Allied-Signal, Inc.

ALLIED-SIGNAL Allied-Signal, Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 11-RC-5527 August 22, 1989 DECISION AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS The National Labor Relations Board, by a three- member panel, has considered objections to an election held October 19 and 20 , 1988, and the at- tached decision and report of Administrative Law Judge William N. Cates recommending disposition of them.' The election was conducted pursuant to a Stipulated Election Agreement. The tally of bal- lots shows that of approximately 1050 eligible voters, 466 cast ballots for and 558 against the Peti- tioner, with 3 void and 5 challenged ballots, an in- sufficient number to affect the results. The Board has reviewed the record in light of the exceptions and briefs, and has adopted the judge's findings2 and recommendations3 and issues the following certification of results of election. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for United Steelworkers of America, AFL-CIO, CLC and that it is not the ex- ' The Board directed that the instant hearing on objections be conduct- ed by an administrative law judge as part of a bifurcated proceeding, sep- arate from the resolution of pending unfair labor practice issues in Case 11-CA-12911 The unfair labor practice hearing was scheduled to be conducted by the same judge to ensure that resolutions on credibility will be consistent with the instant case 8 The Petitioner has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings In view of the judge's crediting Foreman Lawrence's specific denial that he threatenedt employee Sulton that he "would get him back," we rind it unnecessary to.pass on the judge's alternative analysis regarding the significance of Lawrence's alleged remarks a In adopting the judge 's recommendation to overrule the objection based on Foreman Bynum 's threats to employee Derrick , we note that Bynum's remarks, which were made in retaliation for Derrick 's having engaged in the protected concerted activity of registering a complaint about the conduct of a supervisor, were not likely to have had an impact on the election so as to warrant its being set aside. The threat of retalia- tion was limited to one foreman against one employee , Derrick There is no evidence that Derrick told any employee other than Sutton , an open union advocate, about the threat or that the incident otherwise spread to others in the voting unit In fact , Derrick and Sutton pursued the matter by informing a union representative and the Employer's director of labor relations Accordingly, given the size of the unit ( 1050 employees) and the substantial margin by which employees voted against representation, we find that this single instance of conduct that could be found violative of Sec 8(a)(1) is not a sufficient basis on which to set aside the election. Clark Equipment Co, 278 NLRB 498, 505 (1986). 211 elusive representative of these bargaining unit em- ployees. Ronald C Morgan, Esq. for the General Counsel. Leon C. Harmon, Esq. (Thompson, Mann, & Hutson), of Greenville, South Carolina, and Patrick W. McGovern, Esq., of Morristown, New Jersey, for the Employer. Steven K. Leibel, Esq., of Atlanta, Georgia, for the Peti- tioner. DECISION Report on Objections WILLIAM N. CATES, Administrative Law Judge.' A hearing was held at Columbia, South Carolina, on Janu- ary 23, 24, and 25, 1989, before me as the duly designat- ed hearing officer. I. PRELIMINARY STATEMENT Pursuant to a Stipulated Election Agreement approved on September 13, 1988,2 a secret ballot election was con- ducted on October 19 and 20 by agents of the National Labor Relations Board among the employees in a unit found appropriate.3 The results of the election conducted among the approximately 1050 eligible voters reflects 466 votes cast for and 558 against the Petitioner with 3 void ballots, and 5 challenged ballots . The challenged ballots were not sufficient in number to be determinative. Copies of the tally of ballots were made available to all parties. Objections to conduct affecting the results of the elec- tion were timely filed by the Petitioner on October 27. On December 21, having concluded that the objections raised substantial issues of fact and credibility which could best be resolved by a hearing, the Regional Direc- tor issued a Report on Objections, direction, and notice of hearing directing that a hearing be held before a duly designated hearing officer. The Board, as noted else- where in this decision, ordered the Regional Director to obtain the services of an administrative law judge to act as the designated hearing officer and that such officer prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings ' The Regional Director for Region I I of the National Labor Rela- tions Board refused to consolidate the hearing on objections with a hear- ing on a complaint in a related case, Case I1 -CA-12911. The Employer sought special permission to appeal the Regional Director 's refusal to consolidate the two hearings , and in an order dated January 13, 1989, the Board denied the Employer's request holding the Regional Director had not abused his discretion by not consolidating the two matters . However. the Board directed that the Regional Director obtain the services of an administrative law judge to act as hearing officer for the hearing on ob- jections in Case I1 -RC-5527 The Board also directed that the adminis- trative law judge hearing the objections should also be the judge who hears the complaint allegations in Case I1 -CA-12911 The Board specifi- cally directed "that the administrative law judge issue