American Display Mfg. Co., Inc.

AMERICAN DISPLAY MFG. CO., INC. 21 American Display Manufacturing Co., Inc. and Union, the election is set aside, the bargaining Amalgamated Service and Allied Industries order heretofore granted shall be in effect, and the Joint Board, Amalgamated Clothing and Textile petition in Case 29-RC-4578 shall be dimissed. Workers Union, AFL-CIO and Thomas Pinto. Cases 29-CA-7276, 29-CA-7415, 29-CA- APPENDIX 7562, 29-RC-4578, and 29-RC-7687 NOTICE To EMPLOYEES October 20, 1981 POSTED BY ORDER OF THE DECISION, ORDER, AND DIRECTION NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN WE WILL NOT interrogate our employees On April 28, 1981, Administrative Law Judge concerning their union sympathies. Raymond P. Green issued the attached Decision in WE WILL NOT threaten to close our factory this proceeding. Thereafter, the General Counsel if our employees select Amalgamated Service filed exceptions and a supporting brief. and Allied Industries Joint Board, Amalgamat- Pursuant to the provisions of Section 3(b) of the ed Clothing and Textile Workers Union, National Labor Relations Act, as amended, the Na- AFL-CIO, as their collective-bargaining rep- tional Labor Relations Board has delegated its au- resentative. thority in this proceeding to a three-member panel. WE WILL NOT suggest to our employees that The Board has considered the record and the at- they form a committee to bargain directly tached Decision in light of the exceptions and brief with us over wages and other terms and con- and has decided to affirm the rulings, findings, ' and ditions of employment. conclusions of the Administrative Law Judge and WE WILL NOT in any like or related manner to adopt his recommended Order.2 interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. Pursuant to Section 10(c) of the National Labor WE WILL recognize the Union, effective Relations Act, as amended, the National Labor Re- from May 1, 1979, and upon request bargain lations Board adopts as its Order the recommended with it as the exclusive collective-bargaining Order of the Administrative Law Judge and representative of all employees in the appro- hereby orders that the Respondent, American Dis- priate unit with respect to rates of pay, wages, play Manufacturing Co., Inc., Queens, New York, hours, and other terms and conditions of em- its officers, agents, successors, and assigns, shall ployment and, if an understanding is reached, take the action set forth in the said recommended embody such understanding in a signed agree- Order, except that the attached notice is substituted ment. The appropriate bargaining unit is: for that of the Administrative Law Judge. All production and maintenance employees, DIRECTION including shipping and receiving employees, but excluding all salesmen, professional em- It is hereby directed that Case 29-RC-4578 be but excluding all salesmen, professional em- remanded to the Regional Director for Region 29, ployes, office clerical employees, guards who shall open and count the ballots of Thomas and supervisors as defined in the Act. Pinto and Francine Davis and thereupon issue a re- vised tally of ballots. If the Union obtains a major- AMERICAN DISPLAY MANUFACTUR- ity of the valid votes counted, a certification of ING CO., NC. representative shall issue. In the event, however, DECISION that a majority of valid votes are not cast for the STATEMENT OF THE CASE 'The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established RAYMOND P. GREEN, Administrative Law Judge: policy not to overrule an administrative law judge's resolutions with re- These consolidated cases (American Display Manufactur- spect to credibility unless the clear preponderance of all of the relevant ing Co., Inc. (Respondent, the Employer, or the Compa- evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. ny), Amalgamated Service and Allied Industries Joint 1951). We have carefully examined the record and find no basis for re- Board, Amalgamated Clothing and Textile Workers versing his findings. Union, AFL-CIO (the Union), 29-CA-7276, 29-CA- 2 Member Fanning would make the bargaining order here prospective 7415, 29-CA-7562, and 29-RC-4578, and Thomas Pinto, only in nature. See his concurring opinions in Beasley Energy. Inc.. d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977), and an individual, 29-CA-7687) were heard by me on var- Hambre Hombre Enterprises. Inc.. d/b/a Panchitos, 228 NLRB 136 (1977). ious days in July, October, and December, 1980. 259 NLRB No. 6 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Representation Proceeding ee if the employee tried to see things the company['s] way; that the employee did not need a The representation proceeding was initiated on May 7, company that the did not nee 1979, when the Union filed a petition for an election in union and that any problem can be settled between Case 29-RC-4578. On May 18, 1979, the parties execut- the company and the employee. Again on June 14, ed a Stipulation for Certification Upon Consent Election 1979, and on June 15, 1979, the Employer requested which was approved by the Regional Director for several employees to vote "no" at the election and Region 29. Thereafter, on June 15, 1979, a secret-ballot further promised some of the employees that if the election was held in a unit of all production and mainte- company could get rid of the union, the employees nance employees, including shipping and receiving em- would receive a million dollar insurance coverage, ployees, excluding all salesmen, professional employees, and pension plan coverage. office clerical employees, guards and supervisors as de- 3. On June 14, 1979, the Employer called a mass fined in the Act. meeting of employees in the plant at which meeting The tally of ballots served on the parties at the conclu- employees opposed to the union were permitted to sion of the election showed the following results: express their opinions while those for the union, were not permitted to do so. Approximate number of eligible voters-40 4. At a mass meeting of employees held June 1, Void ballots-0 1979, in the plant, the Employer said to the assem- Votes cast for Petitioner-16 bled employees that in the past 2-1/2 years, the Votes cast against the Union-7 union did not sign up any shops. This statement is Valid votes counted-33 false. Challenged ballots-8 5. At the mass meeting of June 14, 1979, the Em- Total votes counted-4 ployer stated to the assembled employees that the Challenges are sufficient in number to affect the re- company might have to close down if the union suits of the election. won the election. 6. During the course of the election on June 15, The challenged voters were Thomas Pinto, Juan e ane vs s nt 1979, a supervisor of the Employer was patrolling Alicea, Francine Davis, Joann Luquis, Janet Perry, Conroy Morgan, Hurelyon McLean, and Arold the voting line, approximately 15 feet from the Conroy Morgan, Hurelyon McLean, and Arnold Thompson. With respect to the challenges, the Regional voting booth. While so patrolling, he signaled to a Director, on November 30, 1979, issued a report after an group of workers on the voting line who left the investigation, wherein he recommended that the chal- voting line and went upstairs with the supervisor. lenge to Pinto's vote be overruled and that the challenge By these and other acts, the Employer denied the to Alicea's vote be sustained.' He further recommended employees the freedom to choose a bargaining rep- that a hearing be conducted as to the eligibility of Fran- resentative, in violation of the Act. cine Davis, Joann Luquis, Janet Perry, Conroy Morgan, On March 20, 1980, the Regional Director issued a pHurelyon McLean, and Arnold Thompsonexcep alse these Report on Objections. In the report, he directed that a people, with the exception of Davis, 2 were alleged to hearing be held on Objections 1, 2, 3, 5, and 6. Addition- hearing be held on Objections 1, 2, 3, 5, and 6. Addition- have been discharged for discriminatory reasons in Cases 29-CA-7276 and 29-CA-7415, which cases will be de- ally, he ordered that a hearing be held on another matter scribed below. The Regional Director's recommenda- arising during the investigation, to wit; an allegation that tions were approved by the Board on January 11, 1980. on June 15, 1979, the Employer, by Edward Herbst, After the election, the Union filed timely objections to made a statement to an employee implying that the selec conduct affecting the results of the election. They read tion of the Uat on as bargainn representatve w ould e as f 11 ws: futile and that the Company would never execute a col- lective-bargaining agreement with the Union. Also, he i. At a mass meeting of employees held in the directed that a hearing be held on the issue of whether plant on or about June 1, 1979, the Employer en- the discharges of Janet Perry, Arnold Thompson, couraged the formulation of a company union. Conroy Morgan, Joann Luguis, Hurelyon McLean, and 2. Several weeks prior to the election, the Em- Julio Nieves were motivated by discriminatory reasons ployer offered a life insurance policy to an employ- prohibited by Section 8(a)(1) and (3) of the Act, and therefore constituted objectionable conduct. 'Pinto was challenged by the Company as being a supervisor or alter- As to Objection 4, the Regional Director recommend- natively because he did not share a community of interest with the unit ed that it be overruled. It was also ordered that the unre- employees. The Regional Director for Region 29 concluded, however, solved issues in the representation case be consolidated that at the time of the election Pinto was a nonsupervisory employee en- gaged in making samples and doing production setup work. Accordingly, hearig with certain unfair labor practice cases de- the Regional Director concluded that Pinto was an eligible voter. scribed below. 3 On May 19, 1980, the Board, after re- As to Alicea, the Regional Director concluded that he had quit his em- ceiving the Employer's exceptions to the Report on Ob- ployment prior to the election, and therefore was not an eligible voter. jections dated March 20, 1980, adopted the Regional Di- ' Francine Davis' vote was challenged by the Union on the grounds that she was a representative of management and/or because she enjoyed rector's report and overruled the Employer's exceptions. special privileges and did not share a community of interest with the unit employees. In her case, the Regional Director concluded that the investi- ' The challenged ballot issues were consolidated with the unfair labor gation raised substantial and material issues of fact, which would best be practice cases on November 30, 1979. The objection issues were consoli- resolved through a hearing. dated with the unfair labor practice cases on March 20, 1980. AMERICAN DISPLAY MFG. CO., INC. 23 B. The Unfair Labor Practice Cases in April, May, and June, Respondent by Herbst and Harris held meetings with employees for the pur- A charge in Case 29-CA-7276 was pose of selecting and remied bying its employees' on June 21, 1979, and a charge in Case 29-CA-7415 was filed by the Union on August 15, 1979. Thereafter on grievances. August 29, 1979, the Regional Director issued a consoli- 10. That on May I and June 1, 1979, and on var- dated complaint and notice of hearing, which alleged the ious other unknown dates in April, May, and June, ~~~~following conduct: ~Respondent by Herbst, and Harris urged the cre- ation of an employee organization. 