Diamond Walnut Growers

36 316 NLRB No. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Charging Party Union filed a motion to strike certain por- tions of the Respondent’s brief in support of its limited exceptions which, according to the Charging Party, are beyond the scope of its limited exceptions. In light of our holdings here, we deny the Charg- ing Party’s motion. 2 The first election in this case was set aside by the Regional Di- rector by order dated September 17, 1993. The procedural history of the first election is set forth in fn. 3 of the judge’s decision. The second election at issue here resulted in an initial tally show- ing 310 for and 195 against the Union, with 635 determinative chal- lenged ballots. Thereafter, in proceedings which involved two sepa- rate decisions by the Regional Director resolving the challenged bal- lots and the denial by the Board of requests for review filed by the Union and the Respondent to the Regional Director’s first decision on challenges, a final revised tally was issued showing 475 for and 575 against the Union. As to the objections filed by the Union to the second election, the Regional Director ordered Objections 2, 4, 8, and 11 consolidated with the complaint allegations for hearing before the judge, and overruled all remaining objections, including Objections 5 and 17. The Board, thereafter, granted the Union’s request for review of the Regional Director’s overruling of Objections 5 and 17. We discuss these two objections, infra, at fn. 15. The Union has requested oral argument with respect to the issues raised by Objection 17. The request is denied as the record, excep- tions, and briefs adequately present the issues and the positions of the parties. 3 No exceptions were filed to the judge’s overruling of the Union’s Objections 2, 4, and 8 and these findings are adopted pro forma. Similarly, no exceptions were filed to the judge’s failure to find that the Respondent violated the Act by delaying the reinstatement of strikers Shaw and Rosas or by condoning a physical attack by an employee on Union Organizer Macchello, and we adopt those find- ings pro forma. 4 137 NLRB 1782 (1962). 5 All dates hereinafter are in 1993 unless otherwise stated. Diamond Walnut Growers, Inc. and Cannery Workers, Processors, Warehousemen & Help- ers, Local 601, International Brotherhood of Teamsters, AFL–CIO. Cases 32–CA–13479 and 32–RC–3553 January 20, 1995 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION BY CHAIRMAN GOULD AND MEMBERS BROWNING AND TRUESDALE On June 21, 1994, Administrative Law Judge Mi- chael D. Stevenson issued the attached decision. The General Counsel and the Charging Party filed excep- tions and supporting briefs, and the Respondent filed limited exceptions and a supporting brief.1 The Re- spondent and the Charging Party filed answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions only to the extent consistent with this Deci- sion and Order. This case involves a second representation election,2 which was held during an economic strike, and allega- tions that the Respondent engaged in objectionable conduct and committed various acts in violation of Section 8(a)(3) and (1) of the Act in the weeks leading up to the election which the Union lost. The judge dis- missed the 8(a)(3) and (1) complaint allegations and overruled all election objections which were consoli- dated for hearing with the complaint.3 We reverse the judge and find that the Respondent violated the Act by its discriminatory treatment of three economic strikers in reinstating them to work just prior to the election. We further find that these violations, which encom- passed the Union’s Objection 11, warrant application of our usual policy, set out in Dal-Tex Optical Co.,4 of directing a new election when, as here, the unfair labor practices were committed during the critical pe- riod. The Respondent operates a seasonal business receiv- ing, processing, and marketing walnuts at its facilities in Stockton, California, where the Union has rep- resented the employees for a number of years. The work force consists of regular year-round employees, supplemented by seasonal hires during the Respond- ent’s peak season in September and October. On September 4, 1991, 2 months after the expiration of the parties’ most recent collective-bargaining agree- ment, the Union commenced an economic strike which, at the time of the events at issue here, was still in progress. The Respondent continued operations by hiring both year-round and seasonal permanent re- placement employees. On September 17, 1993,5 the Regional Director di- rected the instant second election be held on October 7 and 8. By letter dated September 20, the Union in- formed the Respondent that ‘‘[s]everal of the strikers share the Union’s conviction . . . that a fair election is simply impossible at this point. Nevertheless, be- cause a rerun election is to be held, these employees feel that it is important that the replacement workers . . . have an opportunity to hear from Union sym- pathizers.’’ Accordingly, the Union requested in its let- ter that four named economic strikers, including Willa Miller, be returned to work unconditionally. The next day the Union notified the Respondent that strikers Alfonsina Munoz and Mohammed Kussair also desired to return to work unconditionally. The Respondent replied that all year-round em- ployee positions were currently filled by permanent re- placements and that seasonal positions were the only jobs available. Miller, Munoz, and Kussair, each of whom held year-round jobs before the strike, agreed to accept the seasonal jobs. 37 DIAMOND WALNUT GROWERS 6 304 NLRB 1076 (1991). 7 389 U.S. 375 (1967). 8 We note that the judge’s description of the Supreme Court’s holding in Fleetwood is not entirely correct, but, in light of our hold- ing below, we find no need to correct his error. 9 We express no opinion in this case on the Board’s finding in Rose Printing that an employer has no obligation to reinstate strikers to available jobs that are not substantially equivalent to their prestrike positions. Miller was assigned as a casepacker in the Respond- ent’s ‘‘cello’’ department, where she packed bags of walnuts into cartons for later shipment. Prior to the strike, Miller worked in the quality control department overseeing the work of ‘‘quality control assistants.’’ At the time she applied for reinstatement, there were sev- eral quality control assistant openings which paid a higher hourly wage than the casepacker position to which she was assigned. Munoz and Kussair were both assigned jobs as ‘‘crackers’’ in the growers inspection department where they cracked open walnuts for the purpose of determining the quality and price to be paid growers for their crop. Prior to the strike, Munoz was a lift truck operator and Kussair operated an air separator machine which vacuumed walnut shells and other de- bris off the walnut meats. Although both of these year- round positions were held by permanent replacements, seasonal positions as lift truckdriver and loader were available and paid more than the jobs which Munoz and Kussair were given. In the first 2 weeks of his employment as a cracker, Kussair received from his supervisor, Lexie Whiteman, three separate oral warnings for not meeting a daily production quota of 17,000 grams of cracked walnuts. Whiteman testified that after she gave Kussair the third warning he became ‘‘very angry. He got into . . . in my face and was hollering.’’ Whiteman reported the incident to Vince Brown, the director of human re- sources, who issued Kussair a written reprimand on October 1 for insubordination and inadequate produc- tion. Thereafter, Kussair requested a transfer to a load- er position and the Respondent agreed; but, on October 7, the day before the transfer was to take place, Kussair left his job and went back on strike. The second election was held as scheduled on Octo- ber 7 and 8 at the Respondent’s facility and at a neu- tral off-site location for striking voters. After casting their ballots, Miller and Munoz left their jobs and, like Kussair, rejoined the strike. The judge’s decision The judge found that the controlling rule of law with respect to the issue in this case was stated by the Board in Rose Printing Co.:6 [A]n employer’s obligation to reinstate former economic strikers extends only to vacancies cre- ated by the departure of replacements from the strikers’ former jobs and to vacancies in substan- tially equivalent jobs, but not to any other job which a former striker is or may be qualified to perform. Applying these principles, the judge found that Miller, Munoz, and Kussair were qualified for the positions of quality control assistant, lift truckdriver, and loader, re- spectively, but because those positions were all sea- sonal jobs lasting only 8 to 10 weeks, the judge found that the positions were not substantially equivalent to the strikers’ former jobs which were regular year-round positions. Accordingly, the judge concluded that under the above-stated principle of Rose Printing the General Counsel had failed to establish a prima facie case that the three strikers were discriminatorily denied those positions because he found that the seasonal jobs avail- able were not substantially equivalent to their prestrike jobs and thus they were not entitled to the seasonal jobs. On this basis, the judge recommended that the complaint be dismissed. The judge, however, made a further finding that if the Board rejected his finding and concluded that the General Counsel has established a prima facie case of discrimination against the returning strikers, then he would find that the Respondent violated Section 8(a)(3) and (1) of the Act because the Respondent failed to establish legitimate and substantial business justifications for placing the returning strikers in the jobs to which they were assigned. He based this alter- native finding on the Supreme Court’s decision in NLRB v. Fleetwood Trailer Co.,7 which held that an employer’s refusal to reinstate economic strikers after a strike violates Section 8(a)(3) and (1) unless it can be shown that the refusal was for ‘‘legitimate and sub- stantial business justifications.’’8 Discussion We find that the judge erroneously based his dismis- sal of the complaint on a theory which was neither al- leged nor argued by the General Counsel. The General Counsel conceded in the complaint, as well as before the judge, that the seasonal jobs were not substantially equivalent to the strikers’ prestrike jobs and thus the General Counsel never contended that the Respondent had an obligation under Rose Printing to reinstate the strikers to the seasonal jobs.9 Rather, the General Counsel relies on an alternative theory of unlawful dis- crimination, outlined in Rose Printing and overlooked by the judge, which states: Our duty is to ensure that strikers who have un- conditionally offered to return to work are to be treated the same as they would have been had they not withheld their service. They are therefore entitled to return to those jobs or substantial 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 The Respondent cites as evidence many of the same incidents detailed by the judge in a prior case involving these two parties. See Diamond Walnut Growers, 312 NLRB 61, 64–66 (1993). 