a separate decision on the election objections as expeditiously as possible after the close of the hearing on objections " 2 All dates are 1988 unless otherwise specified a The unit agreed to be appropriate is. All production and maintenance employees employed at the Employer's Columbia, South Carolina, facili- ty; excluding temporary employees, clerical employees, technical and professional employees, instrument technicians , and guards and supervi- sors as defined in the Act 296 NLRB No. 35 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of fact, and recommendations to the Board as to the dis- position of the Petitioner's objections. All parties were represented at the hearing and were afforded full and complete opportunity to be heard, to examine and cross-examine witnesses, and to present evi- dence pertinent to the issues.4 11. THE OBJECTIONS A. Text of the Objections The text of the Petitioner's objections is as follows: I The Employer and/or agents of the Employer threatened employees with loss of benefits in order to influence the outcome of the election. II The Employer and/or agents of the Employer threatened eligible voters with the futility of the collective bargaining process in order to influence the outcome of the election. III The Employer and/or agents of the Employer interfered with the legal and proper distribution of union literature in order to influence the outcome of the election. IV The Employer and/or agents of the Employer threatened employees with the inevitability of strikes and violence in order to influence the out- come of the election. V The Employer and/or agents of the Employer in- terrogated employees regarding their union activi- ties in order to influence the outcome of the elec- tion. VI The Employer and/or agents of the Employer threatened employees for engaging in protected ac- tivities in order to influence the outcome of the election. 4 The Petitioner sought at trial to expand the scope of this hearing beyond the limits set forth by the Regional Director and the Board I did not permit the Petitioner to do so It is clear the Regional Director and the Board intended that the hearing herein deal only with the specific ob- jections set forth Furthermore, I have been governed with respect to the scope of the evidence for each particular objection by comments of the Regional Director on each of the objections in his report on the objec- tions Limiting the scope of a hearing on objections with consideration given only to certain evidence has been approved by the Board and courts See, e.g. Monark Boat Co, 276 NLRB 1143 fn. 3 (1985), enfd. 800 F.2d 191 (8th Cir 1986) VII The Employer and/or agents of the Employer threatened job reevaluations in order to influence the outcome of the election. VIII The Employer and/or agents of the Employer threatened employees with more stringent working conditions in order to influence the outcome of the election. IX The Employer and/or agents of the Employer denied overtime to pro-union employees in order to influence the outcome of the election. X The Employer and/or agents of the Employer al- lowed non-union employees to actively campaign against the union on company time while denying pro-union employees the same right. By the above actions and conduct and by other acts and conduct not specifically delineated in the preceding paragraphs, the employer, its owner, offi- cers, managers, supervisors, agents, representatives, and/or other persons acting on its behalf, denied its employees an opportunity to make a free and un- trammeled choice in the election. B. Order of Consideration I have considered the Petitioner's objections in the same order that the Regional Director did inasmuch as the scope of the hearing was limited to certain evidence outlined for consideration in the Regional Di'rector's report. The Regional Director in his report also noted that he was only considering incidents which occurred between August 15, the date of the filing of the petition, and October 19 and 20, the dates of the election. III. FACTS AND CONCLUSIONS A. Objection I The Regional Director in his report ordered consider- ation of the following evidence with respect to Objection I: Objection I.• In this objection, the Petitioner alleges that the Employer, through its supervisors, threatened em- ployees with a loss of benefits if the Petitioner won the election. It is alleged that on or about October 17, Supervisor Mike Cromer told an employee that benefits would be lost in contract negotiations. An- other employee alleges that he was told on a regu- lar basis for a three-week period before October 19 and 20, by Supervisor Ralph Barnadow that the Union would not get more benefits for the employ- ees and that the employees would lose the benefits they had then. A third employee also alleges that at ALLIED-SIGNAL 213 some unspecified date between August 15 and Octo- ber 19, Supervisor Bill Hutto told the employee that bargaining would begin from scratch and that bene- fits would be lost. Also, a fourth employee alleges that on or about September 1, Supervisor Rich Stacey told the employees that benefits would be lost if the Union was voted in. The Employer denies all allegations in this objec- tion.8 1. Facts The Petitioner presented 14-year employee and active union supporter Wise Pillow Jr., who gave testimony with respect to that portion of Objection I that pertains to Relief Foreman William Hutto. Pillow testified that in late September he happened to be in the spinning room office at the plant and had a conversation with Hutto about the Petitioner 's ongoing campaign. Pillow stated that after they discussed the pros and cons of a union coming in at the plant, Hutto told him everything would change if a union did come in "we would have nothing ... all our benefits, pay, work, the scope of our work and everything went back to the bargaining table and . . . started . . . from scratch." Pillow said he disagreed with Hutto and told him he did not think they would lose benefits once a union came in. According to Pillow , Hutto said "yes, you do . . . ev- erything goes back to square one and you start from scratch and negotiate everything." Pillow stated Hutto said that if a union came in , they may negotiate to drop back to three patrollers instead of four, thus making the patroller's job more difficult. 