1. That on April 20 and 27, May 3 and 11, 1979, 11. That on May 11, 1979, Respondent laid off, in and various other unknown dates during April, May violation of Section 8(a)(1) and (3) of the Act, the and June 1979, Respondent by Edward Herbst, following named employees: Mark Harris and Gerald Davis and other unknown agents and supervisors, interrogated employees con- Janet Perry Joann Luquis cerning their membership in, activities on behalf of, Arold Thompson Hurelyon McLean and sympathies for the Union. Conroy Morgan Julio Nieves 2. That on April 20 and 27, May 10 and 17, June On October 30, 1979, the Union filed a charge in Case I and 14, 1979, and on various other unknown dates 29-CA-7562 and on January 8, 1980, Pinto filed a charge in April, May and June, Respondent by Herbst and in Case 29-CA-7687. On February 21, 1980, a complaint Harris, and other unknown agents and supervisors was issued in Case 29-CA-7687, alleging in substance, threatened its employees with plant closure and the discriminatory discharge of Thomas Pinto. On other reprisals if they joined, supported or assisted March 20, 1980, a consolidated amended complaint was the Union. issued which, in addition to realleging the allegations set 3. That on April 20 and 27, May I and 10, June forth above, also contended that Respondent, since May 14 and 15, 1979, and on various other unknown 2, 1979, has refused to bargain collectively with the dates in April, May and June, Respondent by Union. At paragraph 29 of this last pleading, the Region- Herbst and Harris and by other unknown agents al Director asked for the issuance of a bargaining order and supervisors offered, promised and granted in the event that the Union loses the election after count- medical and life insurance benefits to induce its em- ing all the ballots, including those challenged ballots ployees to refrain from becoming or remaining which may be opened. members of the Union, and to induce them to aban- Finally on April 15, 1980, the Regional Director issued don their membership and activity for the Union. an order further consolidating cases, pursuant to which 4. That on April 20 and 27, May I and 10, June all of the foregoing matters were consolidated for hear- 13 and 14, and on various other unknown dates, Re- ing. spondent by Herbst and Harris, and other unknown Upon the entire record including my observation of agents and supervisors, offered and promised wage the demeanor of the witnesses, I make the following:4 increases, vacations, profit sharing, and other bene- fits and improvements to induce them to refrain FINDINGS OF FACT from becoming members of, or remaining members of the Union and to refrain from giving any assist- A. Jurisdiction ance or support to the Union. Respondent is a New York corporation with its princi- 5. That on April 20 and 27, 1979, and on various pal place of business located at 180-10 93d Avenue, other unknown dates in April and May, Respondent Queens, New York, where it is engaged in the manufac- by Herbst, Harris and Davis created the impression ture and sale of jewelry displays and related products. that the meeting places, meetings and activities of During the past year, Respondent purchased goods and its employees were kept under surveillance. materials valued in excess of $50,000 which were deliv- 6. That on April 27, May 1, 2, and 3, 1979, and ered to its plant in interstate commerce directly from on various other unknown dates, Respondent by States other than the State of New York. Respondent Davis and by other unknown agents engaged in sur- admits and I find that it is an employer engaged in com- veillance of the Union's meeting places, meetings merce withing the meaning of Section 2(2), (6), and (7) and activities and also the concerted activities of its of the Act. employees. 7. That on April 20, 1979, Respondent by Herbst B. The Labor Organization Involved asked its employees to ascertain and divulge the Union activities, sympathies, and membership of its The complaint alleges, the answer admits, and I find employees. that the Union is a labor organization within the meaning 8. That on June 15, 1979, Respondent by Herbst of Section 2(5) of the Act. told employees that it would be futile to select the Union as their collective bargaining representative by stating that the Respondent would never execute An organizational effort was begun by the Union on a collective bargaining agreement with the Union. or about April 12, 1979, when Business Agent Franklin 9. That on April 20 and 27, May 3, June 1, 14, and 15, 1979, and on various other unknown dates 'None of the parties filed briefs. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western approached employees Eleazar Kelly and Both Davis and Herbst credibly denied the above testi- George Jeffers who signed union authorization cards on mony of Pinto. It is noted that as Pinto was initially un- that date.5 At the same time these two employees were certain as to when this meeting took place, he was asked given additional cards for distribution amongst the em- about its timing and then stated that it occurred about a ployees, and the evidence herein indicates that they were month before he signed a union card on May 1. This as- the two main union advocates of the employees. sertion would thereby place the meeting at a time before From about April 12 on, union business agents arrived the Union commenced organizing Respondent's employ- at the premises of the Company where they stationed ees. themselves outside a fence facing the main entrance and Pinto also testified that some weeks after the first con- where they spoke to and solicited employees as they ar- versation described above, he was again called into the rived at work and during lunch times. From April 12 to office with Herbst and Harris, and asked if he was going May 2, the Union obtained 33 valid authorization cards to join the Union. According to Pinto, he told them that executed by employees of the Company, including cards he was not sure yet, whereupon Herbst said that if he signed by the six alleged discriminatees." joined the Union he, Pinto, would be the biggest loser It also is established that at the latest, by the last week because he was receiving regular raises and Christmas of April 1979, the Employer was fully aware that the bonuses, which he would no longer get if the Union got Union was conducting an organizational campaign, in. Pinto also asserted that during this conversation which, as noted above, was conducted in full view im- Herbst said that he could stop him from joining the mediately outside the Employer's premises. Union by making Pinto part of management. This con- With respect to the union activities of the alleged dis- versation was credibly denied by Herbst. criminatees, there is evidence indicating that Joann Luquis and Janet Perry solicited cards on behalf of the E. The Meeting of April 29 or 30, 1979 Union. However, the evidence does not establish any A number of the General Counsel's witnesses testified particular union activities other than the signing of cards to a series of three meetings held by the Employer in by Nieves, Morgan, or McLean. As to Thomas Pinto, his testimony reveals that although he signed a card on May June e f 1, he kept a "low profile" on this subject at least for the what took place at these meetings is that with the excep- what took place at these meetings is that with the excep- initial part of the campaign and did not surface as a tion of the General Counsel's witnesses, Pinto and Leon- union activist until sometime later in May. union activist until sometime later in May. ard French (who was only present at the second meet- On May 1, 1979, the Union mailed to the Company a ing), his other witnesses speak English as a second lan- demand for recognition but the letter was not accepted guage and had substantial difficulty in communicating and was returned unopened to the Union. Thereafter, on what was said at these meetings. (It is established that May 7, the Union filed the petition for an election in Case , , , -4578. Herbst addressed the employees in English.) Moreover, and perhaps because of the passage of time between the D. Events in April 1979 events in question and the time when the witnesses were called to testify, there was a fairly high degree of dispar- According to the testimony of Thomas Pinto, some- ity between what the General Counsel's witnesses could time in March or April shortly after the Union first ap- recollect as having been said at these meetings. peared, he was called into the office with Ed Herbst, It is agreed, however, that the Company did call a Mark Harris, and Gerald Davis.7 He testified that at this meeting to discuss the Union on April 29 or 30, where meeting the Company's management was trying to figure Herbst did most, and probably all of the talking on out a way to discourage employees from joining the behalf of Respondent. Based on the entire record, includ- Union and that Herbst told him, "see what you can do ing my observation of the demeanor of the witnesses, out there and we'll look out for you later." Pinto further and also because Herbst's version was essentially cor- stated that Gerald Davis suggested that Eleazor Kelly roborated by Pinto, I shall credit the former's account and an employee named King be discharged as they which is as follows. Herbst testified that he told the as- were considered to be the instigators. 8 To this, Pinto as- sembled employees that a large portion of Respondent's serted that he responded by saying that discharging these business was with a company called Riviera, that Riv- people would be a bad idea because it would upset the iera's major concern was timely delivery, and that he employees and make them more eager to have union rep- was concerned that if a union came in, and possibly resentation. caused a strike, the Company might not be able to make timely deliveries and thereby lose Riviera as a customer s The authorization cards state, "I hereby designate and authorize the timely deliveries and thereby lose Riviera as a customer Amalgamated Service and Allied Industries Joint Board, ACTWU - which could cause the possible loss of jobs. Herbst also AFL-CIO-CLC, as my exclusive collective bargaining agent in all mat- testified that the only thing an election could do was to ters pertaining to wages, rates of pay and conditions of work." force him to bargain with the Union, but that the Union ' Hurelyon McLean and Conroy Morgan signed authorization cards on could not force him to give anything he did not want to April 26, 1979; Joann Luquis signed a card on April 25, 1979; Julio Nieves signed a card on April 30, 1979; and Janet Perry and Thomas give and that the Union could only attempt to negotiate. Pinto signed cards on May 1, 1979. ' Ed Herbst and Mark Harris are the co-owners of the Company. 9 It is agreed by the parties that at the meeting on June 14 Herbst read Gerald Davis was the plant manager. a speech. By so agreeing, however, the General Counsel did not agree " It does not appear from this record that anyone named King was em- that the only things said by Herbst on that date are contained in the writ- ployed by the Company during any relevant time herein. ten speech. AMERICAN DISPLAY MFG. CO., INC. 25 He stated that he told the employees that some of the occurred. On the other hand, Nydia Ortiz, Janet Perry, promises being made by the Union were completely ri- and Conroy Morgan place the meeting much closer in diculous and that there was no way the Company would time to the first meeting. Obviously, if Morgan and be able to stay in existence by giving the kinds of raises Perry were present, this meeting had to have occurred that the Union had promised. Herbst testified that he said prior to May 11 which is when they were laid off unless, that in the event of a strike he would be forced to have of course, their testimony was not based on their own the Company continue to do business by using subcon- observations but on what other employees told them. tractors to satisfy its delivery requirements and that he Indeed, given the testimony of Perry and Ortiz it would told the employees that anyone was free to come into his be within the realm of possibility that this meeting was office and discuss whatever needed to be discussed. He held before the petition was filed. 