International Ladies Garment Workers' Union, AFL-CIO

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Ladies' Garment Workers' Union, AFL- CIO and Georgetown Dress Corporation Georgetown Dress Corporation and International La- dies' Garment Workers' Union, AFL-CIO, Peti- tioner. Cases 11-CB-383 and 11-RC-3343 November 6, 1974 ballots have been cast for International Ladies' Gar- ment Workers' Union, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclu- sive representative of all the employees in the appro- priate unit for the purposes of collective bargaining with respect to rates of pay, wages , hours of employ- ment, or other conditions of employment. DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE By MEMBERS FANNING, JENKINS, AND PENELLO On May 31, 1974, Administrative Law Judge Hen- ry L. Jalette issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel, the Em- ployer-Charging Party, and the Petitioner-Respon- dent filed exceptions and supporting briefs to the Administrative Law Judge's Decision. In addition, the Employer-Charging Party also filed motions to reopen the record for the receipt of certain alleged rejected evidence I and both the Employer-Charging Party and Petitioner-Respondent filed answering briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and that at- tached Decision in light of the exceptions and briefs, and motions to reopen the record and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recom- mended Order. As the objections to the election held on February 15, 1973, have been overruled and the Petitioner-Re- spondent has received a majority of the valid ballots cast in that election , we shall certify the said labor organization as the exclusive bargaining representa- tive of the employees in the appropriate unit. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed, and that Employer-Charging Party's Objec- tions 2, 3, and 4 be overruled.' CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid 1 The Employer-Charging Party made motions to reopen the record for receipt of allegedly improperly rejected admissible evidence concerning threats of economic reprisal encompassed in Objection 4, and for the receipt of subjective testimony regarding the employees ' reactions to the Petitioner- Respondent's acts of misconduct As for the Administrative Law Judge's refusal to admit evidence concern- ing the conduct alleged in Objection 4, the record shows that during the course of the hearing the Administrative Law Judge did improperly at one point preclude the counsel for the Employer -Charging Party from pre- senting such relevant evidence However , when the scope of the objection was pointed out to him , he quickly changed his ruling and permitted the counsel time to marshal evidence and to present witnesses In our opinion, the Employer-Charging Party had adequate opportunity to present its case, and, indeed, to fully present relevant and available evidence Accordingly, we find that the Administrative Law Judge 's error was not prejudicial. As for the exclusion by the Administrative Law Judge of testimony of subjective evidence regarding the effect on the employees ' ability to partici- pate in a free election , it is well established by long Board precedent that the test of whether the employees had been improperly influenced is not de- termined from the testimony of the employees , but whether, upon the basis of all the objective circumstances, it reasonably appears that the freedom of choice of the employees could have been interfered with See, e g , G H Hess, Incorporated, 82 NLRB 463, In 3 ( 1949), James Lees and Sons Compa- ny, 130 NLRB 290, 291 , In 1 (1961), Superior Wood Products, Inc, 145 NLRB 782 (1964), Marie Philips, Inc, 178 NLRB 340 (1969), enfd 443 F 2d 667 (C A D C, 1960), cert denied 403 U S 905 ( 1971) See also N L R B v Gissel Packing Co, Inc , 395 U S 575 , 608 (1969) While we have recognized that subjective evidence may be received as part of an explanation of certain overt behavior , and be admitted into evidence at the discretion of the Hear- ing Officer, such subjective evidence is entitled to little weight where the Board , as here, can evaluate the reasonable effect of the objective conduct to determine its effect upon the employees See Friendly Ice Cream Corpora- lion, 211 NLRB 1032 (1974) We find that the subjective testimony in ques- tion was properly excluded by the Administrative Law Judge , would have cluttered the record with testimony entitled to little weight, and would have unnecessarily prolonged the hearing Accordingly , both of the above motions are denied 2 The Employer-Charging Party also submitted a letter entitled " Motion to Strike" (certain portions of the Petitioner -Respondent's answering brief, regarding the motions to reopen ), and the Petitioner-Respondent filed a letter in response The purported motion to strike was in fact in the nature of a reply to an answering brief , which is not permitted by the Board's Rules and Regulations without the special permission of the Board , and therefore should have been, and hereby is, rejected The letters do not in any case add any new issues to those raised by the briefs of the parties and the record, and thus would not change our conclusion that the Employer -Charging Party's motions to reopen should be denied 3 The Board had reserved decision upon the Regional Director's recom- mendation the remaining Objections I and 5 also be overruled We have examined the Regional Director's Second Report on Objections issued on May 17, 1973, the Employer-Charging Party's exceptions, and the record as a whole, and agree that for the reasons stated by the Regional Director these objections should be overruled DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This is a consolidated proceeding involving allegations that during a 214 NLRB No. 108 INTERNATIONAL LADIES' GARMENT WORKERS ' UNION, AFL-CIO preelection campaign in Case I1-RC-3343 the above- named Union made various threats to employees in viola- tion of Section 8(b)(1)(A) of the Act and which created an atmosphere of fear which precluded employees from exer- cising a free choice in the selection of a bargaining repre- sentative in the election in that case. The unfair labor prac- tice proceeding was initiated by a charge filed by the above-named Employer on February 12, 1973,1 pursuant to which a complaint was issued on December 27. On March 12, 13, 14 and 15, 1974, hearing was held in George- town, South Carolina Upon the entire record,2 including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel, Respondent, and