6 Pillow said the conversa- tion ended with Hutto asking him to think about the de- cision he had to make about the Petitioner. Relief Foreman Hutto said he has known Pillow for approximately 10 to 12 years and was fully aware from as early as midsummer that he supported the Petitioner. Hutto stated his supervisor , Jim Lewis, had instructed him not to waste his time talking with employees who did not want to talk with management about the Peti- tioner's campaign and not to waste his time talking to those it would not do any good to talk with. Hutto stated that knowing that Pillow supported the Petitioner from early on in the campaign , he did not talk with him about the Petitioner or about what would happen if a union came in at the Employer.? Although Pillow may not have been precise with re- spect to when his conversation with Hutto took place, I am fully persuaded he had such a conversation as he tes- tified to and that it took place within the critical period. Pillow impressed me as an unreservedly honest witness 5 It is recommended that those portions of Objection I that relate to Supervisors Mike Cromer and Ralph Barnadow be overruled in that no evidence was presented by the Petitioner to support the contentions with respect to those two supervisors. 5 At the time Pillow was a patroller for the Employer T Hutto specifically denied ever saying anything to Pillow to the effect that if the Petitioner came in at the Employer , the employees would end up with nothing, that bargaining would begin at scratch , that the employ- ees would go back to square one, that the employees would not have any benefits, or that Pillow's job would become more difficult who attempted to testify truthfully and with fairly good recollection. Accordingly, I credit his testimony. 2. Discussion The thrust of Hutto's remarks, as credibly testified to by Pillow, was that if the Petitioner came in at the plant, the employees would lose even the benefits they already had. Hutto told Pillow the employees "would have noth- ing," that all pay, benefits , and even the scope of the em- ployees' work would be placed on the bargaining table and would start from scratch . When Pillow expressed his disagreement with Hutto's assessment of negotiations, Hutto reiterated his assertions by telling Pillow employee benefits would be lost and everything would be at square one where negotiations would start from scratch. It was against the above backdrop that Hutto told Pillow his own job might be made more difficult by unionization in that the number of employees performing his type of work might be reduced in negotiations . 8 The Board has held it to be objectionable conduct for an employer in the course of an organizing campaign to tell employees bargaining would start from scratch , from the bottom up, or at square one if, as in the instant case, the thrust of the remarks is to connote the idea that the employer would discontinue existing benefits or that existing bene- fits would be automatically lost. See, e .g., National Mi- cronetics, 277 NLRB 993, 1004 (1985), and Buckeye Tempo Gamble-Skogmo, Inc., 240 NLRB 723, 725-727 (1979). Hutto's remarks far exceeded a statement that unionization does not mean an automatic increase in ben- efits. His remarks, taken in context, clearly threatened a loss of existing benefits as a result of unionization. While I find Hutto's remarks constitute objectionable conduct, I am unwilling to conclude that such remarks, standing alone, interfered with the election inasmuch as there is no record evidence that his remarks were com- municated to any other employees. Hence, in a unit as large as the one herein (approximately 1050 eligible voters), it would be unreasonable to conclude Hutto's isolated remarks interfered with the conditions sought by the Board in which to conduct representation elections. Accordingly, I shall recommend the portion of Objec- tion I that relates to Relief Foreman Hutto, when consid- ered in isolation, be overruled. I shall, after considering all of the objections, deter- mine whether this incident, taken in conjunction with other incidents found herein , warrant recommending that the election be set aside and a new election directed based on the overall conduct of the Employer during the critical period. 