2 denied that he suggested to employees that they form an Given the above, it seems to me that there is a sub- employee committee to meet with him to discuss em- stantial degree of doubt as to when this meeting was ac- ployment conditions. Finally, he stated that he told the tually held. For if I were to credit Ortiz, Perry, and employees that his father had worked for a company tually held. For if I were to credit Ortiz, Perry, and employees that his father had worked for a company Morgan, it would appear that it was held before May I 1. called Nautiloid, which Herbst had purchased, that had O n th e othe r hand, Herbst's assertion that it was held before May 11. closed down as a result of a strike and that all the em- the other hand, Herbst's assertion that the meeting ployees of that company had been dismissed.' 0 was held on June I is an assertion contrary to his inter- est, inasmuch as if it was held prior to May 7 when the F. The Second Meeting petition was filed, nothing he said on this occasion could be used to set aside the election. 13 In actuality, I cannot Like the first meeting described above, there are a va- say with any assurance when this meeting was held, riety of accounts as to what took place, some of which riety of accounts as to what took place, some of which except that it seems more reasonable to conclude that it are inconsistent. On the whole, it seems to me that the except that it seems more reasonable to conclude that it aversinons given by Thomas Pinto, iEd Herbst, and Leon- was held after the petition was filed, because, inter alia, if ard French came closest to an accurate description of this was not so, it would have been a point raised and what took place on that occasion and it is based on their argued by Respondent. combined testimony that I make my findings. " As to the substance of the meeting, it appears that The first question, apart from what was said, is when Herbst called this meeting, the main thrust of which was did this meeting take place? In this regard both Pinto to describe the employees' existing benefits. Also, al- and Herbst asserted that the meeting was held in early though Herbst testified that the handing out of the insur- June, and Herbst specifically placed it as having oc- ance forms by a woman from the insurance company curred on June 1. Leonard French and Gerald Davis took place at an earlier time, May 2, it seems to me that could not give any indication as to when this meeting the record as a whole suggests that this probably was done on that occasion and the testimony of Gerald Davis 'o Pinto's version of this meeting, which was the most detailed of any tends to corroborate this conclusion. of the other versions testified to by the General Counsel's witnesses, was In relation to the insurance issue, Herbst testified that that Herbst started talking about how the Union was no good and that all he had decided to obtain a medical insurance plan for the they wanted was to take the employees' dues. According to Pinto, Herbst said that after the Union got it, he would have to pay more money to the employees in October 1978 and began talking with a va- workers which would mean that he would have to raise his prices which riety of insurance companies at that time. He states that could adversely affect his competitiveness. He stated that Herbst said that he finally made an agreement with Colonial Life Insur- Riviera constituted 40 to 60 percent of his business, that the last shop which had a contract with Riviera had lost the account when they went ance Company in April 1979 for the plan which went on strike, and that as a result Respondent had obtained Riviera's business. into effect on May 1. The reason for the delay between Pinto stated that Herbst told the employees that he did not want what October 1978 and the time he made the agreement is ex- happened to the other shop to happen to Respondent, that he did not plained as being the result of comparison shopping; inas- want to lay off anybody, and that he wanted to have more people work.- ing for the Company because that would mean more profit for the Com- much as most of the carriers insisted on family coverage pany. Pinto also testified that Herbst said that if the Company lost the which was more costly than what Herbst intended. The Riviera account it would hurt the Company greatly and could result in agreement with Colonial on the other hand provides layoffs. He stated that Herbst said that the Union would probably have to go out on strike because he was not going to give what the Union only for employee coverage, and therefore is a good deal wanted. Finally, Pinto stated that Herbst told the employees that if there less expensive. was a strike they would lose the Riviera account because the Company In any event, the evidence herein discloses that Herbst could not deliver on time, and that this would result in layoffs. did begin to contact insurance companies about medical It is noted that Nydia Ortiz testified that Herbst's comments about Riv- iera and the consequences of strikes took place at the second meeting. In coverage for his employees well before any union activi- this respect she asserted that Herbst said that if Riviera contracted with ties commenced and that he did enter into an agreement someone else a lot of employees would be without work and that if there with Colonial for a plan which became effective on May was a strike the Company could replace the strikers. In a pretrial affida- vit. Ortiz also asserted that, "I recall in one of the meetings that Mr. , before the Unon filed Its petition for an election. Herbst said that if the Union came in, it would contract out some of the work. He said he would send out the work during the strike if the Union 12 Ortiz and Perry testified that at this meeting the woman from the asked for too much money and could not afford it." insurance company handed out forms, which Herbst stated occurred on " In this respect, I am of the opinion that the testimony of Ortiz, May 2, that French was present and offered to represent the employees Morgan, and Perry is confused. In my opinion they had difficulty in and and that Herbst made statements about Riviera, and closing the plant. recalling what took place and also tended to lump the meetings together, The latter remarks, however, I am convinced occurred on April 29 or 30 ascribing statements made at the first meeting to this meeting. According- and were made in the manner described above. ly, unless otherwise noted, I do not place much reliance on their testimo- The Ideal Electric and Manufacturing Company, 134 NLRB 1275 ny. (1961). 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It appears that at the meeting under discussion, Herbst G. The Layoffs of Joann Luquis, Janet Perry, Conroy made use of a blackboard with one side devoted to a list Morgan, Hurelyon McLean, Arnold Thompson, and of the existing benefits, including the aforementioned Julio Nieves medical insurance plan, and the other side entitled union benefits was set off by a large question mark. According All of the above-named employees were laid off on to Pinto and Herbst, the latter then proceeded to explain May 11, 1979. The General Counsel contends that these the current employee benefits which included annual layoffs were motivated by discriminatory reasons, and raises each fall, 2-week paid vacations, eight holidays, thereby violated Section 8(a)(l) and (3) of the Act. Re- profit and pension plans, interest free loans, Christmas spondent argues that the layoffs were the result of eco- bonuses, Thanksgiving turkeys, and an open door policy. nomic reasons, were not discriminatorily motivated, and This last item seems to have generated some discussion therefore were not violative of the Act. and gives rise to an issue in the case. In February 1979, a company called K & M Jewelry, According to Pinto, Herbst suggested during this Inc., ordered from Respondent a sample of a jewelry dis- meeting that the employees form a committee which play preparatory to a very large order." would then negotiate with the Company without paying According to Jerry Birnbach, a vice president of K & anybody, presumably union dues. Pinto stated that at this M, the original delivery date envisioned for the produc- point Leonard French, a salesman, interjected and said, tion order was to be March 5 for 250 units and March 15 "If you want to give me your money, I'll represent you." for the remainder. The total order was for about 800 Herbst acknowledged that French did make this remark units with a total price of about $60,000. This was a but denied that French was speaking on behalf of the large order compared to the normal order received by Company. On this point, Herbst stated that he merely the Company which generally was for $5,000 or under. mentioned that the Company had an open door policy According to Birnbach, because there was a delay in the and that employees could come and talk to him. delivery of the sample unit, the order was not approved According to French, he blurted out that he would by him until early March 1979. represent the employees. He stated that his remarks were Herbst and Davis testified that as a result of this large spontaneous and not sponsored by the Company. He also order from K & M they decided to hire, on a temporary stated that he said this as a joke and in this respect, Pinto basis, five additional employees, not necessarily to work agreed that after the remark was made French began to on the K & M units, but to fill out the needs of the shop laugh. French, however, went on to explain how it came generated by this large order. As a consequence, the to pass that he made this statement. He testified that at Company contacted a number of employment agencies the meeting Eleazor Kelly said that he wanted someone and hired Arnold Thompson on April 2, 1979, Janet to represent him, whereupon Herbst suggested that each Perry and her brother Philip Perry on April 5, 1979, and department elect a representative who would then speak Conroy Morgan and Hurelyon McLean on April 10, to the Company for their respective departments. As 1979.18 Thus, each of these employees was hired almost French put it; "In other words, if one section felt that immediately before the Union commenced its organiza- they desired a raise, that representative for the section tional campaign. would go in and discuss it." Sometime after the five above-named employees were Because I am of the opinion that French was an hired in April 1979, Joann Luquis notified the Company honest and disinterested witness, '4 and also on demeanor that she wished to resign for personal reasons. Accord- grounds, I shall credit his testimony. Thus, it is conclud- ingly, an arrangement was reached with Davis and ed that Herbst, at this meeting, did suggest that the em- Herbst that she would leave the Company sometime in ployees elect representatives from each department for the mid-May.19 the purpose of bargaining directly with him regarding As evidenced by the Company's records, the first 200 wages and other terms and conditions of employment. In or 250 units of the K & M order were delivered by Re- this respect, it is concluded that Respondent violated spondent in or about the third week of April and on or Section 8(a)(1) of the Act.'s In all other respects, howev- about April 19, K & M directed the Company to hold er, it is my opinion that the General Counsel has failed off delivery of the remaining units. In this respect, Birn- to prove by a preponderance of the credible evidence bach of K & M testified that because Respondent did not that Respondent violated the Act by anything else said at this meeting. 