she would extend her employment until Manzonares' return, and Conley agreed to do so. Conley remained on the job until April 20 when her employment was terminated with the return of Manzonares to work. This meant that Conley was still on Respondent's payroll on the March 16 election date, at which time she voted a challenged ballot. Conley testified that some time in February Ray Goza had told her that "he and [Williams] were trying to work out a job whereby [she] could work 4 hours in the office and 4 hours in the computer center and cover for vacation and Easter if not longer. They were trying to keep [her] as long as possible." Conley further testified that some 2 weeks later Goza had told her "not to rush to get another job because [she] would probably be there longer than [she] thought." As noted above, Conley's original tenure of employment was extended because of Manzonares' absence. About 1 week before Manzonares' return, Williams told Conley that Manzonares was coming back and that Conley should "make [her] plans." Conley was terminated on April 20, and Manzonares came back on the next workday. Plant Manager Barton testified that in the course of a conversation he had with Conley on the day before the election during which various company benefits were being discussed, Conley had commented, "that it doesn't really matter. I'm only temporary." Conley acknowledges that she made such a remark to Barton. She states that she changed her position later that same day when she attended a union meeting and was apprised that because of the union contract she was not a temporary employee and was entitled to vote. It was because of such advice that she appeared at the polls and cast a ballot, although her name had not been placed on the eligibility list. I am satisfied that at all times during her employment 2 There is testimony in the record concerning Goza's authority to fire or + On Conley's employment application itself there is a notation in the discipline employees. I view this testimony as somewhat inconclusive and I handwriting of Comptroller Ferrari reading "to be hired as a temporary do not rely upon it to reach the conclusion that Goza is a supervisor. replacement in DP [Alice Sun I " FEARN INTERNATIONAL, INC. 237 Geraldine Conley was a temporary employee, and that there is nothing in the record to show that in any way her status was changed before the election . It was clear beyond all doubt that Conley was hired to fill in for Alice Sun initially, and that she clearly understood this and expected to be terminated upon Alice Sun's return. Her extended tenure came about only by the happenstance of Sharon Manzonares' operation . 1 find nothing in the record to suggest that this had the effect of changing her status, or that management engaged in conduct that would reason- ably lead her to believe a change had occurred. Conley's testimony regarding her conversations with Ray Goza during February are inconclusive and suggest only that Goza viewed her as a good employee who might be valuable to keep if it could be worked out. Accepting Goza's statement at face value and making the dubious assumption that Goza possessed authority as to make commitment as to Conley's future, his statements to Conley are scarcely phrased in terms of commitment, and there is nothing else in the record to show that Goza or anyone in management ever considered further or reached a decision to retain Conley after Manzonares' return in the manner suggested as a possibility in Goza's comments to Conley. Indeed, until the eve of the election Conley herself continued to view her employment as limited . Although Conley testified that at that time she was told by the Union that she was eligible to vote because of provisions in the union contract, she does not elaborate on this, and I note nothing in the contract which would suggest or require that an employee hired for a specific purpose whose employ- ment was to be terminated upon the return of a regular employee, should be deemed as having regular employee status. Accordingly, I find Geraldine Conley to have been hired as a temporary employee, to have held such status at the time of the election, and therefore to have been ineligible to vote. Thus, I recommend that the challenge to her ballot be sustained. C. The Challenged Ballot of Irene Pacheco Irene Pacheco first went to work for Respondent as a clerical employee in May 1962. She was continuously employed thereafter until April 1969, at which time she quit her employment in anticipation of the birth of her first child. At this time. she did not request nor receive a leave of absence. She returned to her employment after an absence of 2 or 3 months, at first on a part-time basis, and subsequently as a full-time employee, and worked continu- ously until September 1972. In late spring 1972, Pacheco informed Dorothy Williams that she was again pregnant. The union contract in effect at that time contained a provision that an employee may be granted a reasonable leave of absence upon written application. According to Williams, she informed Pacheco of this provision. and understood from Pacheco that she intended to apply for such leave . Williams testified to a further conversation with Pacheco in August in which Pacheco advised her that she wanted a leave of absence, and requested aid in making the necessary request. Pacheco denies having any discussion with Williams concerning written