3. Facts The Petitioner called 10-year employee and known union supporter James Newton as a witness in support of 8I am not unmindful that Hutto claimed there were more patrollers than Pillow testified to. This discrepancy between the two does not, in my opinion , detract from Pillow's overall credibility. I do not find it nec- essary to decide how many patrollers were in the area or on the shift that Pillow worked on 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that portion of Objection I that relates to Shift Foreman Rick Stacey. Newton testified that in September,9 Stacey invited him to his office where the two of them while alone spoke about the Petitioner . Newton said he explained to Stacey that the vacation pay and the weekly medical in- demnity issues were the main reasons the Petitioner had been brought in at the Employer. According to Newton, Stacey said the 2-percent vacation pay bonus and the 100-percent weekly medical indemnity benefits that had been in effect "until several months prior to the union campaign" were strictly nonnegotiable items that would not be placed on the negotiating table at all. Newton as- serts they had other "general chit-chat" about the de- partment that did not pertain to the Petitioner during their 10-15-minute meeting. Newton asserted on cross-examination that Stacey "ba- sically was just asking me why I supported the Union" during their conversation. Stacey testified he had a conversation with Newton on September 3, but that it was at his (Stacey 's) home. Stacey said Newton told him he was visiting relatives on Stacey's side of town and just decided to stop by. l o Stacey testified he and Newton talked approximately an hour about their work and about the union situation at the plant." Stacey stated they talked about the 2-percent vacation bonus that had been but no longer was in effect at the Company.' 2 Stacey said he explained to Newton that at the Employer's Chesterfield plant and other unionized locations, the employees had gone on strike over the 2-percent vacation pay bonus but had returned to work without obtaining that particular benefit because it cost the Employer too much, and the Employer had eliminated it for that reason . Stacey could not recall the 100-percent weekly medical indemnity benefit being dis- cussed. He stated Newton asked him how he felt about a union. He said he told Newton he was not supportive of a union and talked about the benefits the Employer al- ready provided the employees. According to Stacey, they did not talk about negotiations or strikes. I credit Stacey's account of his meeting with Newton. The soft-spoken Stacey testified to details about the Sat- urday meeting regarding his wife being at home prepar- ing for work and their children being out of school that persuaded me his recollection with respect to the date and details of the meeting were, as best he could recall, accurate. 9 He could not be more specific on the date but believed it was prob- ably in mid-September 10 Stacey said Newton had visited him at his home on three other oc- casions during the year Stacey said he invited Newton to his home on one such occasion to see a new camper he had purchased that Newton wanted to see On the two other occasions Newton dropped in unan- nounced according to Stacey. I I Stacey said that when employees dropped by his home, the only subject they had in common was work so work was always discussed 12 Stacey stated the 2-percent vacation bonus, when it was effective, was that employees could either have pay for a straight 40-hour week or 2 percent of their previous year's earnings, whichever was larger, as va- cation pay. That benefit was discontinued by the Employer in 1987 4. Discussion Based on the credited testimony set forth above, I find no 10-15-minute office meeting between Newton and Stacey as described by Newton took place . In the meet- ing that did take place between the two of them , Stacey simply attempted to explain why the Employer had, some time earlier and before the advent of the Petitioner, discontinued the vacation bonus benefit for its employ- ees. Nothing in the conversation rose to the level of pro- hibited or coercive conduct on the part of Stacey. The credited evidence establishes that the subject of negotia- tions was not even mentioned at the meeting. I recommend the portion of Objection I that relates to Shift Foreman Stacey allegedly telling employees that benefits would be lost if the Union was voted in be over- ruled. In light of all the dispositions set forth above, I recom- mend Petitioner's Objection I be overruled entirely. B. Objection II The Regional Director in his report ordered consider- ation of the following evidence with respect to Objection II: Objection II: This objection alleges that the Employer's super- visors created an impression of futility for the em- ployees to select the Petitioner to represent them. In support of the objection, an employee alleges that on October 18, the employee was told by Su- pervisor Ralph Barnadow that nothing could be gained through collective bargaining. Another em- ployee alleges that the employee was told at some unspecified time between August 15 and October 19, by management person Jerry Butler that the Pe- titioner could not get anything for the employees. The Employer denies all allegations in this objec- tion.'3 1. Facts The portion of Objection II that relates to the labor relations director for the engineered materials sector, Gerald Butler, is being considered at this point with alle- gations set forth under the objection "Other Acts and Conduct" that relates to Butler inasmuch as some of the evidence presented in support of both objections is inter- twined. The Regional Director ordered a hearing with respect to whether Butler told employees it would be futile for them to select the Petitioner to represent them because the Petitioner could not do anything for them and whether Butler solicited grievances from employees during employer conducted meetings and whether he asked the employees to give the Employer a year to cor- rect the problems. Four witnesses called by the Petitioner gave testimony that touched upon one or both of these objections. Ten- 13 It is recommended that the portion of Objection II