56 opinion that they are not supported by credible evidence. As far as the announcement of the insurance plan, as it is concluded that the decision " French was a salesman who left the Company's employ and was not to obtain this benefit was made by the Company prior to the commence- employed by Respondent at the time of the hearing. There was no evi- ment of the union activities and that its implementation was before the dence to suggest that he was in favor of the Union or biased against the filing of the petition, the granting of this benefit, along with its announce- Company. As will be discussed, infra, the reason French left the Compa- ment cannot violate the Act. The Baltimore Catering Company, 148 ny was because his sales and commissions suffered as a result of Pinto's NLRB 970 (1964). failure to have samples made on time. 1' In many but not all cases, the Company makes a sample of an item " eroglastics Inc. v. N.LR.B., 610 F.2d 455 (6th Cir. 1979); Heat Re- ordered by a customer which must be approved by the customer before search Corporation, 243 NLRB 206 (1979). production can start. The samplemaker employed by Respondent was " In the absence of a brief from the General Counsel and because of Thomas Pinto, who was described by Herbst as being very talented. This the somewhat general allegations of the complaint, it is more difficult to sample-making function is clearly the most skilled production operation define what he specifically alleges as having occurred at this meeting in the shop and is vitally important to the Company's business. which was unlawful. However, to the extent that the complaint alleges " The other alleged discriminatee, Julio Nieves, was hired on March that Respondent, on this occasion, threatened plant closure and other re- 29, 1979, and Joann Luquis was hired long before that time. prisals. it is recommended that these allegations be dismissed as it is my 'g Luquis did not testify in this proceeding. AMERICAN DISPLAY MFG. CO., INC. 27 meet the originally planned delivery dates, March 5 and a practice of subcontracting work when it is economical- 15, he could not affect timely delivery of these units to ly advantageous, and there is no evidence to indicate his own customers. He stated that he therefore directed that at this time, the Company was deliberately subcon- Herbst, over the latter's strenuous objections, to hold off tracting work in order to create a shortage of work in its production and delivery of the remaining units for 2 or 3 own shop so as to justify the layoffs. Also, Nydia Ortiz months. testified that about 2 days after the layoffs occurred the According to Davis and Herbst, in light of the action Company started hiring new employees. However, Ortiz by K & M in delaying delivery of the order, much of could not offer the names or even the descriptions of the which had not yet been fully assembled or packed, it was alleged new employees, and the Company's payroll re- decided to lay off some employees, basically on a senior- cords disclose that no new employees were hired until ity basis. However, as to Luquis, it was decided that she after July. As to this latter point, although the Company should be among the people to be laid off because she asserts it did not hire new employees after May II, it had earlier notified the Company of her intention to quit, was conceded that just prior to the closing of the shop and notwithstanding the fact that Davis had shortly for the 2-week vacation in July, it utilized the services of before expressed his approval of her desire to extend her a manpower agency which sent over about eight men to employment to the end of May. As explained by Herbst, help load trucks for I day. he decided to let Luquis go at this time rather than a less Subsequent to the filing of the unfair labor practice senior employee because Luquis was going to leave in charges in Cases 29-CA-7276 and 29-CA-7415, Re- the near future anyway. With respect to Julio Nieves, it spondent, no doubt in an effort to limit its potential la- appears that his selection for layoff by Davis was a mis- bility to the people alleged to have been discriminatorily take, inasmuch as he had more seniority than Philip laid off, sent written notifications which unconditionally Perry. According to Davis, when he discovered this mis- offered to reemploy McLean, Morgan, Perry, Nieves, take it was decided to let the decision stand because it was feared that if the Union found out about the mistake, and Thompson. In this respect, the parties stipulated that they would make an issue of it. The others who were Morgan received an offer on August 25 and returned to laid off did, in fact, have the least seniority. work; that Nieves received an offer on August 27, but There is no dispute as to the fact that those employees did not return to work; that Perry received an offer on who were told that they were laid off on May II were August 25 and returned to work; that Thompson's offer told that the reason for their layoffs was because work was sent on August 29, but that he did not return to was slow.20 The only seriously disputed factual issue is work; and that McLean received an offer on September whether Davis also told them that they would be re- I and returned to work. Luquis was not offered her job called when work became available. In this respect, back. Davis denied that he told any of these employees that they would be recalled and stated that, with few excep- H. The June 14 Meeting tions, the Company's policy is not to recall any laid off It is agreed by the parties that on June 14 Herbst read workers. In support of the General Counsel's position, a speech to the employees and nothing contained in the Conroy Morgan and Nydia Ortiz testified that Davis told written speech is alleged to be unlawful by the General the employees when he laid them off that if anything Counsel. At most, it is asserted by the Union in its Ob- turned up he would call them back. Their testimony on jection 3 that at this meeting the Employer allowed an this point, however, was not corroborated by other wit- employee to make antiunion statements while prohibiting nesses called by the General Counsel who asserted that other employees from talking. In this regard, the evi- they were present at this transaction. Based on the dence establishes that Herbst read his speech which was record herein, I shall credit the testimony of Davis.21 prefaced by the remark that he did not want to get into a While there was some testimony by Pinto challenging discussion with employees at the meeting. It is asserted the proposition that work was slow, based on his asser- by Pinto that Francine Davis, 22 "jumped up and started tion that as of May 11 the Company was contracting out to say something that I can't recall." Similarly, Nydia work, the evidence establishes that subcontracting was a Ortiz testified that Francine Davis said that the Union normal part of the Company's business practice both was no good and that the Company was giving better before and after the events which are here in dispute. benefits. According to both Pinto and Ortiz, employee That is, the evidence discloses that the Company has had Kelly at this point tried to say something but that Herbst told him to be quiet whereupon Pinto left the meeting in ' Nieves was not actually present on May II and was told of his told him to be quiet whereupon Pinto left the meeting in layoff later. protest. "1 Janet Perry's testimony was that Davis did not say anything about Nothing in this transaction strikes me as being objec- recalling the employees when he notified them that they were being laid tionable conduct on the part of the Company. At most, off. She asserts, however, that when she spoke with Harris he said some- the evidence shows that Francine Davis ignored, for a thing like he would call her back. Pinto, who testified that he was present at the layoffs on May II, states brief moment, Herbst's injunction not to talk, to make a that Davis told the employees that work was slow, a contention which short and essentially innocuous remark. The broad asser- Pinto says he challenged. He did not, however, corroborate the assertion tion by the Union that antiunion employees were permit- that Davis told the employees that they would be recalled. ted to speak at this meeting is, in my opinion, simply not Nieves, Thompson, and Luquis did not testify in this proceeding. I also note that Davis was no longer employed by the Company at the supported by the evidence. time he testified in this proceeding and that I was impressed by his candor. 22 She is the wife of Plant Manager Gerald Davis. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. Miscellaneous 8(a)(1) Allegations how can you join the Union if the Union is going to do nothing for you." According to Nydia Ortiz, about 2 weeks after she It is evident to me that the discussion about insurance signed a card for the Union,2 3 when she went into the merely involved asking Toro to fill out the form re- office either Ed Herbst or Mark Harris (both of whom quired for the medical insurance plan which had previ- were allegedly present) asked her if she had filled out a ously become effective on May 1. Accordingly, it is con- card for the Union. She states that when she said that cluded that the evidence herein cannot support the con- eluded that the evidence herein cannot support the con- she had not, he asked if she knew anybody else who tention that Toro was promised a new benefit in order to signed cards and further asked if she knew of anyone influence his vote. Also, as in the case of Nydia Ortiz, I who was going to vote for the Union. When she again have a substantial doubt as to whether Toro was interro- responded that she did not know, Ortiz stated that she gated and it is my opinion that his testimony concerning was told to speak to the other employees and tell the othis allegation was too vague and inconclusive to war- how she had gotten a loan for the hospital and that the rant such a conclusion. Company had benefits.24 Similarly, the testimony of Patrick Lavista regarding Herbst denied that he interrogated Ortiz or any other an alleged interrogation by Mark Harris was fraught employee about union activities. In relation to Ortiz' tes- with an even higher degree of uncertainty than the testi- timony, evidence of her bias against the Company was mony of Toro and is not, in my opinion, sufficient to elicited by the fact that she was very upset over her dis- prove, by a preponderance of the evidence, the conten- charge in October for fighting with another employee.25 tion proposed by the General Counsel. Since his testimo- Respondent also showed that although Ortiz gave two ny was relatively short and unchallenged by cross-exami- affidavits to the Board's Regional Office in June and July nation, it is quoted as follows: 1979, nothing in either affidavit makes mention of the al- leged interrogation. Indeed when pressed as to the ap- Q. Mr. Lavista, did you ever have any conversa- parent inconsistency, Ortiz testified that, on the day of tion with anyone from management about the the election, Herbst told her to "make sure you give a Union? good vote," a phrase which conforms to the affidavit A. With the union people, I talked to them. wherein she stated that Herbst merely told her to vote Q. With anyone from management of American no, and that he was counting on her vote. In this respect, Display? Herbst testified that during a period prior to the election, A. No. Nobody. he spoke to almost all of the employees on a direct basis Q. Have any conversation with Mr. Herbst about and