the Employer, I make the following: 707 for any of their services which consisted of soliciting em- ployees to sign authorization cards, to attend union meet- ings, or to support and vote for the Union. This activity occurred at the plant, but committee members also visited the homes of fellow employees. (None of the alleged un- lawful activity occurred on home visits.) Committee mem- bers received no expense payments from the Union for any of their activities, but did meet with the union representa- tives on occasions when meals were served and paid for by the union representative. Certain employees who were members of the committee were known to be such among employees at the plant, and, on at least two occasions, notices were handed out to em- ployees inviting them to union meetings on which ap- peared the following: FINDINGS OF FACT 1. BACKGROUND OF THE CASE The Employer is engaged in the manufacture of dresses at a plant in Georgetown, South Carolina 3 On June 24, 1971, the Union filed a petition for an election in Case No. 11-RC-3343. An election was held on August 24, 1971, in which a majority of the valid votes cast was against repre- sentation by the Union. Pursuant to timely objections by the Union, that election was set aside by the Board on January 8, 1973.4 On February 15, a second election was held in which 184 votes were cast for the Union and 105 against. Thereafter, the Employer filed timely objections which were overruled by the Regional Director in a Second Report on Objections dated May 17 The Employer filed timely exceptions to the Regional Director's Report and on October 4, the Board directed a hearing on the Employer's Objections 2, 3, and 4. II. THE ALLEGED UNFAIR LABOR PRACTICES In conducting its organizational campaign, the Union relied not only on agents who are in its employ, but also on employees who were formed into an In-plant Organizing Committee. This committee had no formal structure, and membership was open to any employee willing to be known as a member of the committee and to work to enlist support for the Union. Committee members were not paid 1 Unless otherwise indicated, all dates are 1973 2 The Employer asserts in its brief that numerous affidavits were attached to the Regional Director's Second Report on Objections in Case iI- RC-3343 which the General Counsel did not include in the formal file in this consolidated proceeding and he moves that the Second Report be prop- erly submitted in whole into evidence The motion is, in my judgment, unnecessary As part of the Second Report on Objections, the affidavits are part of the record by virtue of Sec 102 69(g) of the Board's Rules and Regulations, Series 8, as amended, whether or not physically attached to the Second Report in the formal file in this proceeding However, while the affidavits may be part of the formal file when they are attached to a report on objections, they are not in evidence, nor part of the record, for the purpose of resolving the objections to the election Accordingly, the motion is denied 3 Jurisdiction is not in issue The complaint alleges, the answer admits, and I find, that the Employer meets the Board's direct outflow standard for the assertion of jurisdiction 4 Georgetown Dress Corporation, 201 NLRB 102 Important to attend In-Plant Organizing Committee I.L.G.W.U. The allegations of the complaint that the Union re- strained and coerced employees in the exercise of Section 7 nghts in violation of Section 8(b)(1)(A) of the Act are based on the activities of certain employee committee members. For example , employee Louis Herman is alleged to have threatened other employees by exhibiting a knife; employees Lou Lambert and Gertrude Hudson are alleged to have threatened other employees with loss of their jobs; Gertrude Hudson is also alleged to have warned other em- ployees she was keeping notes on what they said about the Union which she was going to turn over to the Union. These allegations will be discussed in detail below in con- nection with the Employer's Objections to the Election, where the question of agency is not dispositive . Where the complaint allegations are concerned , however, a threshold question is the Union's responsibility for the conduct of the employee organizing committee members. I conclude that the Union was not responsible for the conduct attributed to the committee members. In Owens-Corning Fiberglas Corp., 179 NLRB 219 ( 1969), employees who were members of an In-Plant Committee for the Teamsters made various threats of physical harm to employees opposed to the Teamsters .5 These threats were not the basis of an unfair labor practice charge, as here, but formed the basis of employer objections to the election, as here. In addressing itself to this unlawful conduct the Board stated, "The mere fact that employees prominent in the Union's organizing campaign may have engaged in un- lawful conduct, without more, is not sufficient to establish agency." 6 This simple, clear declaration should be dispositive of the issue were it not for the conclusions reached by the Board in other cases. Thus, in International Woodworkers of America, AFL-CIO (Central Veneer, Incorporated), 131 NLRB 189 (1961); Hampton Merchants Association, et al., 5 Contrary to the Employer's assertion in brief, Owens-Corning involved threats by members of an In-Plant Committee for the Teamsters against members of an In-Plant Committee opposed to Teamsters 6 The Board overruled the employer's objections and certified the union Thereafter, the employer refused to bargain to test the validity of the certifi- cation and the Board found the employer guilty of a refusal to bargain in 181 NLRB 575 The Court of Appeals for the Fourth Circuit enforced the Board's order , 435 F 2d 960 (1970) 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 151 NLRB 1307 (1965); and Local 340 International Broth- erhood of Operative Potters, AFL-CIO (Macomb Pottery Company), 175 NLRB 756 ( 1969), unions were held liable for the misconduct of individuals who were prominent in soliciting on their behalf . Despite such holdings, I am not persuaded that those cases support a finding of agency in this case, because it appears that in each of those cases the Board relied on special circumstances in imputing respon- sibility to the unions . I base this observation on the deci- sion in Bufkor-Pelzner Division, Inc., 197 NLRB 950 (1972), wherein a majority of the Board spelled out the special circumstances as follows: in International Woodworkers of America, AFL- CIO Central Veneer, Incorporated), 131 NLRB 189, the