11 The Respondent contends that the jobs to which it assigned the strikers were more highly supervised than those to which they were refused reinstatement and, therefore, afforded the strikers more pro- tection against violent replacement employees. In rejecting this con- tention, we note that the Respondent admitted that Munoz ‘‘freely roamed’’ the plant unsupervised during her breaks and that there is no evidence to indicate that Miller and Kussair did not similarly spend their breaktime unsupervised. Therefore, the potential for vio- equivalents if such positions become vacant, and they are entitled to nondiscriminatory treatment in their applications for other jobs. [Id. at 1078, em- phasis added.] As the Board specifically noted in Rose Printing, the General Counsel there did ‘‘not [litigate that] case on the theory that the [r]espondent refused to offer em- ployees work in other jobs because of their status as former strikers.’’ Id. Here, the General Counsel did litigate the case on that theory, and we find that a prima facie 8(a)(3) violation was established and was not rebutted by the Respondent. Thus, although the Respondent was under no legal obligation under Rose Printing to reinstate the strikers to jobs that were not substantially equivalent to their prestrike jobs, once it voluntarily decided to reinstate them, it was required to act in a nondiscriminatory fashion toward the strikers. The General Counsel con- tends that the Respondent failed to act in a nondiscrim- inatory fashion toward Miller, Munoz, and Kussair be- cause in reinstating them it refused to place them in the positions of quality control assistant, lift truck op- erator, and loader, respectively, because of their union status and/or because of certain protected union activ- ity they engaged in while on strike. The Respondent admits that it refused to reinstate the strikers to these positions but contends that such refusal did not violate the Act because ‘‘it [was] more than justified [in] placing minor restrictions on their job assignment to protect [its] product, the plant and the employees.’’ Accordingly, the Respondent defends its conduct on the basis that it has satisfied the re- quired burden under Fleetwood of showing ‘‘legitimate and substantial business justifications’’ for its actions. In support of its Fleetwood defense, the Respondent emphasizes that from its inception and continuing through the events at issue here, the Union’s strike has been marred by a number of violent acts allegedly di- rected by the Union at replacement employees.10 In addition, the Respondent notes that during the strike the Union instituted an international boycott of its product, which included a bus tour around the country where leaflets were disseminated to the public which depicted the Respondent’s work force as composed of ‘‘scabs’’ who were packaging walnuts contaminated with ‘‘mold, dirt, oil, worms and debris.’’ According to the Respondent, these acts of violence, as well as the attacks on product quality and the integrity of the replacement employees, engendered the buildup of a considerable degree of hostility among these employ- ees. Therefore, against this backdrop, the Respondent states that when it received the Union’s letter of Sep- tember 20 offering, on the named-strikers’ behalf, to return to work, it decided against placing Miller in the sensitive position of quality control assistant where the final visual inspection of walnuts is made prior to leav- ing the plant. Given that she was an active participant in the boycott and bus tour where its walnuts were as- serted to be tainted, the Respondent states that it could not risk placing Miller in that position where she would be provided ‘‘with an easy opportunity to let defective nuts go by undetected or to place a foreign object into the final product, thereby legitimizing the Union’s claims of tainted walnuts.’’ As to Munoz, who like Miller also traveled with the bus tour, the Re- spondent states that assigning her a lift truckdriver job was out of the question because in that position she not only could be confronted by hostile replacement employees if caught in an isolated area of the plant, but she would also have the same opportunity as Mil- ler to damage its product by driving the 11,000 pound lift trucks in a careless manner. Finally, with respect to Kussair, although he was not actively involved in the boycott or accompanying bus tour, the Respondent states that a ‘‘conscious decision had been made to not place any of the strikers in positions as loaders’’ be- cause the loader position is the ‘‘single most com- plained-about position in the entire plant . . . [and that it] knew full well that the Union would object’’ if Kussair were placed in that more ‘‘onerous’’ position. In any event, the Respondent states that even assuming it committed a violation for not giving him a loader job initially, it was later ‘‘remedied when the [Re- spondent] agreed to transfer Kussair’’ upon his request. The judge rejected the Respondent’s defense. As- suming, arguendo, that a Fleetwood defense is applica- ble to the instant case, we reject it for the same rea- sons that he did. Thus, with respect to the violence committed against the replacement employees, which the Respondent contends raised the specter of replace- ment employees retaliating in kind against the strikers, there is no evidence that Miller, Munoz, or Kussair were involved in that conduct and, as the judge noted in his prior decision, ‘‘in most of the incidents the per- petrator is unknown.’’ 312 NLRB at 67. Furthermore, there is no specific evidence that any replacements harbored hostility toward these three strikers, and, if such evidence did exist as the Respondent claims, we fail to see how placing them in the positions to which they were assigned would lessen the perceived danger of retaliatory acts being committed against them.11 39 DIAMOND WALNUT GROWERS lence against the strikers by the replacements existed even in the jobs to which they were assigned. 12 See, e.g., Clark Equipment Co., 278 NLRB 498 (1986). 13 Clark Equipment Co. (8 employees affected in a unit of over 800); Coca-Cola Bottling Co., 232 NLRB 717, 718 (1977) (2 em- ployees affected out of a unit of 106). 14 283 NLRB 192 (1987). 15 In light of the finding that the election should be set aside based on the 8(a)(3) violations found above, we find it unnecessary to pass the Union’s Objection 5. Further, Members Browning and Truesdale find it unnecessary to pass on the Union’s Objection 17 regarding the Regional Director’s failure to conduct a mail ballot election. However, they note that it may well be within the Regional Direc- tor’s discretion to conduct a mail ballot election, in whole or in part. Chairman Gould would sustain the Union’s Objection 17 and find that the Regional Director’s failure to conduct a mail ballot election in this case also warrants setting aside the election. In this regard, he notes that prior to the second election the Union requested that it be conducted by mail ballot because many strikers had temporarily relocated to distant locations to find interim employment and would be unable to get to the polls to vote. He finds mystifying and meritless the Respondent’s contention that this prediction by the Union about the need for a mail ballot has become moot by the fact that the Union lost the ensuing election by a margin of 100 votes and that the Union could point to only 35 strikers whom it could not contact prior to the election. The relevant fact here is not that the Union contacted all but 35 strikers, but rather that, according to Continued Under these circumstances, we find that the Respond- ent was not justified in restricting the strikers’ job placements out of fear that the replacement employees would retaliate against these three strikers. Nor do we find that the Respondent’s conduct was justified by the participation of Miller and Munoz in the boycott and circulation of leaflets disparaging the Respondent’s product and work force. As the judge found, the strik- ers’ conduct constituted protected Section 7 activity and there is no evidence indicating that such protection was lost because of threats made by Miller and Munoz to damage or sabotage the Respondent’s equipment or products. Accordingly, we agree with the judge that the Respondent failed to establish legitimate business justifications for restricting the job placements of Mil- ler and Munoz admittedly for union considerations. We are similarly unpersuaded by the reasons given by the Respondent for Kussair’s job placement. Al- though his circumstances differ from those of Miller and Munoz to the extent that he was not an active par- ticipant in the boycott or bus tour, he was a striker and the Respondent admits that it took that fact into con- sideration in deciding to assign him to the cracker po- sition rather than to the loader job. However benevo- lent the Respondent claims its decision was, we find that it was nevertheless unlawfully discriminatory and was not justified by the fact that the loader job was comparatively onerous and shunned by most employ- ees. Whether or not Kussair viewed the loader job this way was a decision for him to make, not the Respond- ent unilaterally. Because we find that Kussair’s place- ment in the cracker position was unlawful, we further find, in agreement with the General Counsel and con- trary to the judge’s conclusion, that the reprimand he received while in that position was the product of the unlawful job assignment and, thus, was also a violation of Section 8(a)(3) and (1). In sum, we find for the foregoing reasons that the Respondent’s proffered Fleetwood defense lacks merit, and, thus, we find that by its failure to offer Miller, Munoz, and Kussair positions as quality control assist- ant, lift truck operator, and loader, respectively, the Respondent has violated Section 8(a)(3) and (1) of the Act. Having concluded that the Respondent violated the Act in its discriminatory job assignments of the strik- ers, the question remains whether this conduct, which was committed during the critical period following the direction of election and which the Union included as a timely filed election objection, warrants setting aside the election. We find that it does. As noted above, our usual policy under Dal-Tex Optical Co. is to set aside an election whenever unfair labor practices are com- mitted during the critical period, because such conduct ‘‘is, a fortori, conduct which interferes with the exer- cise of a free and untrammeled choice in an election.’’ 137 NLRB at 1786–1787. Although it is true, as the Respondent notes, that an exception is made to this policy when it is virtually impossible to conclude that the violations have affected the election results,12 we do not find that exception applicable here. Unlike the two cases cited by the Respondent which both in- volved 8(a)(1) conduct affecting only a small number of employees relative to the size of the bargaining unit,13 the conduct here involved serious violations of Section 8(a)(3) in which employees were denied jobs solely because of their protected strike activity, while at the same time being placed in positions that were among the lowest paying in the plant. Although the bargaining unit here is substantial, numbering almost 1300 employees, 8(a)(3) violations, as the Board stated in Baton Rouge General Hospital,14 are ‘‘by their na- ture, not fleeting in their effects, and they are unlikely to escape the notice of fellow employees.’’ 