told them he was counting on their vote. It is there- the Union? fore evident that Ortiz' assertion that she was interrogat- A. What coverage, what they have, you know. ed most probably is not correct, but is rather a result of Q. You asked Mr. Herbst? confusion resulting from the circumstances involved and A. Who is Herbst? the language barrier that existed. I have no doubt that Q. Ed Herbst, the owner of American Display. when Herbst spoke to her and told her that he was Do you know who he is? counting on her vote, this elicited a response from her A. Herbst, no. and that she interpreted the transaction as meaning that Q. How about Mark Harris, do you know who she was being questioned about her feelings for the Mark Harris is? Union. In fact, I do not believe that she was interrogated A. Yeah, I know Mark Harris. and it is concluded that her testimony on this point is the Q. Did you ever have any conversation with him result of a misunderstanding. about the Union? It is alleged that Herbst interrogated an employee A. Never. He came up to me and asked me what named Jose Toro, and also promised him life insurance I think of. . . did I join the Union, that is no good, benefits in an attempt to influence his vote. Toro was you know. originally called by the General Counsel without the aid Q. Did it happen before or after you signed your of an interpreter. When it became apparent that his testi- card?2 6 mony could not be obtained without an interpreter, one A. After. was provided. When he resumed his testimony, Toro Q. Do you recall how much later, after you was initially asked if he ever talked to Herbst about the signed? Union and his response was "no." He was then asked, in A. A week. a leading manner, if he was ever offered life insurance by Q. Where were you when you had this conversa- the Company, and to this he responded that this was of- tion with Mark Harris? fered by Herbst and Harris about 4 weeks before the A. I was cleaning his office. election, apparently when he was asked to fill out a card Q. You were cleaning his office? for insurance. Toro went on to testify that this occurred A. That's right. when he walked into the office whereupon, "he told me Q. And tell me, how did the conversation start? A. He asked me, what I think about the Union. " She signed a union card on April 26. Q. And, what did you respond, what did you say " It appears that, prior to the union activities, Ortiz had received a to him? loan from the Company to pay for medical expenses. " It is not alleged by the General Counsel that her discharge was un- lawful. 26 He signed a card on April 30, 1979. AMERICAN DISPLAY MFG. CO., INC. 29 A. I didn't want him to know that I had in mind obvious from his affidavit that at most Jamison was told to join the Union; because he would tell me not to that despite the Union's promises there was no guarantee join it. that the Company and the Union would make a contract, Q. So, what did you say to him? and that if the Union called a strike the Company would A. I said to him-he just told me-he shook subcontract its work so as to maintain its operations. The my-just don't join you know. statement in Jamison's affidavit to the effect that there would never be a contract between the Company and On direct examination, employee Douglas Jamison tes- the Union is clearly not what was said by Herbst, but tified that on the day of the election he had a private ther constitutes his interretation of Herbst's remarks. conversation with Herbst. He states that Herbst told him rather constitutes his interpretation of Herbst's remarks. Similarly, it is evident to me that the statement about the that the Union was no good, that he should vote no, that insurance plan, if made, merely represented a description the Company had a million dollar medical plan which of the plan which had gone into effect on May 1, and the Union could not offer, and that he was just waiting therefore was not a promise of a new benefit. In short to get the Union out in order to put the plan in effect. nothing related in Jamison's testimony can be concluded Jamison further testified that during this conversation to warrant a finding that Resondent violated the Act. Herbst said that, "[T]he Union could promise us this and to warrant a finding that Respondent violated the Act. promise us that but that's just a lot of crap-junk in The testimony of Philip Perry, who was discharged in other words." When Jamison said that he could not July 1979 for fighting with another employee,"2 is also recall any more of this conversation, the General Coun- relied on by the General Counsel to establish certain sel asked him; "Was there any discussion regarding nego- 8(a)(l) allegations. His testimony, in my opinion, was ex- tiating a contract with the Union during that meeting?" tremely confused and difficult to piece together. In es- To this last question Jamison responded that Herbst said sence, he testified that sometime between the time he that if the Union was elected, "[H]e would have to close signed a union card2" and the election, but probably on the Company down, lay off, close the Company and give the day before the election, he had a conversation with the jobs to private contractors because he would have to Herbst in his office. It appears from his testimony that make a living somehow." When the General Counsel this came about because after Herbst had previously next asked; "Did Herbst ever indicate whether he would mentioned that the Company had a policy of giving or would not sign a contract with the Union," Jamison loans, Perry and another employee, Alphonse Ormsby, testified, "he said no way he would sign." decided to, "get some money off of him." Accordingly, On cross-examination, Jamison testified that paragraph Perry testified that he asked Herbst for a $50 loan and a 6 of his pretrial affidavit represents what Herbst told him job for his mother while telling Herbst, after being during the above-noted conversation. This reads: "Herbst asked, that he would vote against the Union. These re- says if the Company and the Union cannot agree on a quests were not granted by Herbst who testified that contract and the Union pulls a strike, the Company these two employees came to him soliciting a bribe. could contract out the work because they have to do The testimony of Perry makes it clear to me that he business and they would have to live and no law could was trying to hustle Herbst by offering to vote against tell him otherwise." Also at paragraph 5 of his affidavit, the Union in consideration for being paid. I find him to Jamison made the following statements: be entirely unreliable as a witness and his testimony in support of the complaint's allegations is completely re- I was in the saw department about 9:30 a.m., jected. June 15, 1979. It was the day the NLRB was to run Roy Mitchell, an employee, testified that he had three the election. I was working, performing my normal personal conversations with Herbst. In his direct testimo- duties. Ed Herbst stopped me as I was working, and ny, he stated that the first of these conversations oc- he was campaigning on behalf of the company. He curred about a week after he signed a union card 29 when a lot of junk, and there was no gthey would promise us Herbst drove him home. Mitchell testified that in the car, a lot of junk, and there was no guarantee that they Herbst asked him, "[W]hat do you think about the would make a contract with the Company. Herbst Herbst asked him, "[W]hat do you think about the diwould not say it was cont witional the Company. Herbst Union?" Mitchell stated that Herbst went on to say that andid no t s ay i t was c onditional that terms; he Company the Union was no good, that he, Mitchell, got four raises saying there would never be any agreement be- a year and that if a union came in he would have to get tween the Company and the Union. Herbst said the what the Union said. When he was asked if anything else employees were already getting enough benefits be- was said, or if voting was discussed during this conversa- tion, Mitchell testified that the above was all that was cause of the Company. He was going to advise the employee to vote no. Herbst said because he didn't said. At this point, the General Counsel showed Mitchell want to change the nrelationship between the dC'm- his pretrial affidavit to refresh his recollection, where- upon Mitchell testified; "He said to me after the Union panythere wouland the a changemployees but ifin the relationship. t I'll lose people. Those lazy guys inside the shop won't there would be a change in the relationship want to work." Mitchell went on to explain that Herbst want to work." Mitchell went on to explain that Herbst Herbst denied that he ever told any employee that he said that "he's going to fire those guys, the lazy guys in would close the plant if the Union came in or that he would never agree to a contract with the Union. Based 27 The General Counsel does not allege Perry's discharge as being un- lawful. on Jamison's testimony and comparing it with his pretrial 2 Philip Perry signed a union card on April 27. affidavit, it is clear to me that I must credit Herbst. It is 2, Mitchell signed a union card on April 29, 1979 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the shop." Apparently not satisfied with this answer, the Mitchell's testimony covered three relatively simple General Counsel had Mitchell again read from his affida- transactions, but his testimony, in large measure, could vit, after which Mitchell testified; "He said the people, if not be obtained without using his pretrial affidavit to re- they vote, those guys, if the people vote for the Union, fresh his recollection or through the use of leading ques- he's going to get them fired." To end Mitchell's testimo- tions. Moreover, in certain respects, his affidavit contra- ny on this first conversation, the General Counsel asked; dicted his testimony, and his testimony on cross-examina- "Did Herbst ask you who you intended to vote for?" tion was inconsistent with what he said on direct exami- Mitchell's response was, "He asked me once and I told nation. Therefore given the choice between Mitchell's him that I reserved my opinion." testimony and Herbst's testimony, I am going to credit Having concluded his testimony as to the first conver- the latter. sation with Herbst, Mitchell testified that he had a Employee Conroy Morgan testified that shortly after a second conversation with Herbst. In this conversation, meeting held by the Company to discuss the Union, Mitchell asserts that, "he said to me, who am I going to which he places on April 26, and after he signed a union vote for and that the Union is no good, and that he card,30 he and Hurelyon McLean went to work together knows who I'm going to vote for." Mitchell stated that and when they reached the gate, spoke to Franklyn he told Herbst that he reserved his opinion and did not Western while Gerald Davis was standing at the front know who he was going to vote for, although he did tell door He stated that as he and McLean went into the Herbst that he did not like what was going on in the shop with "everybody against one another." Mitchell factory past Davis the latter said, "hope you guys didn't testified that Herbst asked if he was talking about Pinto change your mind after the meeting last night." Morgan and stated that he was "going to get rid of Tom Pinto, also testified that later that day, at the break, as he and cause probably Tom is the ringleader for the Union." McLean went outside, Davis said, "[W]hat do you guys Mitchell placed this second conversation about 3 or 4 think about the Union?" weeks after he signed a union card. With respect to the above, Davis testified that a few The third conversation Mitchell said he had with