individual found to be an agent of the union was not employed by the employer but was an outsider to the employees ; in Hampton Merchants Association, et al., 151 NLRB 1307, the union selected an individual as its agent to solicit membership and, aware of his activ- ities, did not repudiate or disavow them ; and in Local 340, International Brotherhood of Operative Potters, AFL-CIO (Macomb Pottery Company), 175 NLRB 756, the individual found to be an agent was the prime contact between union officials and employees in a town where the union had no base of operations and which its officials seldom visited.. . None of these special circumstances is present here. All the committee members were employees of the company and were soliciting other employees because of their own interest in obtaining union representation They were more the principals seeking an agent, than agents of the Union. They were volunteers working without pay and in their own interest. Moreover, all the conduct complained of oc- curred in the plant in familiar employee surroundings, and there is no evidence that the Union was aware of the con- duct for which General Counsel would not hold it liable. In this connection, it is noteworthy that in Local 3, Int'l Brotherhood of Electrical Workers (New Power Wire and Electric Corp., et al.), where the Trial Examiner held the union liable for threats by members of a strike committee because they had been authorized to solicit employees to join the union, the Board was not content to rest a finding of liability on that ground but relied on the additional grounds that the individuals had been delegated "signifi- cant elements of control" respecting functions of the strike committee, and the union's acknowledged agent "must have known of the coercive conduct" and did not disavow it.7 In this case, the committee members had one function, namely, to solicit membership or support of the Union, were vested with no control over anything (as noted earlier, the committee had no structure). There is no showing the Union was aware of any alleged misconduct, and no agent There were similar elements in International Woodworkers of America, Local Union 3-3 (Western Wirebound Box Co), 144 NLRB 912 (1963), cited by the Charging Party In Vickers Incorporated, Inc, 152 NLRB 793 (1965), cited by General Counsel and the Charging Party, the individuals whose conduct was in issue were shop committeemen and responsible representatives of an incumbent union of the Union engaged in any misconduct. Under all the foregoing circumstances, I conclude that the employees who were members of the In-Plant Organiz- ing Committee were not agents of Respondent and that Respondent is not liable for their alleged misconduct. Ill. THE EMPLOYER'S OBJECTIONS The Employer's Objections on which hearing was direct- ed are as follows:8 2. An atmosphere of fear and coercion was created and existed at the time of the election, which fear and coercion affected the results of the election. 3. Since on or about February 1, 1973 and at all times thereafter, the Petitioner interfered with employ- ee free choice by threatening bodily harm and damage to the property of the employees who opposed its elec- tion. 4. Since on or about February 1, 1973 and at all times thereafter, the Petitioner interfered with employ- ee free choice by threatening loss of employment to those employees who opposed its election. At the outset, from what has been found earlier on the question of the Union's responsibility for the actions of the members of the In-Plant Organizing Committee, it is evi- dent that Objections 3 and 4 are lacking in merit insofar as they attribute misconduct to the Petitioner (i.e., the Union). Certain employees who were members of the In- Plant Organizing Committee may have engaged in miscon- duct, but these acts are not attributable to the Petitioner. On this ground, I will recommend that Objections 3 and 4 be overruled. This still leaves Objection 2 for consider- ation, however, and the misconduct alleged in Objections 3 and 4 is relevant to a determination of the issues posed by Objection 2 and, for this reason, all evidence of misconduct adduced at the hearing has been considered and is herein- after set forth. A. The Facts During the preelection period, the Employer conducted employee meetings on company time to present its views about the selection of the Union as bargaining representa- tive Such meetings were held on January 30 and February 6, 9, 13, and 14 in the plant's shipping area. During this period of time, the plant manager was Wil- liam Hamby and he gave the speech at the January 30 and February 6 meetings. At the February 6 meeting, Hamby had read from the Union's constitution and when he fin- ished his talk he asked if there were any questions. Accord- ing to Edward Marino, who was assistant plant manager at the time, employee Burnett Johnson asked Hamby to read the benefits. Marino was asked by Hamby to reply to the question and he explained to Johnson that the book, which he was then holding, was the Union's constitution and it contained neither advantages nor benefits. Johnson insist- s In directing hearing, the Board reserved ruling on the Regional Director's recommendations with regard to Employer's Objections I and 5 INTERNATIONAL LADIES' GARMENT WORKERS ' UNION, AFL-CIO ed it did and Marino offered to show him the book at the end of the meeting. Johnson insisted on seeing the book then, and although Marino tried to explain it was not feasi- ble to do so, he finally tossed the book to Johnson who was out of his reach on a stack of cartons. Johnson examined the book, there were no more ques- tions, and the meeting ended. After the meeting, Johnson explained to Manno that the reason he wanted to see the book was because he knew "the tricks that can be played." The speech on February 9 was given by Marino. In his testimony, Marino did not describe how he started the meeting, but, according to employee Wilomena Addison, Marino began by stating that at the earlier meeting an em- ployee had implied he would switch the book he had been using if the employees were not permitted to examine it then and there. At this point, Johnson, believing the refer- ence was to his remarks at the earlier meeting, interrupted to explain himself. Marino told him not to interrupt, that if he had anything to say he was to wait until Marino had finished speaking. Johnson insisted on being heard and Marino repeated himself to no avail. On the third or fourth interruption, Marino, almost shoutin told Johnson "Don't interrupt me" and "Be