283 NLRB at 192 fn. 5. The Respondent’s discriminatory treat- ment of these three employees was particularly likely to come to the attention of fellow employees in this case in view of the fact that the three discriminatees were sent back into the unit for the express purpose of communicating the Union’s message to the unit em- ployees. It was unlikely to escape notice by the unit employees that the Respondent did not look with favor on employees who chose to take such a leading role on behalf of the Union. We further note that the viola- tions occurred close in time to the election. On balance, therefore, in light of the seriousness of the violations and their timing, we find that the elec- tion should be set aside.15 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the final election tally, approximately 135 eligible employees failed to vote. Under these circumstances, where the Union advised the Re- gional Director that strikers would be unable to reach the polls and where a significant number of eligible voters, in fact, did not vote, he finds that the Regional Director abused his discretion by denying the Union’s request for a mail ballot election. Shepard Convention Services, 314 NLRB 689 (1994). 16 We leave to the compliance stage of this proceeding the Re- spondent’s contentions that its backpay liability with respect to the three strikers is tolled as of the date they rejoined the strike, or, in the case of Miller, that her backpay is tolled on the day she reported in sick, and that Kussair’s backpay is tolled on the day his request for a loader position was granted. 17 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. We shall order the Respondent to offer Willa Miller, Alfonsina Margaret Munoz, and Mohammed Kussair reinstatement to the position of quality control assist- ant, lift truckdriver, and loader, respectively, and to make them whole for the loss of earnings and benefits that they have suffered as a result of the discrimination against them.16 Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and interest shall be computed in the man- ner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). We shall also order the Respond- ent to remove from its files any reference to Kussair’s unlawful reprimand and to notify him that this has been done and that this unlawful action will not be used against him in any way. ORDER The Respondent, Diamond Walnut Growers, Inc., Stockton, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to offer Willa Miller, Alfonsina Margaret Munoz, and Mohammed Kussair reinstatement to the seasonal positions of quality con- trol assistant, lift truckdriver, and loader, respectively, because of their union status or their union activities. (b) Reprimanding employees for their failure to maintain job standards while performing in positions which they were unlawfully assigned. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Miller, Munoz, and Kussair immediate and full reinstatement to the seasonal positions listed above and make them whole for the loss of earnings and ben- efits they have suffered as a result of the discrimina- tion against them, in the manner set forth in the rem- edy section of this Decision. (b) Remove from its files any reference to Kussair’s unlawful reprimand and notify him in writing that this has been done and that this reprimand will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or appropriate to analyze the amount of money due under the terms of this Order. (d) Post at its facility and place of business in Stockton, California, copies of the attached notice marked ‘‘Appendix.’’17 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized represent- ative, shall be posted by the Respondent immediately upon receipt and maintained by them for 60 consecu- tive days in conspicuous places including all places where notices are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the no- tices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the election held on October 7 and 8, 1993, in Case 32–RC–3553, is set aside and that this case is severed and remanded to the Regional Director for Region 32 for the purpose of conducting a new election. [Direction of Third Election is omitted from publica- tion.] APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to offer Willa Miller, Alfonsina Margaret Munoz, and Mohammed Kussair reinstate- ment to the positions of quality control assistant, lift truckdriver, and loader, respectively, because of their union status or their union activities. 41 DIAMOND WALNUT GROWERS 1 All dates refer to 1993 unless otherwise indicated. 2 Without objection and prior to hearing, the General Counsel amended the complaint in certain particulars (G.C. Exh. 4). 3 The first election by secret ballot was conducted on August 11 and October 8 and 9, 1992. Out of approximately 1301 eligible vot- ers, 240 cast ballots for, and 8 cast ballots against the Union. There were no void ballots, and 942 challenged ballots which were suffi- cient in number to affect the results of the election. On February 3, a supplemental decision on challenged ballots was issued in which the majority of the challenges were overruled. On April 6, a revised tally of ballots showed that of approximately 1301 eligible voters, 1190 ballots were cast, and 366 cast ballots for and 592 cast ballots against the Union. The Union thereafter filed timely objections to the election. On September 3, a Board hearing officer issued her report finding merit to four of the Union’s objections. The Employer filed no exceptions to the hearing officer’s report. Thereafter, the Re- gional Director ordered that a second election be conducted (G.C. Exh. 2(c)). 4 According to the tally of ballots, there were approximately 1283 eligible voters, out of which 310 cast ballots for and 195 against the Union (G.C. Exh. 3(a)). No issue regarding the challenged ballots is before me. WE WILL NOT reprimand employees for their failure to maintain job standards while performing in positions which they were unlawfully assigned. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of you in the exercise of rights guaranteed you by Section 7 of the Act. WE WILL offer Miller, Munoz, and Kussair reinstate- ment to the seasonal positions listed above and WE WILL make them whole, with interest, for the loss of earnings and benefits they have suffered as a result of the discrimination against them. WE WILL remove from our files any references to Kussair’s unlawful reprimand and notify him in writ- ing that this has been done and that this unlawful ac- tion will not be used in any way against him. DIAMOND WALNUT GROWERS, INC. JoEllen Marcotte, Esq., for the General Counsel. Robert G. Hulteng and Robert Leinwand, Esqs., of San Fran- cisco, California, for the Respondent. Kenneth C. Absalom, Esq., of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Stockton, California, on March 23, 24, 25, and 28, 1994,1 pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 32 on January 26, 1994. In addition, on February 2, 1994, the Regional Director ordered consolidated certain issues arising from a representation election in Case 32–RC– 3553. The complaint, based on a charge filed on October 4, by Cannery Workers, Processors, Warehousemen & Helpers, Local 601, International Brotherhood of Teamsters (the Union), alleges that Diamond Walnut Growers, Inc. (Re- spondent) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act.2 The Union’s representation petition was filed on April 17, 1992, and sought a representation election among certain of Respondent’s maintenance, production, and warehouse em- ployees. A second election was held pursuant to a Third Sup- plemental Decision and Direction of Second Election issued on September 17.3 Timely objections to conduct affecting the outcome of the election were filed by the Union. In addition, it appears from the tally of ballots that 635 votes were chal- lenged, and they are sufficient in number to affect the out- come of the election.4 Issues I. Whether Respondent, through its agents and/or super- visors, committed one or more of the following acts which interfered with, restrained, and coerced employees in the ex- ercise of the rights guaranteed in Section 7 of the Act, and/or because of the employees status as strikers or returning strik- ers and because of their other protected concerted activities: (a) Witnessed an attempted assault on a union agent by a Respondent employee and condoned such act by taking no action against the employee, notwithstanding its policy of prohibiting assaults in the workplace. (b) Delayed for 3 days in restoring striker Dorothy Shaw and Hector Rosas to available positions of employment. (c) Declined to place certain returning strikers in the fol- lowing available positions of employment: Willa Miller as quality assurance assistant; Alfonsina Munoz as lift truck op- erator; and Mohammed Kussair as loader. (d) Verbally reprimanding Kussair and making a written record of the verbal reprimand. II. Whether Respondent, through its agents and/or super- visors, engaged in certain conduct prior to the second elec- tion and to which the Union filed timely objections, and if any such conduct occurred whether a third election is war- ranted. All parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and to cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Charging Party, and Respondent. Upon the entire record of the case, and from my observa- tion of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I. RESPONDENT’S BUSINESS Respondent admits that it is a California corporation en- gaged in the processing, nonretail sale, and distribution of walnut products and having an office and place of business located in Stockton, California. It further admits that during the past year, in the course and conduct of its business, it has sold and shipped goods or provided services valued in excess of $50,000 directly to customers located outside the State of California. Accordingly, it admits, and I find, that it is an employer engaged in commerce and in a business af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 See, e.g., Diamond Walnut Growers, 312 NLRB 61 (1993). II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Cannery Workers, Processors, Warehousemen & Helpers Local 601, Inter- national Brotherhood of Teamsters, AFL–CIO is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For a number of years prior to 1991, Respondent and the Union have maintained a collective-bargaining relationship. The last agreement between the parties began on July 18, 1988, and expired on June 30, 1991. On or about September 4, 1991, all or most of Respondent’s bargaining unit employ- ees ceased work and engaged in an economic strike. There followed extensive litigation in state and Federal courts and before the Board5 with respect to issues related to and gen- erated by the strike. As of the hearing of the instant case, the labor dispute was continuing. Respondent’s business is seasonal, although it employs a number of year-round employees. While the season varies from year to year depending on the timing of the walnut crop, in general the peak walnut season begins in approxi- mately the first week in September and continues through the last week in October. During the season, Respondent’s man- agers and supervisors work 12 to 14 