days before Morgan was laid off he overheard Morgan Herbst is essentially irrelevant to this proceeding and tell McLean that there was no need for a union and that need not be discussed. He did, however, state that he McLean agreed. Davis was not, however, asked by Re- had a conversation with Gerald Davis who said that if spondent's counsel to deny and did not deny that he in- the Union came in he, Mitchell, would only get one raise terrogated Morgan and McLean, notwithstanding the a year. fact that he was asked to and did deny other specific al- Initially pointed out on cross-examination was that legations. On balance, I shall credit Morgan's testimony Mitchell was confusing the first conversation with the regarding the incidents described by him and conclude second, asserting that the first occurred in Herbst's office that when Davis interrogated him and McLean as to whereas the second was in the car. Also on cross-exami- what they thought of the Union, Respondent violated nation, Mitchell had this to say about the subject of Section 8(a)(1) of the Act. 31 raises: J. The Voting Line Incident Q. Did he say, if the Union comes in, and we agree to a contract with one raise a year, that's all In its Objection 6, the Union alleges, in substance, that the raises that he would give to people, including during the election Supervisor Davis spoke to various you? people who were on the voting line waiting to vote. In A. He said if the Union came in, he just can give this regard the testimony of Nydia Ortiz and Thomas me one raise because he has to go for what the Pinto was offered to substantiate this allegation. Union says. Pinto testified that Davis came over to the voting line, Q. He has to go for what the Union and he called employee Al Reynolds upstairs, and spoke to him agrees to. Is that what he said? but that he did not hear what was said. He also stated A. Right. that he then asked Davis what he was doing at the voting line and that he told Davis that one of the people It also is noted that Mitchell conceded that his pretrial on line to vote was not eligible because he had quit. As affidavit made no mention of any conversation with to this transaction, Nydia Ortiz testified that when Davis Davis. came out of the office, he went up the stairs and waved In relation to the above, Herbst testified that on one to some people to go up to him. She stated that she occasion he drove Mitchell home and that during the heard Al Reynolds say he did not want to vote either for drive Mitchell said that he was pleased with the raises he the Union or the Company; whereupon, Davis said, "Al received and was not interested in the Union. Herbst get out there and vote, your vote will help us." stated that he told Mitchell that he was counting on him and to convey his thoughts to the other people in the S Morgan signed a union card on April 26, 1979. factory. He denied, however, that he asked Mitchell how 3" If, however, the General Counsel is relying on Morgan's testimony he was going to vote. Herbst further stated that during to support the allegation of surveillance, this contention is rejected. I do this ride he told Mitchell that he was aware that Pinto not conclude from the fact that Davis was standing at the entrance of the factory in the morning as employees came to work that this is sufficient was prounion, but denied that he said that he was going to prove that Respondent engaged iu surveillance of the employee's to fire Pinto for his union activity. meetings and activities with the Union. AMERICAN DISPLAY MFG. CO., INC. 31 Davis testified that at the time of the election he spent lishes that he received warnings about this subject matter most of his time in the main production area away from prior to his discharge. There is also no dispute that the election area, but that on one or two occasions he Herbst had tolerated Pinto's absences in the past because, did pass by the voting line on his way to and from the as he put it, Pinto was a very talented sample maker. office. He testified that he did not, at any time during the The question then is why was Pinto's absentee record in election, converse with any employees at the voting line. this period, November and December, different from all Assuming, arguendo, that I accept Ortiz' version of other periods of time? this transaction, I am not inclined to view Davis' state- As noted above, Pinto's job was crucial to Respond- ment to Reynolds as the type of last minute electioneer- ent's operations because without his creation of samples ing prohibited under the Board cases. At most, the evi- the customers could not approve the orders and produc- dence herein establishes that as Davis walked past the tion could not commence. Therefore, to say that other voting area, Reynolds made a statement to the effect that employees, such as Francine Davis, with equal rates of he did not want to vote, whereupon Davis called him up absenteeism were not discharged and thereby argue dis- the stairs and told him that he should vote because "your parate treatment, is to miss the point.3 3 Except for Re- vote will help us." It is my opinion that this inconse- spondent's management and supervisory staff, the evi- quential response to Reynold's statement cannot be con- dence herein establishes that no other employee was as strued as affecting the laboratory conditions of the elec- critical to Respondent's operations as was Pinto and that tion. Cumberland Nursing & Convalescent Center, 248 no other employees' absence would be as sorely missed. NLRB 322 (1980); Princeton Refinery, Inc., 244 NLRB I The evidence establishes that during the period from (1979). about October through December, a substantial amount of sample making was required and that Gerald Davis was also assigned to do some of this work along with Pinto was discharged on December 18, 1979. The Pinto. Pinto conceded that Herbst and Harris were com- General Counsel contends that Pinto was a leading advo- plaining to him about samples not being finished on time cate for the Union, whose activities motivated Respond- and he further stated that when he was asked to work ent to discharge him. As to this point, the evidence overtime to complete his work he refused to do so. The herein does indicate that after the initial organizational testimony of Pinto and French establishes that Pinto was period, Pinto was vocal in support of the Union and that assigned to make the samples for orders obtained by his sympathies were known to Respondent. However, French and that because they were not completed on the timing of his discharge, about 6 months after the time French quit the Company's employ because this ad- election, is not, in my opinion, particularly favorable to versely impacted on his sales and commissions. Thus, ac- the General Counsel's theory that he was unlawfully ter- cording to the General Counsel's own witnesses, Pinto's minated. inability to complete samples, no doubt caused at least in The parties agree that at the discharge interview Pinto part hy his absences from work and his refusal to work was told that he was being discharged for excessive ab- overtime, resulted in the loss of French as an employee senteeism, and it is Respondent's contention that this of the Company. was, in fact, the reason which motivated its action. More As noted previously, Riviera was the largest single particularly, Respondent asserts that although it may customer of Respondent, generating between 40 to 60 have tolerated a relatively high degree of absenteeism by percent of the Company's business. Cathy Kostialik, an other employees and even by Pinto in the past, it became employee of Riviera was subpenaed as a witness by Re- apparent that during the months of November and De- spondent. Kostialik testified that an order given to Re- cember 1979 Pinto's absences not only were excessive, spondent in October was delayed because of Respond- but were seriously impeding production and the oper- ent's inability to furnish the sample on time. As to this ations of the Company because of his position as the sample, she explained that her boss, Baum, got very samplemaker. Moreover, Herbst testified that Pinto's pat- upset over the delay. She also stated that in the begin- tern of absences during this period of time, when it was ning of November another order was placed which re- known that customers were demanding their samples, quired a sample and that the delay on Respondent's part was of such a nature as to convince him that Pinto was in delivering the sample generated a series of telephone intentionally sabotaging the Company's operations. conversations between herself and Herbst. In this re- There is, in fact, no dispute that Pinto had an exceed- spect, Kostialik testified that she kept asking Herbst why ingly poor record of attendance3 2 and the evidence estab- the sample was not delivered and that he kept telling her that the delay was caused by the samplemaker. She " The evidence discloses that Pinto's attendance during November and stated that she expected delivery of this particular sample December 1979 was as follows: by the beginning of December but that it was not deliv- Week Ending Hours Worked Per Week ered until December 17. As to yet another order, Kostia- 11/07 39 lik testified that when the sample was not promptly de- 11/14 32 livered she had a series of phone calls with Herbst who 11/21 31-1/4 11/28 36-1/2 12/12 16-3/4 12/19 28-3/4 12/05 32 In fact, Pinto conceded that some employees who had excessive ab- sences were discharged by Respondent. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD again explained that the delay resulted from the sample- count. Having done so, it nevertheless seems to me that maker's inability to complete the project. According to the statements he concedely made raise a substantial Kostialik, there came a point in November or December issue. Thus, by his own account he told the employees, when she threatened Herbst with the withdrawal of Riv- in essence, that if the Union came in and caused a strike iera's business. the Company might not be able to make timely deliv- Regarding the decision to discharge Pinto, Herbst tes- eries, might therefore lose the Riviera account and there- tified that although he considered him to be a very tal- by result in the possible loss of jobs; that if the Union ented samplemaker, and although he was aware that won the election, it could only force him to bargain with Pinto had to go to a medical clinic once a month, 34 the the Union but could not require him to accede the situation with Riviera had gotten so critical that it "was Union's "ridiculous" demands; that there was no way the an intolerable situation," and that he could not continue Company would be able to stay in existence by giving to employ Pinto if he was not available to do his job. the Union the kinds of raises the Union had promised; ANALYSIS and that the former company which dealt with Riviera had closed down as a result of a strike and that all of its A. The Alleged Unfair Labor Practices employees had been dismissed. Given the nature of the above remarks, it is not sur- In the foregoing sections I have already made a number of conclusions which are as follows: prising to me that certain employees interpreted them as i. That at the second meeting in May, Respondent, by statements that the Company would close if the Union Edward Herbst, violated Section 8(a)(l) of the Act by was elected, despite my belief that such statements, in suggesting the formation of an employee committee haec verba, were not made and the remarks were which would bargain directly with the Company over couched in the language of economic predictions. In dis- wages and other terms and conditions of employment. cussing the legal consequences of statements similar