quiet." When Johnson continued to interrupt, Marino said, "Will somebody get this man out of here." When he said this, head mainte- nance man Lionel Williams started to walk to Johnson and Marino told Johnson "one more word out of you and I will have you removed from the premises." Johnson said noth- ing more and Williams never touched him. However, as this incident developed, employees backed away from the platform from which Marino had been speaking and where Johnson and Williams were standing; there was a murmur of sound, and, according to employees Mary Graham and Nita Avant, they heard someone murmur "if that man touches Johnson, there'll be bloodshed." After Marino finished speaking, Johnson did not ask any questions, nor make any statement. Employee Jim Wash- ington did and his remarks were that the employees did not need a union and he accused them of "acting like a bunch of damn fools." According to Joe Williams, a disputed su- pervisor, Washington said the employees were damn fools and jackasses if they voted for the Union. According to employee McCrae, Washington asked why everybody was behaving like jackasses. According to Joe Williams, after the meeting, employee Louis Herman, a member of the In-Plant Organizing Com- mittee, remarked that "if Lionel Williams had touched Burnett Johnson that they were going to throw him out and Bob Marino's funeral [home would have him]." 10 Accord- ing to Foreman Barnes, Herman's remark was that if Wil- liams put a hand on Johnson "they would have to pull him out." t That afternoon, it was reported to Marino that a mes- 9 Addison and Johnson testified Manno told Johnson to "shut up" or "get the hell out of here " Marino denied expressing himself in those terms and I credit him 10 I have substituted in the brackets above what my notes reflect concern- ing Williams' testimony The transcript erroneously has "would probably happen" for the bracketed material Herman denied making any remarks about Lionel Williams Herman struck me as an unreliable witness and I do not credit his denial 709 sage had been scribbled on one of the stalls in the ladies' restroom. Marino checked this report and found the fol- lowing message: "Joanne Jacobs looks like John Assey Roberts. 1I Joanne Jacobs, Jimmy Washington, and Jeannie Owens if the Union is not voted in they will be the first ones killed." Sometime during this period, according to Marino, Hel- en Bourne came into his office to show him a piece of tissue paper which had been attached to her timecard on which had been scribbled: U no. 4 Bich. IF your FALS. Bos. Man. On February 13, Marino scheduled another meeting and Joe Williams was instructed to notify the employees of the meeting. According to Williams and Foreman Barnes, whose testimony I credit, when Williams notified Lou Her- man, a cutter and a member of the In-Plant Organizing Committee, Herman remarked that they'd better call out the sheriff because they were going to turn the place out. As he said this, Herman pulled a knife from his pocket, opened it, and gesticulated with it, although not pointing it at either Williams or Barnes." Shortly thereafter, Marino gave his speech to the assem- bled employees. A question about the book came up again and the book was handed to Johnson, but Marino did not attribute any remarks to Johnson and testified there were no interruptions. According to Marino, he noticed that the employees did not come as close to the podium as they had at other meetings and he had to ask them to come close. When Marino finished he asked if there were any ques- tions. There were none and the meeting ended. Marino testified that employees then scurried back to work, where- as at prior meetings employees ambled back to work talk- ing to each other. Because attendance was poor at the February 13 speech, Marino repeated it at a meeting of employees on February 14.14 Marino testified employee behavior then was the same as the day earlier. In addition to the foregoing, several other incidents were attested to which the Employer asserts interfered with the employees' exercise of a free choice in the election. According to Joe Williams, whom I credit, on February 7, Herman told employee James Gamble that if people didn't support the Union they might find sugar in their gas tanks. According to Foreman Barnes and Assistant Fore- man David Cusack (not a supervisor) employee Perry Walker had also made the same statement to Gamble. According to employees Verlin McCrae and Lonnie Peavey, on or about February 8, while riding home togeth- er, employee Gertrude Hudson, a member of the In-Plant Organizing Committee, told them that she was taking down everything they said and she was going to turn it over to the Union. Hudson denied making such a state- ment, but I do not credit her. According to Effie Mae Bass, about February 7, employ- ee Lou Lambert, a member of the In-Plant Organizing Committee, told her if she didn't sign a union card, or vote 12 John Assey is a local doctor with a mongoloid son named Robert 13 1 do not credit Herman's version of the knife incident 14 Marino admitted that almost all the employees who were present in the plant on February 13 had attended his speech The record suggests that attendance was poor at the plant because of a blizzard a day or two earlier 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Union and the Union won, she would lose her job. Lambert admitted talking to Bass about the Union and testified in some detail about those conversations. She de- nied making the threat attributed to her by Bass and I credit her. Bass' testimony about the threat was very sketchy and I am not persuaded she told a complete story and that she did not distort Lambert's remarks. According to Gladys Long, employees Mary Parker and Claudia Neely told her on separate occasions that if she didn'tjoin the Union she would lose her seniority and they would throw her out when the Union came in. Parker and Neely denied making such threats and I credit them. Long did not impress me as a reliable witness. To the contrary, it appeared to me she overstated and distorted the facts. According to Martha Washington, wife of Jim Washing- ton who had spoken against the Union at the February 9 meeting, after that meeting she received about five anony- mous phone calls threatening the killing of her husband. I credit her. According to David Cusack, about a week before the election, employee Perry Walker said to him and James Gamble that if the Union were voted in and a strike was called anyone who tried to cross the picket line would get hurt. Employee