hours per day, 6 or 7 days per week. Operations continue around the clock with 50 or more truckloads of walnuts per day being delivered. Re- spondent’s facilities consist of about 55 acres with about 1 million square feet under one roof. Broken down to its simplest and basic parts, Respondent’s operations consist of receipt of the walnuts, initial inspection to assess the quality, to weigh, and to compute payment for the crop, more detailed inspection to look for fungus, insect infestation, or other defects, packaging and packing into boxes. Some product is then temporarily stored in coolers on the premises while other product is shipped out to customers all over the United States and worldwide. Since the strike began just as Respondent’s 1991 season was beginning, two other seasons have come and gone and another is fast approaching. With most of Respondent’s long- time employees continuing the strike, Respondent has relied on permanent replacement employees to perform the work. Under the circumstances, it is not surprising that conflict de- veloped between the replacement workers and the strikers. This conflict had abated since the beginning months of the strike, but then increased to some extent in the weeks before the second election. The replacement workers feared that a union-election victory might result in loss of their jobs while strikers resented their own apparent job loss and the failure of Respondent to settle strike-related issues with the Union. B. Analysis and Conclusions 1. Unconditional offers by a few strikers to return to work a. The facts On September 20, Respondent’s managers received a phone call from a guard at the main gate. A number of strik- ers accompanied by a union official named William Freitas who did not testify were asking to be allowed into the plant in order to make an unconditional offer to return to work. After the delegation was allowed into the premises, they were escorted to a meeting with Vince Brown, Respondent’s director of human resources and Respondent witness, and with Wendy Heinze, Respondent’s supervisor of recruiting, compliance, and compensation and Respondent witness. For the Union, Freitas represented himself to be a union official of the Teamsters Union and an aide to Ron Carey, president of I.B.T., rather than an official of the Local. With Freitas, were three long-time employees, who had joined the strike from the beginning, and who were well known to Brown and Heinze; they were Willa Miller, Cynthia Zavala, and Char- lotte Loveday. Of this group, Miller testified in the General Counsel’s case-in-chief, Loveday testified for the General Counsel in rebuttal, and Zavala did not testify. Most of what occurred at the meeting is not disputed. All agree that the union delegation appeared at the plant gate in the morning hours without prior notice to Respond- ent. All agree that a 15-to 30-minute meeting ensued with Brown and Heinze. Freitas began the meeting by tendering to Brown and Heinze a letter which reads as follows: September 20, 1993 Robert Hulteng Littler, Mendelson, Fastiff, Tichy & Mathiason 650 California St., 20th Floor San Francisco, CA 94108 Vince Brown Director, Industrial Relations Diamond Walnut Growers, Inc. 1050 S. Diamond St. Stockton, CA 95205 Re: Unconditional Offer to Return to Work Dear Mr. Hulteng and Mr. Brown: After extensive hearings concerning Diamond Wal- nut’s conduct during the 1992 representation election, the NLRB Hearing Officer found that the Employer en- gaged in illegal campaigning which adversely affected the outcome of that election. This objectionable conduct included misleading and threatening the replacement workers as well as offering them improper financial in- ducements to win over their votes. Despite what must be an enormous expenditure of legal fees by the Em- ployer to defeat the Union, the Employer’s efforts have failed. Unfortunately, because of the Employer’s violation of the National Labor Relations Act, all parties must now incur additional costs to rerun the election. Several of the strikers share the Union’s conviction that because of Diamond management’s blind deter- mination to break the Union, no matter what the cost to the long-term employees, the Growers and the pub- lic, a fair election is simply impossible at this point. Nevertheless, because a rerun election is to be held, these employees feel that it is important that the re- placement workers, many of whom were last year sum- marily terminated within a few days after voting, have 43 DIAMOND WALNUT GROWERS 6 Art Torres is mentioned in the Union’s letter recited above. Torres never returned to work and no issue in this case concerns him. an opportunity to hear from Union sympathizers, an op- portunity denied them last year because few worked with them or attended the mandatory employee meet- ings in which management personnel campaigned. Accordingly, the strikers listed below have decided to cease their strike-related activities and have author- ized me to inform you that effective upon delivery of this letter, they are available and willing to return to immediate active employment. This unconditional offer to return to work is made on behalf of the following employees, each of whom will be present in person and ready to work when this letter is delivered at the Em- ployer’s premises. Name Contact Telephone No. Charlotte Loveday 931–0237 Willa Miller 464–4075 Art Torres 941–9207 Cynthia Zavala 948–4009 Although these employees have decided to work without condition, the Union has asked me to remind you that Section 7 of the National Labor Relations Act prohibits the Employer from discriminating or retaliat- ing against employees who have been on strike, or in any other way interfering with an employee’s right to engage in Union activities. The Union expects the Em- ployer to respect these rights and to treat these return- ing workers fairly. Very truly yours, /s/ Kenneth C. Absalom Kenneth C. Absalom pc: Lucio Reyes [G.C. Exh. 7.] After receipt of the letter, Brown explained that the return- ing strikers would have to follow the same procedure fol- lowed for previous returning strikers (crossovers). That is they would have to sign a form drafted by the Respondent indicating, in terms acceptable to the Company, their desires to return to work (see form, G.C. Exhs. 19 and 20). Freitas examined the form and then consulted privately by telephone with someone. A few minutes later, Freitas returned and stat- ed he would need to consult further with legal counsel, but would get back to Brown and Heinze later. Freitas then left with the three strikers and the company form. Later in the afternoon, Respondent received by courier three executed forms from the strikers who had been present. The Union had made certain changes to the company form, to which Respondent officials did not object. Ultimately the three strikers and four others as well returned to work for what turned to be a brief period.6 Both Brown and Heinze testified that during this initial meeting, Freitas instructed them that any communication be- tween the Company and the returning strikers must go through the Union, and that the strikers would communicate with the Company in the same way. Neither Brown nor Heinze objected to this procedure. Loveday was called in re- buttal to deny that Freitas had ever made such a statement. I credit Brown and Heinze on this point. Because Freitas was never called as a witness to testify to what he said, nor was his absence explained, I draw an adverse inference on this credibility issue. Douglas Aircraft Co., 308 NLRB 1217 fn. 1 (1992), and Property Resources Corp., 285 NLRB 1105 fn. 2 (1987), enfd. 110 CCH LC Sec. 10872 (D.C. Cir. 1988). Moreover, I note that in a letter of September 20, sent by Respondent Counsel Hulteng to the Union Counsel Absalom, there is a reference relative to this issue: ‘‘Because these strikers have elected to communicate through you, we are responding to you rather than to the strikers directly.’’ (G.C. Exh. 8, p. 2.) Hulteng again referenced the Union’s de- sired method of communication with strikers in a September 22 letter to Union Official Lucio Reyes. (G.C. Exh. 10.) There is no evidence that the Union challenged Hulteng’s as- sertions as misstatements. In his letter of September 20, Hulteng went on to reiterate what Brown had stated at the meeting with Freitas earlier that day, ‘‘The Company had no available regular positions at this time.’’ However, the three returning strikers had agreed to accept seasonal positions which were available. More about this will follow. On September 21, the Union notified Respondent by letter that three more strikers desired to return to work: Alfonsina Munoz, Mohammed Kussair, and Linda Acevedo (G.C. Exh. 9). Munoz and Kussair testified for the General Counsel, but Acevedo, like Torres, never returned to work, never testified, and played no role in this case. On September 22, Hulteng notified the Union by letter that again only seasonal positions were available and that the strikers were to report for work on September 23 at 7 a.m. (G.C. Exh. 10). On September 23, the Union notified Respondent by letter that two more strikers, Dorothy Shaw and Hector Rosas, de- sired to return to work (G.C. Exh. 11). To this offer, Hulteng wrote back on September 24 that no positions, seasonal or regular, were available at that time, but that the two employ- ees would be placed on a preferential rehire list for seasonal positions (G.C. Exh. 12). On September 30, Brown notified the Union by ‘‘fax’’ that seasonal positions had opened up for Shaw and Rosas and that they were scheduled to report for work on October 1, at 6 a.m. (G.C. Exh. 13). On October 7, Miller, Munoz, and Kussair gave written notice that they were resuming the strike (G.C. Exhs. 15, 16, and 18). b. Applicable legal principles In SKS Die Casting, 294 NLRB 372, 375 (1989), the Board stated the following applicable legal principles: In Zapex Corp., 235 NLRB 1237 (1978), enfd. 621 F.2d 328 (9th Cir. 1980), a case in which the respond- ent violated Section 8(a)(3) by failing to reinstate eco- nomic strikers following their unconditional offer to re- turn to work, the Board stated: Certain principles governing the reinstatement rights of economic strikers are by now well settled. In NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967), the Supreme Court held that if, after conclusion of a strike, the employer ‘‘refuses to rein- state striking employees, the effect is to discourage 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 The terminology ‘‘signed-off’’ means that Miller had completed Respondent’s personnel form by which she eliminated herself from consideration for any lifting job of 25 pounds or more. 8 In formulating the final stipulation, the parties sometimes referred to ‘‘quality assurance assistant,’’ or ‘‘quality control assistant.’’ The job titles refer to the same job. employees from exercising their rights to organize and to strike guaranteed by [Sections] 7 and 13 of the Act. . . . Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to ‘legitimate and substantial business jus- tifications,’ he is guilty of an unfair labor practice. The burden of proving justification is on the em- ployer.’’ The Court in Fleetwood relied on its deci- sion in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967), where it held that ‘‘once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected em- ployee rights to some extent, the burden is upon the employer to establish that he was motivated by le- gitimate objectives since proof of motivation is most accessible to him.’’ In reevaluating the rights of eco- nomic strikers in light of Fleetwood and Great Dane, the Board in The Laidlaw Corporation, 171 NLRB 1366, 1369 (1968), stated that: ‘‘The underlying principle in both Fleetwood and Great Dane, supra, is that certain employer conduct, standing alone, is so inherently destructive of em- ployee rights that evidence of specific antiunion mo- tivation is not needed.’’ 235 NLRB at 1238. See also Laidlaw Waste Systems, 313 NLRB 680 (1994). Returning economic strikers must be reinstated to their former positions, or to those which are substantially equiva- lent. Rose Printing Co., 304 NLRB 1076 (1991). Compare NLRB v. Aluminum Cruiser, Inc., 620 F.2d 116, 117–118 (6th Cir. 1980). ‘‘An employee retains his right to reinstate- ment until he receives the same job or one substantially equivalent to it . . . even if in the interim, he accepts a less- er or different position from the employer.’’ Webb & Co. v. NLRB, 888 F.2d 501, 503–506 (7th Cir. 1989); Providence Medical Center, 243 NLRB 714, 744 (1979). Respondent does not contest any of the above legal prin- ciples, nor the preliminary conclusions reached above. It ac- cepts its burden of proof under the Fleetwood case to show a legitimate and substantial business justification. I turn back to the record to consider Respondent’s arguments and addi- tional facts from the record. (1) Willa Miller This witness testified for the General Counsel as follows: She is 55 years of age and has worked for Respondent as a year-round employee since 1961. She joined the strike 1 week after it began only because she had been on vacation for that first week, and has continued on strike ever since ex- cept for the time she returned to work with union approval prior to the second election. For the 7 to 8 years prior to the strike, Miller worked as a quality control supervisor, which is a bargaining unit position. In that position, she supervised the work of seven to eight quality control assistants, which was her job for about 10 years before she became supervisor. As supervisor, Miller also trained the quality control assist- ants. Upon her return to work on September 22, Miller was as- signed a job as a packer in the ‘‘cello’’ department. As a packer, Miller received off a production line, 1-pound bags of walnuts packaged in cellophane bags and then packed 40 bags to a box, a task which took between 1 or 1-1/2 minutes. When the box was full, Miller was required to push the box along a conveyer to another conveyer belt where the box was then transported mechanically to another station. Miller per- formed this work for 2 days and then called in sick claiming her back was hurting her. In 1983, Miller had hurt her back at work and had signed-off7 any plant job requiring lifting over 25 pounds. The packing job in issue here required no lifting, only the pushing of the box when full. In 1973, Mil- ler had signed-off any job as casepacker. However, such re- strictions are valid for only 24 months. When Miller was as- signed a job as a casepacker, she made no protest, filed no grievance, or claimed any physical impairment. The parties stipulated at hearing that when Miller returned to work there were one or more job openings for the position of quality control assistant, that Miller was qualified to work in this position, and that if Miller had received the position, she could have remained in that job at least through October 7. It was also stipulated that the job of quality control assist- ant pays 32 cents per hour more than the job of casepacker.8 (Tr. 142–145.) Respondent called as a witness David Pedro, Miller’s man- ager before the strike. He testified that the job of quality control assistant is important because these employees must inspect and grade the walnuts for color, defects, mold, insect damage, and other foreign material before the walnuts are packaged for shipment. He also testified that based on Mil- ler’s work before the strike Miller was a capable, competent, and well-trained supervisor. (2) Alfonsina Margaret Munoz Munoz began working for Respondent as a seasonal em- ployee in 1973. About 1981, she became a year-round em- ployee. For approximately 11 to 12 years before the strike, Munoz worked in the carton warehouse as a forklift operator. In order to perform her job, Munoz had to travel all over the plant delivering packaging supplies and performing other du- ties. During the season, Munoz had little or no supervision. A plant manager named Howard Dickens testified for Re- spondent that a forklift weighed about 11,000 pounds and was capable of causing great damage to plant equipment or facilities if its driver so intended or was negligent in its oper- ation. A driver of a forklift could also drive it into remote corners of the plant where few employees work. Although Dickens was not Munoz’ immediate supervisor, he was the next level of supervision after Munoz’ supervisor. To his knowledge and no evidence in the record contradicted his testimony, Munoz never was disciplined for operation of the forklift and overall she had a good work record. When Munoz returned to work on September 23, she was assigned to work in growers inspection, the first inspection step in the process described above. Again the parties stipu- lated at hearing that as of the date Munoz returned to work, there was one or more lift truckdriver positions available and that if Munoz had been placed in that position, Munoz could 45 DIAMOND WALNUT GROWERS 9 Kussair’s job is a bid job also called a rated job. This means that qualified employees must bid to obtain these jobs. By contrast, there are four nonrated (unskilled) jobs which generally pay less than the rated positions: loader, production worker, case packer, and laborer. The grower’s inspection jobs are considered nonrated production jobs. have remained a forklift driver until she left to resume the strike. The parties also stipulated that Munoz was qualified as a lift truck operator, that seasonal lift truck operators are paid between $7.75 and $10 per hour, depending on experi- ence, and that for her production work in grower’s inspec- tion, Munoz was paid $5 per hour (Tr. 200–201). The evidence showed that Munoz performed her work in growers inspection in a room about 30 by 30 feet which con- tained six benches apparently set up on both sides of a long table. About 45 to 50 employees worked cracking open the walnut shells and inspecting the contents. On break periods and during lunch, Munoz was allowed to roam in and around the plant without restriction in order to campaign for the Union. (3) Mohammed Kussair This witness started working for Respondent in 1981 as a year-round employee. Prior to the strike Kussair worked as an air operator in the bulk storage department.9 Like Munoz, Kussair was assigned a job in grower’s inspection when he returned to work on September 23. Kussair testified that he had a comfort problem doing the work sitting down for 8 hours. He also had a comfort problem standing up, as due to his height, his head touched the overhead light. This wit- ness experienced conflict with his supervisor, Lexie White- man, a witness for Respondent, over Kussair’s alleged low production. On or about September 30, Kussair requested a job as a loader, a job much more physically demanding than the production job to which Kussair was assigned. The parties stipulated that when Kussair returned to work, one or more loader positions were available and if Kussair had been placed in a loader position as of the date he re- turned to work, he could have retained the job through the entire time of employment (Tr. 232). The parties also stipu- lated that the loader job paid $6 per hour while the produc- tion job paid $5 per hour. In the instant case, I find that the General Counsel failed to establish a prima facie case of unlawful discrimination with respect to returning strikers Miller, Munoz, and Kussair. Miller was qualified to perform the job of quality control as- sistant; Kussair was qualified to perform the job of loader and Munoz was obviously qualified to perform the job of lift truck operator which was the job she held when she went on strike. However, as the Board held in Rose Printing Co., supra at 1076, ‘‘an employer’s obligation to reinstate former economic strikers extends only to vacancies created by the departure of replacements from the strikers former jobs and to vacancies in substantially equivalent jobs, but not to any other job which a former striker is or may be qualified to perform.’’ I note further that the Board in Rose Printing Co., cited with approval two other cases which are applicable to the in- stant case. In New Era Electric Corp., 217 NLRB 477 fn. 1 (1975), the Board noted that the disputed poststrike posi- tion involved substantially lesser pay and would have en- tailed working under the charge of an employee in the strik- er’s former job. Accordingly, the Board found it to be non- equivalent to the striker’s former job. In the instant case, Miller, a former quality control supervisor, would have had to work for a lesser rate of pay, under the supervision of an employee in Miller’s former job now apparently filled by a permanent replacement employee. The Board in Rose Printing Co., also cited the case of Certified Corp., 241 NLRB 369 (1979), for the proposition that a ‘‘part-time temporary job . . . cannot be characterized as ‘substantially equivalent’ to any job formerly held by any strikers since the strikers were all employed on a regular full- time basis.’’ In the instant case, all jobs in issue—the ones the strikers were assigned to and the ones General Counsel claims they should have received were ‘‘seasonal,’’ lasting for 8 to 10 weeks. I conclude therefore as the Board did in Rose Printing Co., supra at 1078–1079, ‘‘Acceptance of the General Counsel’s argument would mean that a striker would have two reinstatement rights and that employer would have two correlative obligations.’’ One is reinstatement to any job which the striker is qualified to perform, even if not the same or substantially equivalent to the striker’s prestrike po- sition. Then when the striker’s former job or a substantially equivalent one became available, the striker would have a right to transfer to that job. Because Federal labor law does not provide such a two-step process, I find that Miller, Munoz, and Kussair, all full-time, year-round employees, were not entitled to seasonal jobs as quality control assistant, as lift truck operator, or as loader, respectively. Accordingly, I will recommend to the Board that this segment of the case be dismissed. c. Alternative findings If the Board finds that General Counsel has established a prima facie case of discrimination against the returning strik- ers, then I would find that Respondent violated Section 8(a)(1) and (3) of the Act because I also find that Respond- ent has failed to establish legitimate and substantial business justifications for placing the returning strikers in the jobs to which they were assigned. I begin my analysis here by re- jecting Respondent’s suggestion (R. Br. 27, fn. 20) that be- cause the Union never filed a grievance nor did any of the strikers immediately ask to be transferred to different jobs, there could be a waiver of the striker’s rights. It is the Re- spondent’s burden to show a legitimate and substantial busi- ness justification and neither the Union nor the strikers are obligated to put the Respondent on notice that it should fol- low the law. In NLRB v. Fleetwood Trailer, supra at 376, the Court gave two examples of when legitimate and substantial busi- ness justifications for refusing to reinstate striking employees have been recognized: When the jobs are occupied by perma- nent replacements and when the striker’s job has been elimi- nated for substantial and bona fide reasons, other than con- siderations relating to labor relations. I will assume without deciding that the Court did not intend to limit the application of the defense to the two examples cited in the opinion. When the strikers gave first notice of their unconditional offer to return to work, the union counsel provided Respond- ent with General Counsel’s Exhibit 7, which I have recited above. In addition, as found above, Freitas told the Employ- er’s representatives, Brown and Heinze, that all communica- 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 That the agency status of the returning strikers cannot be consid- ered controlling in my analysis is shown by the Board’s decisions in Willmar Electric Service, 303 NLRB 245 (1991), enfd. 968 F.2d 1327 (D.C. Cir. 1992), cert. denied 113 S.Ct. 1252, and its progeny. In Willmar Electric, the Board held that an applicant for employment who was employed by the union at the time of the application and who planned to continue some kind of employment affiliation with the union, was nevertheless an employee within the meaning of Sec. 2(3) of the Act. Despite some conflicting decisions in the court of appeals, see H.B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir. 1989); Ultrasystems West Constructors v. NLRB, 145 LRRM 2641 (4th Cir. 1994), the Board has continued to adhere to its view that there is no conflict of interest if an employee of the union seeks employment with a company to organize employees. See, e.g., Sunland Construc- tion Co., 309 NLRB 1224 (1992); Town & Country Electric, 309 NLRB 1250 (1992); and Ultrasystems West Constructors, 310 NLRB 545 (1993). 11 Respondent also presented incident reports and even testimony from a prior Board case involving Respondent, 312 NLRB 61 (1993), reflecting threats, assaults, and vandalism by some strikers against some nonstrikers (R. Exhs. 22–25). All or most of this evi- dence relates to events in the early days of the strike. I assign little weight to it. As to R. Exh. 20, a particularly graphic boycott hand- bill, the Union denies any involvement with its preparation or dis- tribution and I assign no weight to it at all. 12 As noted above, the threats or acts of violence committed by other strikers had long since abated. Moreover, even if Respondent had evidence of misconduct against these strikers, it could be argued that it waived any rights it may have had with respect to said striker misconduct by returning the strikers to work. This is an issue I need not decide here. tion with the strikers should go through the Union. Based on these facts in the context of surrounding facts and cir- cumstances, I will assume for the sake of argument that the returning strikers were agents of the Union. See Allegany Ag- gregates, Inc., 311 NLRB 1165 (1993); Millard Processing Services v. NLRB, 2 F.3d 258, 262 (8th Cir. 1993).10 Respondent presented evidence that the Union was urging a boycott of Respondent’s products (R. Exh. 2). In addition, the Union was circulating handbills stating in part, ‘‘Dia- mond management appears to be looking the other way while scabs package walnuts with mold, dirt, oil, worms and de- bris.’’ The public (including Respondent’s customers) is again urged to ‘‘Boycott Diamond Walnut’’ (R. Exh. 3). Re- spondent also presented evidence that the Union and its agents traveled on a bus to selected cities around the country, seeking to publicize the strike and to create support for it and urging the public to boycott Respondent’s products (R. Exhs. 18–20).11 Some of the Union’s circulars are the subject of a state court libel action, and I express here no opinion whatsoever on any issue in that litigation. The only issue here is whether the Respondent had a legitimate and substantial business jus- tification for assigning the strikers to the jobs they did. Both Miller and Munoz admitted knowledge of the Union’s circu- lars and involvement with their distribution. Both Dan O’Connell, Respondent’s vice president of operations, and Brown testified that in assigning jobs to returning strikers, they considered both the safety of the returning strikers and that of the replacement employees, the possibility that the strikers could sabotage the product or intentionally damage equipment, or otherwise cause mischief to Respondent’s prej- udice. In considering Respondent’s position, I note the following: there is no evidence that the Union nor any of the returning strikers had made threats against replacement workers nor threats to damage or sabotage equipment or products.12 At page 31, footnote 21 of its brief, Respondent cites the case of NLRB v. Electrical Workers IBEW Local 1229 (Jefferson Standard), 346 U.S. 464, for the proposition that Miller and Munoz had engaged in disloyalty and product disparagement by circulating materials during the bus tour and at other times urging a boycott of Respondent’s materials and assert- ing that Respondent’s product is contaminated. In Sierra Publishing Co. v. NLRB (Sacramento Union), 889 F.2d 210 (9th Cir. 1989), enfg. 291 NLRB 540 (1988), the court stated as follows: [T]he disloyalty standard is at base a question of wheth- er the employees’ efforts to improve their wages and working conditions through influencing strangers to the labor dispute were pursued in a reasonable manner under the circumstances. Product disparagement unconnected to the labor dispute, breach of important confidences and threats of violence are clearly unrea- sonable ways to pursue a labor dispute. On the other hand, suggestions that a company’s treatment of its em- ployees may have an effect upon the quality of the company’s products, or may even affect the company’s own viability are not likely to be unreasonable, particu- larly in cases where the addressees of the information are made aware of the fact that a labor dispute is in progress. Childish ridicule may be unreasonable, while heated rhetoric may be quite proper under the cir- cumstances. Each situation must be examined on its own facts, but with an understanding that the law does favor a robust exchange of viewpoints. The mere fact that economic pressure may be brought to bear on one side or the other is not determinative, even if some eco- nomic harm actually is suffered. The proper focus must be the manner by which that harm is brought about. In this case, where long-term newspaper employees had accepted pay cuts because the paper claimed finan- cial difficulty, where negotiations had continued for a long time with no results, and where the letter in ques- tion [mailed to 50 of the employer’s main retail adver- tisers] was directly and overtly related to labor dispute and disclosed no significant confidences, there is sub- stantial evidence to support the Board’s finding that the means chosen by the employees were not so unreason- able as to lose Section 7 protection on grounds of dis- loyalty. At page 216 of its opinion in Sierra Publishing Co., the court cited Allied Aviation Service, 248 NLRB 229 (1980), enfd. 636 F.2d 1210 (3d Cir. 1980). There, the Board found that the employer had unlawfully suspended and discharged an employee for engaging in protected Section 7 activities. As the Board stated, the employee, ‘‘in seeking outside as- sistance [in letters to the employer’s customers], chose to emphasize the safety aspects of the two ongoing disputes.’’ The Board found that ‘‘[a]lthough the ongoing dispute . . . had not arisen strictly on safety grounds, we cannot say that the safety aspects . . . were not part of or were unrelated to the disputes.’’ Further, the Board noted (supra at 231): 47 DIAMOND WALNUT GROWERS In determining whether an employee’s communication to a third party constitutes disparagement of the em- ployer or its product, great care must be taken to distin- guish between disparagement and the airing of what may be highly sensitive issues. . . . [W]e have pre- viously held that, absent a malicious motive, [an em- ployee’s] right to appeal to the public is not dependent on the sensitivity of [the employer] to his choice of forum. . . . [W]e find nothing in the letters which rises to the level of public disparagement necessary to de- prive otherwise protected activities of the protections of the Act. Similarly, in Mitchell Manuals, 280 NLRB 230 (1986), the Board found ‘‘nothing’’ in the ‘‘language’’ of the employ- ees’ letter to the chairman of the employer’s parent corpora- tion ‘‘sufficiently opprobrious, defamatory or malicious . . . to remove the employees from the protection of the Act.’’ The Board noted (supra at 231): Although the employees’ message is couched in terms of criticism of [the employer’s] operations, the thrust of the letter is the employees’’ proposal for increasing the professionalism of their jobs. . . . Moreover, we reject the . . . contention that the . . . letter is unprotected as it contains statements which are false, as there is no evidence that, if false, they are deliberately or mali- ciously false, and it is well settled that falsity of a com- munication does not necessarily deprive it of its pro- tected character. And, in Emarco, Inc., 284 NLRB 832 (1987), the Board also found that the employees’ ‘‘remarks’’ were not ‘‘mali- cious falsehoods,’’ they ‘‘were not in the nature of a per- sonal attack unrelated to the employees’ protest of [the em- ployer’s] labor practices’’; and ‘‘to the extent the . . . re- marks reflect bias or hyperbole . . . in the context of an emotional labor dispute clearly identified as such . . . they cannot be said to be so disloyal, reckless or maliciously un- true as to lose the Act’s protection.’’ The Board, applying the above principles in Cincinnati Suburban Press, 289 NLRB 966 (1988), similarly found that the employer newspaper violated Section 8(a)(1) and (3) of the Act when it suspended and discharged an employee be- cause he wrote and published an article in another publica- tion entitled ‘‘Dirty Tricks In The Newsroom.’’ The Board agreed that the employee’s article was ‘‘inextricably en- twined’’ with ongoing union activities, noting (supra at 967): Even though an employee may be acting alone, an em- ployee attempting to form, join or assist a labor organi- zation is nevertheless protected by Section 7 of the Act. . . . [Further, the] article was not so disloyal, reckless or maliciously untrue so as to lose the Act’s protection. Although the [employer] argues that . . . [the] article [was] inaccurate, it has failed to show any evidence of malice or recklessness on [his] part. The Board also noted (Id. at 968): In contending that [the employee’s] conduct was un- protected, the [employer] relies heavily on the sentence in [the] article that, ‘‘One effort at persuasion by execu- tive editor Doug Sandhage would have been laughable had it not indicated an insidious disregard for the truth.’’ The [employer] argues that this sentence im- pugned its integrity and the truthfulness of its news- papers. It is clear, however, that the reference to Sandhage in the article related solely to and was in the context of reciting management’s opposition to the union, and it neither disparaged Sandhage’s personal in- tegrity or truthfulness with respect to the publication of the newspaper nor disparaged the integrity or truthful- ness of the [employer’s] products, the publication of a newspaper generally. In these circumstances, we con- clude that [this] reference . . . was not such as to for- feit the protection of Section 7. See also Springfield Library & Museum, 238 NLRB 1673 (1979), where the Board noted: Specificity and/or articulation are not the touchstone of union or protected activity. Rather, the issue to be addressed is the question of whether or not the com- ments are related to concerted or union interests. Once the concerted nature of the words is established . . . re- spondent ha[s] the burden to show that the words were published with the knowledge of their falsity or with a reckless disregard of whether they were true or false. As a result of the cases and discussion above, I conclude that the statements made by strikers or the Union represent- ing them in the instant case are linked to the labor dispute in question. Furthermore, the fact that they may be biased or contain hyperbole does not render them unprotected. Rather, so long as the statements in question are not malicious in character, they are protected. American Cast Iron Pipe Co., 234 NLRB 1126, 1131 (1978)(and cases cited therein), enfd. 600 F.2d 132 (8th Cir. 1979); Texaco Inc. v. NLRB, 462 F.2d 812, 815 (3d Cir. 1972), cert. denied 409 U.S. 1008 (1972). The burden is on the Respondent to establish that a striker’s statements are false and malicious in order to justify denying the employee’s reinstatement. See American Hospital Assn., 230 NLRB 54, 56 (1977), and cases cited therein. Assuming without finding that the above authorities are applicable to the instant case where the issue is not whether a particular striker has committed misconduct so serious as to preclude reinstatement at all, but rather where the issue is whether the Respondent is entitled to assign a striker to a different job other than the one to which the striker is other- wise entitled, because of speculation about what the striker might do, even as an agent of the Union, I find that Re- spondent has failed to meet its burden to show that the Union’s statements were maliciously false. Indeed, as I un- derstand the pending state court litigation, the issue in the libel action is essentially whether the Union acted mali- ciously in making the statements in question. 2. Delay in returning striking employees Shaw and Rosas to work As already noted above, a series of letters were exchanged regarding Shaw and Rosas and culminating with a directive to the Union on September 30 that seasonal positions were available for them and that they should report for work at 6 a.m. on October 1 (G.C. Exhs. 13 and 14). Backing up, I note that on September 27, Hulteng wrote to Union Coun- 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 13 Macchello testified that after the incident she made a verbal re- port to the Union, to those who were accompanying her and to oth- ers, but she can’t recall the names of anyone (Tr. 90). 14 In light of my conclusion, it would unnecessarily prolong this segment to recite the conflicts between Macchello’s testimony and her declaration to the Board. sel Absalom regarding the same two strikers, ‘‘In the event that seasonal positions open up, the Company proposes to contact the two employees directly to recall them for work. If you would prefer that we again go through you to commu- nicate with these employees, just let me know.’’ (G.C. Exh. 12.) On September 30, Brown wrote a letter via ‘‘fax’’ to Lucio Reyes, a union official, ‘‘Please advise Hector and Dorothy that we now have openings for them due to attrition and they have been scheduled to work in seasonal positions beginning Friday, October 1 at 6 a.m.’’ (G.C. Exh. 13.) On the same day Respondent Attorney Leinwand also wrote a letter via ‘‘fax’’ to Reyes restating the information in Brown’s letter recited above and adding ‘‘Because these strikers have elected to communicate through you, we are re- sponding to you rather than to the strikers directly.’’ (G.C. Exh. 14.) Neither Shaw nor Rosas was notified to report for work on October 1 and neither did so report. Shaw was originally told by Linda Geisler, a striker then working for the Union, in a telephone call on October 2 at 8:30 p.m., to report for work on October 3 at 1 p.m. Then Geisler called back and said don’t report for work until October 4, which Shaw did. In analyzing this issue, I begin with my credibility finding already stated above, that Freitas told Brown and Heinze on September 20 that he desired all communications between the Employer and returning strikers to go through the Union. This is consistent with a principal-agency relationship be- tween the Union and returning strikers which I have also found above. Having said this, I cannot account for Hulteng’s statement in his letter to Absalom which I quoted above, other than to note that Hulteng was not present when Freitas made his statement to Brown and Heinze. Nor can I explain why the Union failed to object to Hulteng’s state- ment. Nevertheless, I also note that Reyes, to whom Brown and Leinwand sent their ‘‘faxes’’ as recited above, although present for all or most of the hearing (Tr. 44), was never called as a witness. In sum, I find that any delay in having Shaw and Rosas report to work was the fault of the Union and not the Respondent. By going through the Union the Re- spondent was merely acceding to the wishes of Freitas. Ac- cordingly, I will recommend that this allegation be dis- missed. 3. The alleged assault on a union agent A union organizer named Paula Macchello testified that on or about September 29, about 8 p.m., she was on a Respond- ent-approved tour of the plant for the two-fold purpose of campaigning for the Union and of observing the Employer’s campaign signs and other indicia of its campaign inside the plant to defeat the Union in the approaching election. While wearing apparel and insignia clearly identifying her as a union supporter and/or union agent and while in the company of several other people including two strikers named Granger and Malanca who did not testify, another union representa- tive named Anton Hinrichsen, who did testify, and the dele- gation’s management escort, Greg Gorang, who also testified, Macchello claims that an employee swung a flat piece of cardboard at her narrowly missing her but brushing her cloth- ing. For a number of different reasons, I do not credit Macchello’s testimony. To begin, I note some confusion over whether this incident allegedly occurred on September 28 or 29. This issue is of no interest to me and I dismiss it as a factor in judging Macchello’s credibility. Of greater import to me is her reac- tion to this alleged assault. She testified that she looked in the direction of Gorang and while mouthing the words, ‘‘What’s this!’’ shrugged her shoulders. Gorang, Respond- ent’s director of night operations, testified that at the time and place in question, he neither saw the assault nor Macchello’s alleged reaction to it. There is no mention of the incident in any of Gorang’s notes (R. Exhs. 14, 15). All agree that later during the tour, and after the tour ended, Macchello neither mentioned the incident to Gorang, nor attempted to identify her alleged attacker. I find Macchello to be an assertive, confident woman who has worked as an organizer for the Teamsters for 18 months. She was no shrinking violet. Her behavior after the alleged inci- dent is not consistent with the outrage I would expect from a union representative under the circumstances.13 The Union called Hinrichsen, a former Respondent em- ployee for over 10 years before the strike and now a union representative since January. Although present with Macchello on the plant tour, Hinrichsen did not corroborate her testimony nor provide any testimony at all on the issue. As noted above, the other strikers on the tour were not called as witnesses. The two to five other workers working with or near the alleged assailant were, like the assailant himself, never identified and obviously never called as witnesses. In light of the above, one searches the record for some de- gree of corroboration. Macchello testified there was corrobo- ration in the form of her personal notes in which, she duti- fully recorded the incident in question, the very night it hap- pened. However, Macchello testified that despite her best ef- forts, she couldn’t find her notes—none of them. For the rea- sons reflected above, I don’t believe Macchello and I will recommend that this allegation be dismissed.14 4. The reprimand of Kussair The General Counsel has alleged in the complaint that Kussair’s reprimand of October 1 (G.C. Exh. 17) violated the Act. One searches the General Counsel’s brief in vain for any discussion of this issue. As I understand the General Counsel’s theory, it derives from the earlier claim that Kussair was unlawfully placed in a job in grower’s inspec- tion. I have rejected that theory. I also credit the testimony of Kussair’s supervisor, Whiteman, that she warned him three times after he returned to work that he was not making the production quota which all other workers in that job were required to make. After the third warning, Kussair protested ‘‘in her face’’ and Whiteman called Brown for assistance. He told Kussair flatly that his insubordination would not be tol- erated and he issued the written reprimand. I also credit the testimony of Heinze in two particulars. First, I find that on or about October 6, Kussair requested a transfer to a loader position, and Respondent agreed to the transfer, but that Kussair returned to the strike before the job switch could be made. I also credit Heinze regarding why 49 DIAMOND WALNUT GROWERS Kussair was not given a loader job in the first place. The job requires lifting heavy bags or cases of walnuts off the line and stacking them on pallets, the lifting and stacking of bags into a truck and/or the performance of heavy cleanup work. This position is frequently available because the work is heavy and unpopular and leads to the greatest number of complaints to Respondent’s human resources department. I find that work as measured by any objective scale is more onerous and less desirable than work in Respondent’s grow- er’s inspection department. Compare Wellstream Corp., 313 NLRB 698, 705–706 (1994). For the reasons stated above, I will recommend that this allegation has been unproven and should be dismissed. 5. The objections I begin with a statement of relevant Board law. ‘‘[B]allots cast under the safeguards provided by Board procedure [presumptively] reflect the true desires of the par- ticipating employees.’’ NLRB v. Zelrich Co., 344 F.2d 1011, 1015 (5th Cir. 1965). Thus, the burden of proof on parties seeking to have a Board-supervised election set aside is a ‘‘heavy one.’’ Harlan #4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir. 1974), cert. denied 416 U.S. 986 (1974); see also NLRB v. First Union Management, 777 F.2d 330, 336 (6th Cir. 1985) (per curiam). This burden is not met by proof of misconduct, but ‘‘[r]ather, specific evidence is required, showing not only that unlawful acts occurred, but also that they interfered with the employees’ exercise of free choice to such an extent that they materially affected the results of the election.’’ NLRB v. USM Corp., 517 F.2d 971, 975 (6th Cir. 1975) (quoting NLRB v. White Knight Mfg. Co., 474 F.2d 1064, 1067 (5th Cir. 1973). See also Colquest Energy v. NLRB, 965 F.2d 116 (6th Cir. 1992). In sum, representa- tion elections are not lightly set aside. Monroe Auto Equip- ment Co., 470 F.2d 1329, 1333 (5th Cir. 1972), cert. denied 412 U.S. 928 (1973). In NLRB v. VSA, Inc., 24 F.3d 588 (4th Cir. 1994), the court stated, while the Board ‘‘aspires to ‘laboratory conditions’ in elections,’’ it is clear that ‘‘clinical asepsis is an unat- tainable goal in the real world of union organizational efforts.’’ Indeed, ‘‘exaggerations, hyperbole, and ap- peals to emotions are the stuff of which election cam- paigns are made.’’ Schneider Mills, Inc. v. NLRB, 390 F.2d 375, 379 (4th Cir. 1968) (en banc). And while ‘‘[c]oercive conduct is never condoned during the elec- tion process . . . the Board will not set aside an elec- tion unless an atmosphere of fear and coercion rendered free choice impossible.’’ [Citation omitted, supra at 595.] With the above as an introduction, I turn to the objections in issue. Objections 2 and 4 (2) The Employer through its supervisors, agents, representatives and/or known sympathizers interfered with the fair operation of the election process and the necessary laboratory conditions by encouraging and condoning an atmosphere of fear and intimidation for union sympathizers . . . and (4) by making threats of reprisal and/or physical harm to employees who voted for the Union and/or by failing to take reasonable and appropriate actions to discourage and deter such con- duct. At page 14 of its brief, the Union asserts that the testi- mony of Macchello, an agent of the Union, was offered in support of both objections. I have discredited Macchello’s testimony insofar as it suggested that Respondent’s employee attempted to strike her with a cardboard box. As to other portions of her testimony, Respondent does not dispute it. On or about September 29, while on the same plant tour previously described, Macchello observed a man walking to- ward her near the plant cafeteria. He was wearing a T-shirt with the legend ‘‘Choke A Striker Vote No’’ and a white hard hat with the name Dimas printed on it. Macchello testi- fied that in some unspecified way, she brought the T-shirt to Brown’s attention. Brown denied ever seeing an employee wearing such a T-shirt and denied Macchello brought the matter to his attention. I credit Brown on this point because there would have been no reason to ignore the Union’s pro- test of such a T-shirt. In addition, I note that Macchello again failed to produce her personal notes of this incident to corroborate her testimony. Hinrichsen saw the same man wearing the same T-shirt on two occasions. On one of these occasions, Respondent’s vice president, Dan O’Connell, was present but Hinrichsen did not bring the matter to his attention, because ‘‘There might be room for objections of that person wearing that shirt dur- ing the pre-election procedure.’’ In other words, Hinrichsen felt that the best way to preserve the Union’s right to objec- tion later was not to bring the T-shirt to O’Connell’s imme- diate attention (Tr. 369). Respondent produced a witness at hearing named David Dimas. A Respondent year-round employee for 2 years, Dimas currently works as a spray booth operator in the can- nery department. Dimas testified that at his own expense, he had three T-shirts made up with the legend on the front as described by Macchello. Nothing was printed on the back. He further testified that he was wearing the T-shirt at the times and place described by Macchello and Hinrichsen. He also testified that when he encountered Macchello, she said to him, ‘‘You think you’re hot shit with that shirt.’’ To this Dimas made no reply. On September 21, Respondent issued a memo to all em- ployees from O’Connell, which reads as follows: DATE: September 21, 1993 TO: All Employees FROM: D. O’Connell SUBJECT: Strikers The Teamsters Union has told us that a small group of strikers want to come into work during the season. The Union has told us that these strikers will be trying to convince employees to support the Union in the up- coming election. The law protects the rights of all employees to fully participate in an election campaign. Employees who are for the Union have the same rights as employees who are against the Union. Everyone is free to express their views. As a reminder, it is against Company policy for any employee to engage in physical or verbal attacks or in- 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD timidation of other employees at work. Also, all cam- paign activities and discussions must take place during nonworking time, like breaks and the lunch hour. Within these guidelines, we encourage all employees to express their views, either for or against the Union. Thank you. [R. Exh. 7.] Dimas was aware of the memo and felt that the T-shirts he had made up violated the policy. However, he decided to wear the T-shirts to the plant on two occasions as a joke. He wore the shirt during his entire shift and it was not covered up. No one from management observed him wearing the T- shirt, to Dimas’ knowledge. At page 17 of its brief, the Union states ‘‘we acknowledge that the record does not show that [Macchello’s assailant] nor David Dimas . . . did so at the behest of the Employer.’’ To this, I will add that Respondent took reasonable measures to confiscate replacement workers’ campaign signs posted in and around the plant which were inflammatory and which management was aware of. In addition, O’Connell, Brown, and Heinze talked to certain replacement workers, including a leader of the antiunion campaign, Respondent machine op- erator Sonja Bubeck, who testified for Respondent. While the primary purpose of Bubeck’s testimony was to establish the tension and resentment among the replacement workers in re- action to the returning strikers (evidence to which I assign little weight). I also note that Respondent’s managers talked to Bubeck and other employees to explain that the returning strikers had a right to return to the plant, that they would be allowed to campaign on behalf of the Union during nonwork time, and that the replacement workers should ‘‘cool it.’’ The Union continues at page 17 of its brief to contend that the relevant evidence should be evaluated under the standard for third party conduct articulated in Westwood Horizon Hotel, 270 NLRB 802 (1984). For me, only the Dimas’ T- shirt is in issue, and Dimas’ conduct must be measured against the applicable standard, whether the misconduct was so aggravated as to create a general atmosphere of fear and reprisal. Westwood Horizons Hotel, supra at 803. In Q.B. Re- builders, 312 NLRB 1141, 1142 (1993), the Board provided additional guidance for evaluating third-party conduct: ‘‘the Board evaluates not only the nature of the threat itself, but also whether the threat encompassed the entire bargaining unit; whether reports of the threat were disseminated widely within the unit; whether the person making the threat was ca- pable of carrying it out; and whether it is likely that the em- ployees acted in fear of [that person’s] capability of carrying out the threat; and whether the threat was ‘rejuvenated’ at or near the time of the election.’’ Cf. NLRB v. Eskimo Radiator Mfg. Co., 688 F.2d 1315, 1319 (9th Cir. 1982). I find that the wearing of the T-shirt in question was iso- lated and not condoned by Respondent’s management, and could not possibly have created a general atmosphere of fear and reprisal. There is no credible evidence that any super- visor saw Dimas wearing the shirt, no evidence at all that any striker or replacement worker saw Dimas wearing the shirt and at least one of the paid union agents who observed the shirt made a calculated decision to remain mute so as to garner possible benefits later on. Finally, I credit Dimas that he wore the T-shirt as a joke—albeit I find that it was a bad joke. If anyone did see him wearing the T-shirt, no one could seriously or reasonably believe that Dimas had the capability of carrying out the threat, such as it was. In light of the above, I will recommend that Objections 2 and 4 be over- ruled. Objection 8 The Employer through its supervisors, agents, and/or rep- resentatives interfered with the fair operation of the election process and the necessary laboratory conditions by giving gifts, and/or making promises of benefits to employees. In support of this objection, the Union presented a witness named Gricelda Contrerras, Respondent’s employee since 1979 assigned to the cannery department and a striker from the beginning. This witness gave testimony relating to an al- leged conversation between herself and an unidentified Cau- casian female driving an automobile, about 4 or 4:30 p.m., about 3 to 4 days before the election. According to Contrerras, the person made certain statements in conclusionary terms about what the employer was allegedly doing to persuade replacement workers to support the em- ployer in the election. When Contrerras finished her direct testimony, Respondent moved to strike on the grounds of hearsay testimony and no proper foundation. In response to my inquiry, the Union candidly represented that it had no evidence to show that the declarant, that is, the female driv- er, was a replacement worker or had any other connection to Respondent. I struck the testimony from the record and re- affirm that decision here. Accordingly, I will recommend that Objection 8 be overruled. Objection 11 The Employer through its supervisors, agents and/or representatives interfered with the fair operation of the election process and the necessary laboratory conditions by assigning employees who were avowed Union sym- pathizers to more onerous jobs and isolating them from other employees, thereby inhibiting their right to com- municate with other employees regarding campaign matters. At pages 2–3 of its brief, the Union states ‘‘the evidence relating to Objection No. 11 is the same as that which sup- ports the 8(a)(3) allegations . . . we join in [General Coun- sel’s] analysis of the record evidence and adopt it as support for Objection No. 11.’’ I have found General Counsel’s alle- gation lacking in merit and have recommended above, that they be dismissed. Accordingly, I will recommend that Ob- jection 11 be similarly dismissed. CONCLUSIONS OF LAW 1. Respondent, Diamond Walnut Growers, Inc., is an em- ployer within the meaning of Section 2(2) of the Act, en- gaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Cannery Workers, Processors, Warehouse- men & Helpers Union, Local 601, International Brotherhood of Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. 4. The objections of the election are all without merit. 51 DIAMOND WALNUT GROWERS 15 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended15 ORDER It is ordered that the complaint be, and is, dismissed in its entirety. IT IS FURTHER ORDERED that the Union’s Objections 2, 4, 8, and 11 to the election conducted in Case 32–RC–3553 are dismissed.