applications for a leave of absence but she insists that in all her discussions with Williams she made it clear that in any event she did not intend to quit because of the birth of her baby. On September 8, 1972, Pacheco was granted time off to see her doctor and, upon returning from this visit , advised Williams that the doctor had told her that she should have 2 weeks of bed rest. Williams granted this request, and in the following week received a telephone call from Pacheco from the hospital reporting that her baby had been born prematurely. Some 2 weeks later in another telephone conversation Williams states she asked Pacheco if she was going to submit a written application for a leave of absence. She states that Pacheco replied that she did not wish to at this time because of the somewhat precarious condition of the baby. At some point in the middle of October, Pacheco had a further telephone conversation with Williams. According to Pacheco, she informed Williams that the baby was now better and that if there was an opening she would be able to return reasonably soon . Pacheco testified that Williams advised her that she would place her in layoff status so that she might draw unemployment compensation. Williams' version of this telephone conversation differs in substantial measure. Williams testified that Pacheco sought her aid in adjusting her employment status in some manner so that she might be eligible to receive unemployment compensa- tion. Williams states that she undertook to explain to Pacheco that unemployment compensation was not availa- ble to women who leave work for maternity reasons, that there was no way in which Pacheco could be placed in layoff status, and that once again she asked Pacheco if she intended to file a written application for a leave of absence. According to Williams, Pacheco replied that she would prefer to stay at home with the baby and draw unemploy- ment. Shortly after this, Pacheco filed a claim for unemployment compensation with a state agency . This was denied in the ruling by the state agency, a copy of which was received by Respondent on November 6. The agency ruled that Pacheco was not entitled to unemployment compensation because she had voluntarily quit her job with Respondent, had made no attempt to obtain a leave of absence, and had quit the job for domestic reasons. Following the denial of unemployment compensation, Pacheco had a further conversation with Williams in which she made an effort to convince Williams that, contrary to the finding of the state agency , she had not quit her job and did not intend to do so. Unsuccessful in convincing Williams on this point, Pacheco sought advice from Union Business Agent Torrisi. Torrisi advised Pacheco to file a written request for leave of absence . Thus, on November 10, 1972, Pacheco wrote a letter to Respondent setting forth that because of the premature birth of her child, she had been confused as to her rights, and had therefore not filed such a request, but that by this letter she was requesting leave of absence and expected to be ready to return to work by January 1973. On November 17, 1972, Williams wrote Pacheco advising her that in view of her failure to file a request for leave of absence at an earlier point, the Company viewed her as having quit her job and accordingly would terminate her employment. At this point Pacheco again sought the aid of Business Agent Tomsi. Torrisi called Williams to determine why the 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leave-of-absence request had not been accepted. Williams told him that she and Ferran deemed the request to be untimely and not in accordance with the requirements of the union contract. Torrisi concluded that a misunder- standing existed between Pacheco and Respondent, but that rather than file a grievance under the contract, he decided to seek a meeting with management to attempt to work out the problem on an informal basis. Such a meeting was arranged and held in mid-December 1972, and was attended by Ferran, Williams, Tomsi, and Pacheco. During the course of the meeting Pacheco explained that she had not submitted her leave request earlier because she believed she had an understanding with Williams which rendered this unnecessary. Williams denied the existence of any such understanding. According to Torrisi, he concluded that for a variety of reasons Pacheco had been confused as to what was required best to protect her rights and had thus failed to file a more timely leave request. At the same time Torrisi also concluded that management was taking an unnecessarily rigid position in rejecting her late leave request . Since Torrisi viewed both parties as in some measure at fault, he suggested, and he believed he had obtained, a compromise whereby Respon- dent was to put Pacheco back to work on a full- or part- time basis at such time as a vacancy occurred for which she was qualified. It developed at the hearing, however, that Respondent and the Union differ substantially as to the nature of their purported agreement. Torrisi testified, in effect, that he viewed the understanding as giving Pacheco what amounted to a qualified leave of absence in which she waived the absolute right to return that an ordinary leave of absence would accord her, but retained employee status and the right to recall at such point that a vacancy occurred. Respondent, on the other hand, claims the agreement to mean only