Leslie Roberts overheard a similar remark as he passed by a group of employees about 1 week before the election. I credit Cusack and Roberts. According to Hamilton Collins, about a week before the election, some new employees, unknown to him, asked him to sign a card. When he refused and declared his neutrality, they told him he was either for or against them and if they succeeded in getting the Union in, they would strike and they would beat him if he tried to cross the picket line. Collins' testimony was undenied-it could not be other- wise since he could not identify who made the threats he described-and I credit him, although I have reservations about the accuracy of his testimony, not for any lack of veracity on his part, but because he appeared to me to have a limited capacity for understanding questions put to him and a similar limitation for understanding statements made to him. According to Rosalie Simmons, a similar remark was made to her by employees Lou Lambert and Janie Ford, except there was no threat of physical violence, only that she would not be able to work. Ford did not testify. Lam- bert denied making such a statement to Simmons and I credit her. However, Simmons' testimony indicates the statement was made in a group conversation and it was not addressed specifically to her. Lambert did not deny mak- ing the statement, but only denied that she made it to Sim- mons. I find the statement was made as attested to by Sim- mons. B. Analysis and Conclusions Before addressing myself to the signficance of the pree- lection conduct described above, I believe it is important to set forth certain guiding principles, beginning "by iterating what now must be known by everyone in the labor-man- agement arena, that the burden is on the party seeking to overthrow an election to show that what was done affected the fairness of the representative election." Bush Hog, Inc. v. N.L.R.B, 420 F.2d 1266, 1268 (C.A 5, 1969). "This is a heavy burden; it is not met by proof of mere misrepresen- tations or physical threats. Rather, specific evidence is re- quired, showing not only that the unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." N.L.R.B. v. Golden Age Bever- age Company, 415 F.2d 26, 30 (C.A. 5, 1969). Moreover, while the test for finding that there existed "an environ- ment of tension or coercion such as to preclude employees from exercising a free choice" 15 is not one of agency, the Board has long held that less weight is accorded to miscon- duct which is not attributable to the parties. Orleans Manu- facturing Company, 120 NLRB 630 (1958). It is with the foregoing principles in mind that I have assessed the evidence of threats in this case. The central event in the preelection period was the February 9 meeting, and it seems appropriate to examine that event first. I am not certain I fully understand the Employer's position with respect to that event. As the record indicates there was a moment of tension at the meeting and a potential for vio- lence when Marino indicated that he wanted Johnson re- moved and Lionel Williams moved towards him. Employ- ees close to the men in question backed away for fear of becoming involved or being hurt in a melee and murmurs were heard of possible bloodshed. At first blush, this is a serious incident. But, upon analysis, nothing happened. There was no violence. No one was threatened.16 It appears to be the Employer's position that Johnson's interruptions of Marino prevented the Employer from exercising his right to express his views about the election issues and pre- vented employees from hearing his views as they had the right to do under Section 7 of the Act. The fact of the matter, however, is that Johnson quit interrupting, no em- ployee left the meeting, and Marino gave his speech. In addition, whatever tension may have existed earlier subsid- ed and some employees spoke after Marino finished, in- cluding James Washington, who not only expressed an- tiunion views, but did so in derisive terms calling union supporters fools and jackasses. Under the circumstances, the events at the February 9 meeting afford no basis for setting aside the election. The Employer appears to contend, however, that those events created an atmosphere of fear that lasted beyond the meeting itself. Thus, employees expressed a reluctance to attend any further meetings. I was not impressed that such expressions reflected fear as much as anger on the part of employees opposed to the Union who resented the impertinence of Johnson in interrupting Marino. After all, the near confrontation at the February 9 meeting was be- tween Johnson and Lionel Williams. None of the other employees was involved except as a spectator. None was threatened. According to the Employer, the effects of the events of the February 9 meeting were reflected in the reduced atten- 15 N L R B v Zelrtch Company, 344 F 2d 1011, 1015 (C A 5, 1965) 16 Nor do I construe as a threat Herman's remark after the meeting about throwing out Lionel Williams if he had touched Johnson The remark mere- ly expressed how some employees felt at the time of the meeting about Williams' move to comply with Marino's request that Johnson be removed INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO dance at the February 13 meeting and the reticence of the employees at that meeting and the February 14 meeting. I am not persuaded that the facts support such a position. All employees present at work were present at the Febru- ary 13 meeting, and if attendance was reduced it was ap- parently due to bad weather conditions. The fact that there were no questions is not particularly significant since this was the fourth meeting. I attach no weight to the descrip- tion by Marino of the behavior of the employees, their holding back from the podium and scurrying back to work after the meeting. Such a description depends heavily on personal feelings and opinions. The employees' behavior mayjust as easily have been attributable to lack of interest in yet another speech by Marino as to fear. The Employer would also link with the February 9 meet- ing, and predicate a finding of the existence of an atmo- sphere of fear, testimony that after the February 9 meeting the girls were seen carrying their shears. To associate the carrying of shears with either the events at the February 9 meeting or any subsequent events would be sheer conjec- ture. Again, I must note he absence of any violence during the preelection period and the absence of any threats ex- cept such as the anonymous threats to the three individuals named on the note on the bathroom