to 2. That Respondent, by Gerald Davis, interrogated its this, the Supreme Court recognized that the line between employees concerning their feelings about the Union. permissable and coercive statements is not always sharp- 3. That by obtaining a health insurance plan for its em- ly defined. In N.L.R.B. v. Gissel Packing Co., Inc., et al., ployees and announcing its implementation, Respondent 395 U.S. 575 (1969), the Court stated: did not violate the Act. 4. That apart from the interrogation described above Petitioner argues that the line between so-called in paragraph 2, Respondent's agents did not interrogate permitted predictions and proscribed threats is too other employees. vague to stand up under traditional first amendment 5. That Respondent's agents did not promise new analysis and that the Board's discretion to curtail benefits to employees Jose Toro and Douglas Jamison. free speech rights is correspondingly too uncon- 6. That Respondent's agents did not tell Douglas Ja- trolled. It is true that a reviewing court must recog- mison that the plant would close down if the Union was nize the Board's competence in the first instance to elected to represent its employees or that the Company judge the impact of utterances made in the context would not bargain with the Union if elected. of the employer-employee relationship, see 7. That Respondent's agents did not offer loans or N.L.R.B. v. Virginia Electric & Power Co., 314 U.S. other benefits to Phillip Perry in order to influence his 469, 479 (1941). But an employer, who has control vote. ever that relationship and therefore knows it best, 8. That Respondent's agents did not, in discussions cannot be heard to complain that he is without an with employee Roy Mitchell, threaten Mitchell with loss adequate guide for his behavior. He can easily make of benefits, threaten to discharge its employees who sup- his views known without engaging in "brinkman- ported the Union, or interrogate Mitchell about his feel- ship" when it becomes all too easy to "overstep and ings for the Union. tumble into [over] the brink," Wausau Steel Corp. v. 9. That Respondent's agents did not, in conversations NL.R.B. 337 F.2d 369 372 (7th Cir. 1967). At the with Thomas Pinto in April, threaten to discharge its least he can avoid coercive speech simply by avoid- employees because of their union activities or threaten ing conscious overs Pinto with the loscious of bverstatements he has reason to be- 10. That Respondent's agents did not engage in sur- lieve will mislead his employees. veillance or create the impression that they were en- It is my opinion that the remarks admittedly made by gaged in the surveillance of its employees' union activi- ties. Herbst at this meeting overstepped the line of permissa- With respect to the first meeting held in the shop on ble free speech and crossed into the prohibited area of or about April 29 or 30, I have credited Herbst's ac- coercive threats. Notwithstanding his description of the Union's demands as being "ridiculous" and his assertion :4 Herbst also testified that Pinto may have been given permission to that the Company could not stay in business if it agreed go to the dentist on 2 or 3 days during the week preceding his discharge, to the kinds of raises the Union had promised to the em- but that he understood that Pinto would come into work after his dental ployees, there can be no evidence justifying the assertion appointments and not stay home as he did. He testified that at the dis- that the Union's demands were "ridiculous" inasmuch as charge interview when Pinto offered his dental problems as an excuse for his absences, he told Pinto that if he was so sick the Company could not no demands had been made. In N.L.R.B. v. Gissel Pack- have him on the job. ing Co., supra, the Court concluded: AMERICAN DISPLAY MFG. CO., INC. 33 Equally valid was the finding by the court and Arnold Thompson were selected for layoffs, as they the Board that petitioner's statements and communi- clearly were the least senior employees. cations were not cast as a prediction of "demonstra- With respect to Joann Luquis, her selection for layoff ble 'economic consequences,"' 397 F.2d, at 160, but while not based on seniority factors was also reasonable rather as a threat of retaliatory action. The Board in my opinion. As noted above, she had previously given found that petitioner's speeches, pamphlets, leaflets, notice of her intention of quitting. As such, it clearly and letters conveyed the following message: that made sense for the Company to include her among those the company was in a precarious financial condi- to be laid off so that an employee who otherwise would tion; that the "strike-happy" union would in all like- have been let go could be kept employed. The fact that lihood have to obtain its potentially unreasonable the Company had earlier agreed to her desire to delay demands by striking, the probable result of which her quitting to the end of May is not viewed as particu- would be a plant shutdown, as the past history of larly relevant, and given the circumstances it was reason- labor relations in the area indicated; and that the able for Respondent to change its mind and to include employees in such case would have great difficulty her among the individuals to be laid off. finding employment elsewhere. In carrying out its It also is concluded that the selection of Julio Nieves duty to focus on the question: "[W]hat did the for the May 11 layoff was the result of a mistake and not speaker intend and the listener understand?" A. the result of discriminatory intent. As established by the Cox, Law and the National Labor Policy 44 (1960), evidence, he was originally selected for layoff on the as- the Board could reasonably conclude that the in- sumption that he was one of the people with least senior- tended and understood import of that message was ity. When Davis realized that Nieves had slightly greater not to predict that unionization would inevitably seniority than another employee, Philip Perry, he decid- cause the plant to close but to threaten to throw ed to let his mistaken decision stand rather than recall employees out of work regardless of the economic Nieves and lay off Perry. While unfortunate for Nieves realities. In this connection, we need go no further and fortunate for Perry, I do not see evidence of dis- than to point out (1) that petitioner had no support criminatory intent in this transaction. for its basic assumption that the union, which had It is finally concluded, insofar as the layoffs of May not yet even presented any demands, would have to not yet even presented hany demands, woulda have to 11, that these were intended as permanent rather than strike to be heard, and that it admitted at the hear- ingk that it had no basis for attributing other plant temporary layoffs. In this regard, I credit the testimony closingsthat in thear o usiom at ind thaof Davis to the effect that he did not tell these employ- closings in the area to unionism; and (2) that the Boad h f, wees that they would be recalled and that it was normal Board has often found that employees, who are par- ticularly sensitive to rumors of plant closings, take company policy not to recall lad-off employees. The such. hints. as, c e t t r r fact that these individuals were offered reinstatement in sorecasts. as coercive treats rater tan onest August does not change my opinion, because it is clear that these offers were made after unfair labor practice Concerning the layoffs on May I 11, it is concluded that charges had been filed and no doubt were intended to the General Counsel has not proven by a preponderance limit Respondent's potential liability. of the evidence that these layoffs were motivated by il- In Pinto's case, it is concluded that he was discharged legal considerations. for cause and not because of his union or concerted ac- Notwithstanding the fact that these layoffs occurred tivities. In this respect, it was amply demonstrated that shortly after the petition for the election was filed and at Pinto, during the months of November and December, a time when Respondent was aware of the Union's orga- had a record of excessive absenteeism which created sub- nizational campaign and was taking steps to counter that stantial problems for the Company, including the quitting campaign, it also was established that at the same time of salesman Leonard French who was not earning the Company had been directed by a customer to defer enough because Pinto was not making his samples. It production and delivery of its largest inhouse order. also was established that although Pinto's absenteeism It is my opinion that the deferral of this order, which had been tolerated in the past because of his talent as a deferral came about contrary to Respondent's wishes, ne- samplemaker, his absences during this period of time re- cessitated the layoff of some employees. Given this cir- suited in the failure to make timely delivery of samples cumstance, which was beyond the control of the Compa- to Riviera, Respondent's largest customer. This, in turn, ny, it therefore was not unreasonable for Respondent to generated a series of telephone calls between Respondent lay off a number of employees, as extra employees had and Riviera wherein the latter threatened to withdraw its originally been hired to deal with the additional work business unless it could get delivery of the samples on this order created. It also was reasonable for the selec- time. tion of those employees to be laid off to be done basical- In light of the above and given the fact that during the ly on a seniority basis so that the last hired would be the last week prior to his discharge Pinto was absent for 3 first laid off. This then would explain the reason why days, Respondent decided that it no longer could tolerate Janet Perry, Conroy Morgan, Hurelyon McLean, and Pinto's absences and discharged him. In my opinion, Pinto's absences were the sole reason for his discharge * See also Buckeye Tempo Gamble-Skogmo. Inc., 240 NLRB 723, 725 (1979); Turner Shoe Company. Inc. and Carmen Athletic Industries. Inc., and I reject the contention that this was a pretext to hide 249 NLRB 144 (1980). a discriminatory motivation for his termination. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Challenged Ballots In the present case, the evidence establishes that by May 7 when the Union filed its petition for an election it Havdiscriminatg c onluded thivated, and t he layoffs on May 11 were not had obtained valid authorization cards from 33 of the 47 thdiscriminatorily motivated, and having also recommncluded bargaining unit employees.3 6 Moreover, even if I were to that they were permanent in nature. it is recommended conclude that Janet and Philip Perry, McLean Thomp- that the challenges to the ballots of Joann Luquis, Janet conclude that Janet and Philip Perry, McLean, Thomp- Perry, Conroy Morgan, and Arnold Thompson be son, and Morgan were not bargaining unit employees be- Perry, Conroy Morgan, and Arnold Thompson be sus- tained. cause they were, as contended by Respondent, tempo- rary hires, it still would be evident that by May 1 or 7 a Insofar as the challenge to the ballot of Francine Davis is concerned, it is recommended that this chal- majority of the bargaining unit employees had designated eredthat the Union as their collective-bargaining representative. 