that Pacheco would be rehired as a new employee if and when a vacancy occurred. It is conceded that up to the time of the election, and even at the time of the hearing, no vacancy for which Pacheco would be eligible had come into being. The Union's view would accord Pacheco the status of an employee on leave of absence pending the vacancy and make her eligible to vote, while Respondent's position would leave Pacheco with no employment status until such time as the vacancy occurred and she had actually been rehired, thus rendering her ineligible to vote. Pacheco was a long-term and apparently competent and satisfactory employee. I am satisfied that Respondent viewed her continued employment favorably, and that Williams advised her fully and correctly regarding the contract requirements respecting a leave of absence. Her delay in applying appears to have been largely her own fault and it is understandable that management, somewhat provoked by her failure to follow its advice, might view her action in applying for unemployment compensation, together with the ruling of the state agency, as an expression of an intention to quit. On the other hand, we should not overlook the fact that the issue arose at a time when Pacheco had just been through the traumatic experience of a premature birth, and was still suffering from anxiety over the survival of the infant. Undoubtedly, she was experiencing a degree of confusion as to her future, both at work and at home, and was not capable of considering available alternatives with appropriate objec- tivity. I credit her testimony to the effect that whatever else may have influenced her, and to whatever extent she may have been confused, she at no time intended to quit altogether, and she sought unsuccessfully to make this clear to Williams. Regardless of this, however, the conclusion Respondent reached, as set forth in its November 17 letter, is not an unreasonable one, and were it not for subsequent events it might be deemed dispositive of the issue regarding Pacheco's status. I am of the opinion, however, that the advent of the Union into the picture at this point gave the controversy a new perspective . At the time the issue arose there was no election pending, and insofar as this record shows a mutually satisfactory bargaining relationship existed be- tween Respondent and the Union. I have every reason to believe that Torrisi entered the controversy with the aim to bring about an adjustment fair to both sides. He found in Pacheco a long-term employee who in a period of stress and strain, perhaps influenced by the hope that she could "have her cake and eat it too" by getting both unemploy- ment compensation and leave status , had not used contract procedures in a timely fashion. At the same time Respondent's apparently unyielding stand on the time issue could have the effect of denying a long-term, satisfactory employee, employee status. We must assume that had Pacheco made her leave request in a timely fashion, it would have been granted. If so, she would have preserved continuing employee status together with the right to return to her job in accordance with the terms of the leave grant. If she were deemed to have quit, however, she would retain neither employee status nor any assurance of reemployment. It is reasonable to assume, however, that as a former satisfactory employee Respondent would have given her a job when a vacancy occurred and she applied . Thus, its commitment to do so would offer her little that would not likely be forthcoming anyway. Reemployment as a new employee would obvi- ously be far less advantageous to Pacheco than retention of continuing employee status. It is, therefore, reasonable that the Union, even though willing to forego her right to return until a vacancy occurred, should seek retention of continuing employee status. Respondent's claim that the agreement was limited to a commitment to rehire Pacheco as a new employee seems of doubtful validity. Not only would this add little to Pacheco's then existing status, but it is almost certain that the Union would have deemed it insufficient and have taken the issue up formally as a grievance. Neither side was as explicit as might be desirable as to the precise terms of the understanding, and unfortunately the agreement was not memorialized in writing. The advantages of retaining continuing employee status for a long-term employee, however, are so obvious and the existing equities in favor of according Pacheco such status so clear, that I find it unlikely that at the time the issue came up either party believed that the agreed compromise would foreclose Pacheco's right to remain an employee. I view Respondent's position taken later as more likely to be an afterthought arising when it became clear that it would render Pacheco an ineligible voter. Accord- FEARN INTERNATIONAL, INC. ingly, I find that as a result of the December meeting the parties reached an agreement that, while Pacheco was not to be granted a full leave of absence, she was to be given what amounted to a qualified leave status which entitled her to maintain continuing employee status until such time as a vacancy for which she was qualified occurred. Respondent makes the further claim that even if Pacheco be accorded employee status, she had no reasonable expectation of recall in the near future, and therefore should be deemed ineligible to vote. I disagree. It is not appropriate in