wall to Helen Bourne on her timecard, and the anonymous telephone calls to Martha Washington. Those matters would not call for em- ployees to arm themselves. Moreover, the testimony on this score is so general and vague that it is not deserving of any weight. Who were these girls carrying shears? Were they all prounion? Were they going to use them aggressively or de- fensively? These unanswered questions demonstrate the unreliability of the evidence with regard to this matter. One remark about possible violence which has left me somewhat puzzled is that attributed to employee Elizabeth Glisson by Supervisor Joann Jacobs after the February 9 employee meeting. According to Jacobs, Glisson remarked in the restroom that it would serve Hamby right if he got his throat cut, that he and Marino were going to keep on with their meetings until someone did so Referring to the Johnson incident at the meeting, Glisson said "if he [John- son] had been white, he [Marino] wouldn't have done so." Remarks such as those suggest a strong prounion bias on the part of Glisson, yet she admitted she was against the Union and was called as a witness by the General Counsel to testify that she observed some of the girls carrying their shears after the meeting. She testified she told Assistant Plant Manager Lemacks she did not want to attend any more meetings because she was frightened. I have great difficulty in reconciling these two items of testimony which have Glisson advocating violence at one minute and one minute later (rather the same day after the meeting) ex- pressing fright. It appears to me there has been a distortion of the facts somewhere along the way. Glisson was not examined about the remarks attributed to her by Jacobs. The only witness to describe Glisson's remarks in the restroom was Supervisor Jacobs, although several other employees were present, including Sheri Van Vlake who testified, but was not examined about this incident. Under the circum- stances, neither Jacobs' testimony about Glisson's remarks nor Glisson's expressions of fear are entitled to any weight. 711 The note found on the wall of one of the stalls in the ladies' restroom on February 9 which threatened two su- pervisors and one employee, and the anonymous telephone calls to Martha Washington appear to have been related, at least in part, to the February 9 meeting. The threat at- tached to Helen Bourne's timecard was not related to the February 9 meeting, but apparently related to antiunion activity on Bourne's part and is of a similar nature to the note. The threats expressed in these three instances were very serious and several employees testified they were frightened (Nita Avant, Sally Avant and Susan Randolph). Other individuals testified employees told them they were frightened (e.g., Van Vlake, a challenged voter, testified employee Mozella Herman told her she was scared). Whether or not in these instances the fears expressed were for their own personal safety is not clear. In some cases the fears were for the safety of the two supervisors named in the note. Thus, employee McCrae testified she was afraid Jeannie Owens and Joann Jacobs would get hurt and that two other employees expressed similar fears. Clara Tomp- kins testified if it was her (meaning Owens and Jacobs) she would be frightened. Despite such testimony, I am not persuaded that there existed an atmosphere of fear which would preclude em- ployees from exercising a free choice in the election. My conclusion is based in part on the facts that there was in fact no violence and the threats were anonymous, and not face to face as in Steak House Meat Company, Inc., 206 NLRB 28 (1973). In addition, when one considers the en- tire record, despite the fact the campaign was hard fought, there were in fact only 3 threats of this type in a unit of 335 employees. Much testimony was adduced about the dissemination of the message in the bathroom and the opportunity of employees in large numbers to see the note. One reason that the note could be seen by so many was that at least one employee, Sally Avant (one of the employees who tes- tified she was afraid something might happen), was told of the note by her supervisor, Owens, and the note was per- mitted to stay on the wall for a week although, according to employee Tompkins, only two or three employees had seen it before supervisors were notified of it." The Union contends that the Employer has an operational responsibil- ity for the incidents which occurred in the plant and points, in particular, to the Employer's failure to remove the note.18 I am not persuaded that the Employer's conduct in this particular rises to a level of operational responsibility, however, I am persuaded that the very fact the note re- mained on the wall as long as it did and that the attention of employees was being drawn to it would tend to mini- mize the impact on the employees. The Employer's failure to erase the note would suggest to the employees that it was not to be regarded seriously except, perhaps, as a reason not to vote for the Union because only its supporters would make such awful threats. 17 If the Employer desired to preserve the evidence, he could have pho- tographed the message 8 The Union relies on Tunica Manufacturing Company, Inc, 182 N LRB 729 (1970), N.L R B v Singleton Packing Corp, 418 F 2d 275 (C A 5, 1969), N L R B v Air Control Products, Inc, 335 F 2d 245 (C A 5, 1964) 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another incident related to the events of the February 9 meeting was Louis Herman's conduct on February 13 in taking out a pocket knife when told by Joe Williams of another employee meeting and making a remark, the meaning of which was unclear to the Employer's foreman, but which vaguely intimated there might be violence at the meeting. This incident could not have created an atmo- sphere of fear affecting the results of the election for sever- al reasons. Although Herman displayed the knife, his re- marks contained no threat directed to either Joe Williams or Foreman Barnes and when he was told to put the knife away he did. At the employee meeting that followed, there was no incident. What about the effect of the incident on Joe Williams and employees who may have witnessed it? Whatever ef- fect the incident had on Williams, it could not have affect- ed the results of the election since Williams voted a chal- lenged ballot which was never counted. As to employees who witnessed the incident, they later asked Foreman Barnes if Herman had threatened him or Williams and Barnes told them no, that Herman had