37 lenge be overruled. The evidence herein discloses that Therefore, if it is concluded that the unfair labor prac- she was one of the factory workers and no evidence was presented which would warrant the conclusion that she tices committed by Respondent put this case into the was a supervisor or that she was otherwise an ineligible second category set out by the Supreme Court, the pre- condition that the Union must have had majority support at some relevant time, has been met. C. The Objections The final question is whether in the circumstances of this case, the Employer's unfair labor practices are, in It is my conclusion, noted above, that after the petition the aggregate, sufficient to warrant the granting of a bar- was filed and before the election, Respondent, by Herbst, gaining order. Based on the case precedent, it seems to at a meeting of all the employees, urged them to form a me that this question must be answered in the affirma- committee for the purpose of negotiating directly with tive. In N.L.R.B. v. Gissel Packing Co., supra, it is noted Respondent regarding wages and other terms and condi- that four cases were consolidated for argument, one of tions of employment. In view of my conclusion that such which, The Sinclair Co. v. N.L.R.B., 397 F.2d 157 (Ist conduct violated Section 8(a)(!) of the Act, I recom- Cir. 1968), involved facts remarkably similar to the facts mend that Objection I be sustained. As it is my opinion of the instant case. Thus, in Sinclair, the court concluded that these statements made during the pendency of the that a bargaining order was required where the Compa- election are sufficient to upset the laboratory conditions, it is recommended that the election be set aside. Dal-Tex ny, during the pendency of an election, made statements 137 NLRB 1782, 1786 (1962). in speeches and pamphlets implying that the selection of the union would result in plant closure. Iv. THE REMEDY In the case at bar, I have concluded that at a meeting with virtually all of its employees present, Respondent The General Counsel contends that a bargaining order on or about April 29 or 30 made statements implying should be granted herein even if a majority of the bar- that the selection of the Union would lead to strikes and gaining unit employees have not voted for the Union. the closing of the plant. I have also concluded that after The Supreme Court in N.L.R.B. v. Gissel Packing Co., the petition was filed, Respondent told all the employees Inc., supra, distinguished between three categories of that if they formed a committee, the Company would cases insofar as the propriety of granting bargaining bargain directly with them over wages and other terms orders. The first category involves the "exceptional" and conditions of employment. In effect, the statements cases where "outrageous" and "pervasive" unfair labor made by Herbst on both occasions are tantamount to practices are committed. The second category concerns holding out a carrot while at the same time wielding a "less pervasive practices" that have a tendency to under- stick. It seems to me that such statements to employees mine majority strength and impede the election process. are of the type which would impose a substantial impedi- In this category of cases, the Court concluded that a bar- ment to the holding of a fair and free election and that gaining order would be appropriate to remedy an em- their lingering effects would impact adversely on the ployer's unlawful conduct making a fair election unlikely holding of a fair rerun election. N.L.R.B. v. International where at some point, the Union had majority support Metal Specialties Inc., 433 F.2d 870 (2d Cir. 1970). Ac- among the employees. The third category of cases con- cordingly, it is my opinion that a bargaining order is re- cerns those in which minor or less intensive unfair labor quired to remedy the unfair labor practices found practices have been committed, having a "minimal herein." Further as I have concluded that Respondent impact" on an election. In this last category, the Court held that a bargaining order is inappropriate to remedy 3s By the same token, it is established that as of May 1, when the the violations committed even if the Union enjoyed ma- Union unsuccessfully attempted to demand recognition, the Union had jority support. obtained authorization cards from 31 of the 47 unit employees. Also in cases where an election has been held, a neces- " Even if I did not count these employees as part of the bargaining sary precondition to the granting of a bargaining order is unit, the Union, by May i, would have obtained majority support be- cause it would have obtained cards from 26 of 42 employees. that the election be set aside because of conduct interfer- " Although it is concluded that a bargaining order is required. I ing with the conduct of the election. Irving Air Chute cannot conclude that Respondent violated Sec. 8(aX5) of the Act because Company, Inc., Marathon Division, 149 NLRB 627 (1964); this record fails to establish that the Union, at any time, made an effec- The Great Atlantic & Pacific Tea Company, Inc., 230 tive demand for recognition which was received by the Company. In this respect, the filing of a petition for election does not constitute a proper NLRB 766 (1977). In the instant case this precondition demand for bargaining. The Great Atlantic a Pacific Tea Company Inc., has been met because I have sustained Objection 1. 230 NLRB 766, fn. I (1977). AMERICAN DISPLAY MFG. CO., INC. 35 commenced its illegal campaign on April 29 or 30, 1979, Upon the foregoing findings of fact, conclusions of and as the Union obtained majority status no later than law, and the entire record, and pursuant to Section 10(c) May 1, I shall recommend that a bargaining order be ret- of the Act, I hereby issue the following recommended: roactive to the latter date.3 9 Finally, in view of the fact that the results of the elec- ORDER 42 tion are at this time still undetermined, I shall recom- The Respondent, American Display Manufacturing mend that the ballots of Thomas Pinto and Francine Co., Inc., Queens, New York, its officers, agents, succes- Davis be opened and counted and that if the Union sors, and assigns, shall: should win the election after a revised tally of ballots is 1. Cease and desist from: issued, then a certification of representative should issue. (a) Coercively interrogating employees concerning If, however, the Union should lose the election based on their union sympathies. the revised tally of ballots, the election should be set (b) Threatening to close its factory if the employees aside and the bargaining order alone should take effect.4 0 select the Union as their collective-bargaining agent. Based on the above findings of fact and upon the (c) Suggesting to employees that they form a commit- entire record in this case, 4' I make the following: tee to bargain directly with Respondent regarding wages and other terms and conditions of employment. CONCLUSIONS OF LAW (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights 1. American Display Manufacturing Co., Inc., is an guaranteed them by Section 7 of the Act. employer engaged in commerce within the meaning of 2. Take the following affirmative action necessary to Section 2(2), (6), and (7) of the Act. effectuate the policies of the Act: 2. Amalgamated Service and Allied Industries Joint (a) Recognize, effective from the date beginning May Board, Amalgamated Clothing and Textile Workers 1, 1979, and, upon request, bargain collectively with the Union, AFL-CIO, is a labor organization within the Union as the exclusive collective-bargaining representa- meaning of Section 2(5) of the Act. tive of all employees in the appropriate unit, with respect 3. Respondent, by interrogating its employees regard- to rates of pay, wages, hours, and other terms and condi- ing their sympathies for the Union, violated Section tions of employment and, if an understanding is reached, 8(a)(1) of the Act. embody such understanding in a signed agreement. The 4. Respondent, by threatening employees with plant appropriate bargaining unit is: closure if the Union were to be selected as their bargain- All production and maintenance employees, includ- ing representative, violated Section 8(a)(l) of the Act. ing shipping and receiving employees, but excluding 5. Respondent, by urging its employees to form a comn- all salesmen, professional employees, office clerical mittee for the purpose of bargaining directly with it over employees, guards and supervisors as defined in the wages and other terms and conditions of employment, Act. violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce (b) Post at its place of business in Queens, New York, within the meaning of Section 2(6) and (7) of the Act. copies of the attached notice marked "Appendix." 43 7. To remedy the unfair labor practices found herein, Copies of said notice, on forms provided by the Regional Respondent shall be ordered to bargain, upon request, Director for Region 29, after being duly signed by Re- with the Union in the appropriate collective-bargaining spondent's representative, shall be posted by Respondent unit as set forth in the Order. immediately upon receipt thereof, and be maintained by 8. In Case 29-RC-4578, the challenged ballots of it for 60 consecutive days thereafter, in conspicuous Thomas Pinto and Francine Davis shall be opened and places, including all places where notices to employees counted, whereas the challenges to the ballots of Janet are customarily posted. Reasonable steps shall be taken Perry, Hurelyon McLean, Arnold Thompson, Joann by Respondent to insure that said notices are not altered, Luquis, and Juan Alicea shall be sustained. Therefore a defaced, or covered by any other material. revised tally of ballots shall issue and if the Union ob- (c) Notify the Regional Director for Region 29, in tains a majority of the valid votes counted, a certification writing, within 20 days from the date of this Order, what of representative shall issue. steps Respondent has taken to comply herewith."44 9. In Case 29-RC-4n78, the facts reveal that Respond- 9. In Case 29-RC-4578, the facts reveal that Respond- " In the event no exceptions are filed as provided by Sec. 102.46 of ent engaged in objectionable conduct as averred in Ob- the Rules and Regulations of the National Labor Relations Board, the jection I and accordingly, the election should be set findings, conclusions. and recommended Order herein shall, as provided aside in the event the Union does not win the election 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 after a revised tally of ballots is issued. shall be deemed waived for all nd Order, and al objections thereto 10. Except to the extent heretofore found, the other al- " In the event that this Order is enforced by a Judgment of a United legations of the complaint are dismissed and the other States Court of Appeals, the words in the notice reading "Posted by objections are overruled. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 'a The Great Atlantic & Pacific Tea Company. Inc.. supra. " In the event that this Recommended Order is adopted by the Board, Id. this provision shall be modified to read: Notify the Regional Director for " Certain errors in the transcript are hereby noted and corrected. Continued 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be dis- McLean, Arnold Thompson, Joann Luquis, and Juan missed insofar as it alleges violations not specifically Alicea be sustained, and that the ballots of Thomas Pinto found herein. and Francine Davis be opened and counted whereupon a IT IS FURTHER ORDERED that the petition in Case 29- revised tally of ballots shall be issued. In the event, how- RC-4578 be remanded to the Regional Director, that the ever, that a majority of the valid votes counted is not challenges to the ballots of Janet Perry, Hurelyon cast for the Union, the election is set aside, the bargain- ing order heretofore granted shall be in effect and the Region 29, in writing, within 10 days from the date of this order, what petition in Case 29-RC-4578 shall be dismissed. steps Respondent has taken to comply herewith.