all instances for an employee not working to retain his employee status indefinitely. In situations where the general business prospects render it unlikely that the work that the employee had been doing is to be resumed in the foreseeable future, such status might be lost. Here, however, the work in the clerical unit was going on as before. A vacancy might have come about at any time. The election took place less than 3 months after Pacheco indicated her availability to return. Surely for this long at least she should be considered as having a reasonable expectation of employment, and I so find. Since Pacheco had continuing employee status as of the eligibility date, she should be permitted to vote with others in the clerical unit. Accordingly, I recommend that the challenge to Pacheco's ballot be overruled and that her ballot be counted. IV. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that in January 1973 Respondent, acting through Ray Goza, engaged in conduct violative of Section 8(a)(1) "by mterrogating an employee concerning the union sympathies of its employees." The evidence shows that in late January a petition was being circulated among Respondent's clencal employees seeking their signatures to support a petition for decertifi- cation. On January 25, Goza asked Georgia Augustin to come into his office. Goza commented on the likelihood of an election in the near future, and wrote on a piece of paper separate columns headed "yes" and "no." He questioned Augustin as to her voting intentions, and when she replied that she expected to vote against the Union, he wrote her name in the "no" column. Following this Goza queried Augustin as to her knowledge of the union sympathies of each of the employees in the unit. When Augustin expressed her views as to each individual, Goza would write her name in the "yes" or "no" column as the case might be. This is the sole evidence of unlawful interrogation alleged or proved. It was not shown that subsequent to the questioning Augustin discussed the matter with any other employee in the unit, or that the incident came to the attention of the other employees in any other manner. Inasmuch as Goza did not testify, Augustin's testimony with respect to the interrogation stands undemed. Respondent claims the interrogation to have been 4 Walgreen Co., d/b/a Globe Shopping City, 203 NLRB No. 36; Howell Refining Company, 163 NLRB 18: Metropolitan Life Insurance Company, 166 NLRB 533. 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations cf the National Labor Relations Board, the findings, 239 isolated in nature and where, as here, it is not found coupled with other unlawful acts, it is asserted to be insufficient to support a Board order. I agree. No other unlawful conduct on Respondent's part with respect to any employee in the clencal unit has either been alleged or established. Although I have found Goza to be a supervisor, his place in Respondent's supervisory hierarchy is at the lowest level. Goza himself was a union member who apparently spoke freely with the other data processing employees. The interrogation took place before the decertification petition was filed and a month and a half before the election. No similar or related incident occurred thereafter. While Goza did not specifically assure Augustin that her answers would not result in reprisals, neither did he threaten or suggest to her that such might occur. The employees were all aware that management had not only bargained with the Union for a clerical unit in the past, but that the same Union represented and had contracts for three other units in the same plant. The Union filed the charge before the election was held, but did not deem anything occurring in relation to the conduct to the election itself to be of sufficient significance to support objections, and no claim is made that this sole incident of interrogation is grounds for setting aside the election. While all interrogation, and especially that occurring in a preelection period, must be viewed with suspicion as having a possible coercive effect upon the freedom of choice of the employees, it is appropriate to consider the scope of such interrogation and the context and circum- stances in which it takes place before determining if, in any given situation, it will suffice to support a remedial order. I regard it as significant that the one employee questioned as to the union sympathies of her fellow employees is not shown to have spoken to others in the unit regarding such interrogation. Thus, even if the interrogation be deemed coercive in nature, the effect here appears minimal. Considering this and the surrounding circumstances set forth above, I view the isolated nature of this incident as of such scant significance that I am of the opinion that no sufficient statutory purpose will be served by the issuance of a remedial order. Accordingly, I shall recommend that the complaint be dismissed in its entirety.4 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS It is hereby recommended that the complaint herein be, and it hereby is, dismissed in its entirety. IT IS FURTHER RECOMMENDED to the Board that in Case 20-RD-843 the challenges to the ballots of Ray Goza and Geraldine Conley be sustained, and that the challenge to the ballot of Irene Pacheco be overruled, and her ballot be counted with appropriate procedures thereafter followed. 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