not threatened any- body. The employees could not, therefore, have been frightened by the incident. The other instances of threats of violence shown by the record are unrelated to the February 9 meeting. Thus, there are the threats of violence attested to by Hamilton Collins and David Cusack, and overheard by Leslie Roberts. I am unable to understand how such threats could have affected the results of the election. The threats they described were not threats that Collins and Cusack would be beaten if they did not support the Union as in Steak House Meat Compa- ny, Inc., supra, rather the threats were addressed at what would happen in the event of a strike, namely, that Collins and Cusack would not be permitted to cross the picket line, and if they tried they would get hurt. Such remarks are typical of employer propaganda and provide a reason to vote against a union, rather than for it. In Collins' case, he did not vote at all, but I attach no legal significance to that fact. The record indicates that Collins was a very nervous individual who could be easily frightened. In my judgment, the incident was exaggerated in his own mind and affords no basis for setting aside the election. The testimony of Rosalie Simmons is essentially the same as that of Cusack and Collins, except that she couched the threat she received as a threat of loss of work, rather than violence, if the Union won and there was a strike. Again, the remark was typical of the statements made by an employer to influence employees against vot- ing for a union. I conclude that such statements did not constitute threats of loss of employment which would justi- fy setting aside the election."' The threat of loss of jobs described by Effie Mae Bass is of the type which may warrant setting aside an election, especially if the threat is uttered by a union representative. The situation is different, however, where the threat is by a 19 In Simmons' case, there is some question whether the remark she testi- fied to was made before the election or after It is clear it was after she had already voted and the statement could not have affected her Other employ- ees were present, but the Employer has not shown who they were and whether they had voted fellow employee. The Employer herein had shown clearly during the periods before both the first and second elec- tions its opposition to the Union. In the first election, its conduct had exceeded the bounds of Section 8(c) and was found by the Board to have been violative of Section 8(a)(1) of the Act. Given this circumstance, I cannot be- lieve that threats of loss of jobs voiced by fellow employees would be viewed seriously by the voters. One matter unrelated to the February 9 meeting con- cerns the credited testimony of employees Virlin McCrae and Lonnie Peavey, that, on or about February 8, Gertrude Hudson told them that she was taking notes of everything they said about the Union and turning the notes over to the Union. Hudson did not tell McCrae and Peavey why she would turn the notes over to the Union, but the implication was that it would be to take reprisals against them for their antiunion views. It is not a necessary implication, but it is a reasonable assumption that employees opposed to the Union would infer that such would be the purpose of the notes and the remark would tend to inhibit them in ex- pressing their views. I do not mean that note taking would itself tend to interfere with employees, because employees supporting the Union could very well take notes of compa- ny conduct for use in Board proceedings. Hudson indi- cated she took notes for such a purpose. But when employ- ees are warned of note taking of their remarks they could very well be intimidated. However, in light of the fact that the Union did not engage in any acts of misconduct or take reprisals against anyone, I conclude that Hudson's remarks were insufficient to warrant setting aside the election. The only remaining incident involves a threat to employ- ee James Gamble that if he did not vote for the Union sugar would be placed in the gas tank of his car. This threat was made to him by employees Louis Herman and Perry Walker on separate occasions.20 Why Gamble alone would be threatened with this particular form of harass- ment is not clear, but I view the threat as insufficient to warrant setting aside the election. Foreman Barnes testified that Gamble's reply to Walker was that he'd better not and he would vote as he wanted to, and employee Cusack testi- fied Gamble told Walker that if he did he'd be sorry. Such rejoinders suggest that the threat had no effect on the re- sults of the election?' In summary, I conclude that the conduct described here- in was not sufficiently substantial in nature to create a gen- eral environment of fear and reprisal such as to render a free choice of representative impossible. The record reflects a feeling of tension among the employees which I believe is 20 According to Joe Williams' testimony on direct examination, the threat which was made by employee Louis Herman was that "if people didn't support the Union they might find sugar in their gas tanks" and it was uttered in the presence of several employees On cross-examination, howev- er, he indicated that the threat was to one employee, not several, and while he testified several other employees were present, none was identified and none was called to corroborate him 21 The Employer asserts that as a result of the threats Gamble did not vote I find the evidence insufficient to support this assertion Employee Burnett Johnson testified Gamble told him he would not vote, although Gamble did not tell him that it was because he had been threatened, but this is not proof that Gamble did not vote Gamble did not testify and there is no explanation why he was not called as a witness Moreover, the list of voters used at the election would have shown whether or not Gamble voted and it was not offered in evidence INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO typical of a hard-fought campaign. It was the second cam- paign and feelings were strong, yet when one examines closely what happened one sees that in the final analysis nothing did happen. According to the Employer, however, it was denied an opportunity to develop a complete record in support of its objections in two particulars. The first involves the Employer's attempt to elicit from employees their subjective reactions to the events which have been described. This was an issue which seriously complicated the conduct of the hearing. With some excep- tions, the Employer was not permitted to elicit from em- ployees their subjective reactions because of my under- standing that the Board regarded such testimony as worth- less in formulating a decision whether an atmosphere of fear existed at the time of the election. At the hearing, the Employer sought unsuccessfully to persuade me by citing Steak House Meat Company, Inc., supra. In its brief, the Employer now cites several additional cases which it as- serts support its proffer and moves to reopening the hear- ing. The motion is denied. Knapp Sherrill Co., 171 NLRB 1547 (1968), is not in point. N.L.R.B v. Sanitary Laundry, Inc., 441 F.2d 1368 (C.A. 10, 1971); N L.R.B. v. Janler Plastic Mold Corp., 82 LRRM 2174 (C.A. 7, 1972); and Superior Wood Products, Inc., 145 NLRB 782 (1964), support the proposition that threats of loss of jobs are, objectively speaking, grounds for setting aside an election. None of these cases, however, ruled on the admissibility of subjective reactions to alleged threats. In Steak House Meat Company, Inc., supra, evidence of subjective reaction had been admitted into evidence, but there is no indication that the Board relied on the subjec- tive reaction in setting aside the election. In Poinsett Lumber and Manufacturing Company, 116 NLRB 1732 (1956), evidence of employee fears was re- ceived not for their subjective reactions but as part of an explanation of their overt behavior. The three other cases cited by the Employer do, howev- er, support its assertion In Sonoco Products Co. v. NL.R.B., 443 F.2d 1334 (C.A 9, 1971), the evidence of subjective reaction had already been received and the issue of admissibility was not directly decided, but the court ad- verted to testimony of one Mendoma about the effect of threats upon him and thus endorsed the admissibility of such testimony. In Cross Baking Co. v. N.L.R.B., 453 F.2d 1346 (C A. 1, 1971), the court clearly held that subjective evidence should be admitted to determine whether or not an atmo- sphere of fear was created by certain misconduct; and in Home Town Foods, Inc. v. N L R. B., 379 F.2d 241 (C.A. 5, 1967), the court held to the same effect Despite such case authority, I am denying the Employer's motion to reopen because it represents the view of courts of appeals which are at variance with the Board's view. As the court indicated in Cross Baking, supra, the Board holds that such subjective testimony should not be received on the authority of N.L.R B v Gissel Packing Co., 395 U.S. 575 (1969). Until the Board has indicated its ac- quiescence with the contrary views expressed in the cases cited above, I am bound by the Board's view. Iowa Beef Packers, Inc., 144 NLRB 615 (1963). 713 As the foregoing analysis indicates, despite my ruling, some evidence of employee fears was received, some to which I have already adverted. The testimony of the wit- nesses in that regard did not impress me. There was an indefinable quality about it which gave me the feeling that the employees who were frightened were frightened at the very prospect of having a union in the plant which might cause changes in working conditions which they consid- ered tolerable. An example is Elizabeth Glisson, an em- ployee opposed to the Union. As I pointed out earlier, she told Assistant Plant Manager Zemacks after the February 9 meeting that she was afraid to attend any more meetings. He asked her why and her answer was "The tension was building more and more every meeting and that I had just seen a lot of you know, union activity and things on televi- sion and I was just afraid to go back." Surely, the results of an election should not be set aside on the basis of testimo- ny such as this The second matter about which the Employer asserts it was denied a fair hearing and about which it has also moved to reopen the record relates to the proffer of testi- mony that employees were threatened with loss of employ- ment if they did not vote for the Union. The Employer asserts that at the hearing he was precluded from develop- ing this issue which had been raised by Objection 4. The record does not support this assertion. True, at one point in the examination of employee Lonnie Peavey, I rejected an offer of proof that Peavey was told that if the Union won the election, the first people to go would be the people against the Union on the ground that that matter was out- side the scope of the objections This clearly was a mistake occasioned by the fact that the offer of proof had been preceded by questions concerning offers of benefits (a mat- ter clearly outside the scope of Objection 4) and in making his offer of proof counsel added to the offer a threat of loss of job without ever having asked the witness about such a threat. However, the ruling did not purport to preclude the Employer from examining other witnesses on this objection and, in fact, he did so (e.g., Virginia Singleton, Hamilton Collins, and Rosalie Simmons). In the examination of Gla- dys Long, the issue arose again (in a manner similar to the way it arose with Lonnie Peavey) and when counsel assert- ed that he had been deprived of the opportunity to develop this issue with witnesses who had previously testified, he was given permission to recall any witness he wanted, plus any new witnesses.22 In my judgment, there is no basis for the motion to reopen. CONCLUSIONS OF LAW 1. Georgetown Dress Corp. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, 22 When counsel asserted that he had been deprived of the right to exam- ine witnesses who had previously testified, he was asked to identify them. He named Virginia Singleton , Hamilton Collins , and Rosalee Simmons, whose testimony had in fact been received and David Cusack, Lilian Brown, and Clara Tompkins, whom he had not even attempted to examine on this issue 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, is a labor organization within the meaning of RECOMMENDED ORDER 23 Section 2(5) of the Act. 3. The employees of Georgetown Dress Corp. who were members of the In-Plant Organizing Committee were not agents of Respondent within the meaning of Section 2(13) of the Act. 4. General Counsel has failed to establish by a prepon- derance of the evidence that Respondent violated Section 8(b)(1)(A) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, it is recommended that the complaint be dismissed in its entirety, and that Objections 2, 3, and 4 be overruled 24 23 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 24 Inasmuch as the Board has reserved decision on Objections I and 5, 1 shall make no recommendation respecting disposition of the election results