that relates to Supervisor Barnadow be overruled in that no evidence was presented by the Petitioner for consideration with respect to that supervisor ALLIED-SIGNAL 215 year employee and known union supporter James Newton testified he attended an employee meeting 14 conducted by Butler in early October . Newton testified: [Butler] proceeded to tell us that the reason that he was there was due directly to the Union activity at the plant, that fact that the Union-the plant had remained union free for twenty-seven (27) years, had gotten the attention of Corporate and that's why he was down here, to find out what type of problems, if any, there were in the plant. According to Newton, Butler then opened the floor for questions. On cross-examination, Newton stated Butler's comments were made in the form of an opening state- ment and that Butler never made or stated that the Em- ployer was going to make any promises to the employ- ees.15 Twenty-three year employee and active union support- er Shannon Ray Dykes testified he attended one of the employee meetings16 held in the maintenance conference room that Butler conducted. Dykes testified Butler start- ed the meeting: Trying to, maybe, uncover what some of the prob- lems were in this plant and a lot of problems that he, obviously, wasn't aware of that we had. He was trying to establish the fact that he thought we had a better relationship in this plant than actually existed. Dykes testified Butler spoke about negotiations: He explained it very simply. He said when you re- ceive a raise package with a Union, you're guaran- teed of getting nothing more than you would have gotten to start with. He explained it as having X number of dollars for a package to be divided, say, a ten percent increase , five percent wages, five per- cent benefits. Through a Union and negotiations, you may decided that you would rather have a seven percent increase in pay and a three percent increase in bonus or whatever . That type of negoti- ations, you could do but, as far as getting anything more from the Union, you would not get anything more. Dykes could not recall if Butler stated that everything was negotiable. Dykes said that after Butler made his comments, he opened the meeting up for questions. Nine-year employee and active union supporter Robert Ray Derrick testified he attended an employee meeting conducted by Butler on October 5. Derrick testified Butler: ... had his little speech and all ready for us and all. And, he got through . He asked us if we had any comments or any questions. 14 Newton estimated 40 to 50 employees attended the meeting 15 Newton stated it was very possible Butler said he was precluded by law from being able to say certain things 16 Dykes estimated 20 employees attended the meeting Derrick testified it was at that point that he spoke up about his shift foreman, Frank Bynum." Thirteen-year employee and active union supporter Claude Sutton testified he attended an employee meeting conducted by Butler in the training room on October 5. Sutton stated: [Butler] didn't really give a speech, so to say. He in- troduced himself and described his job , and opened the floor to questions. When asked what Butler said about the questions , Sutton testified: Well, you know, he'd say he realized there was a communication problem between the employees and supervision and he wanted to do something about it then and hear about it and give us a chance to talk. Labor Relations Director Butler, whose offices are lo- cated in New Jersey, has been in his current position for 5 years and employed by the Employer in various capac- ities for the past 17 years . During those 17 years, he has been involved in 10 to 12 union campaigns, 3 of which occurred in the last 3 years. Butler stated he conducted a series of some 39 employee meetings at the Columbia, South Carolina location of the Employer during the first week in October. Butler stated the purpose of his meet- ings was: To provide the employees with whatever facts and information they felt they wanted to hear from a corporate official so as to enable them to make an informed decision when they voted on the 19th and 20th [of October]. More specifically, Butler stated he made introductory re- marks at each meeting in that he identified himself by telling the employees his job title and position with the Employer and by describing his duties. Butler estimated his introductory remarks took approximately 10 minutes. Butler testified: At the conclusion of my introductory remarks at each of those meetings, I clearly indicated that I could make no promises of any improvements or changes in benefits of any kind , most especially of an economic nature. I then said, having recognized this, I'm prepared to answer questions and give you information and facts that you may want to have with respect to this election. Butler stated that with respect to employees' questions, which came up in about 20 of the meetings, about the negotiating process, he told them: [E]verything was negotiable, wages, fringe benefits, and all other conditions are negotiable matters. Butler recalled that in his meeting with the maintenance employees, the subject of raises was brought up by em- 17 Derrick's comments related to Bynum are the subject of and cov- ered in another of the Petitioner's objections 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee questions and he responded in the following manner: I . . . point[ed] out to the people that at that par- ticular plant, as an example, wages were about ten dollars an hour. Fringe benefits were about four or five dollars an hour which amounted to a labor cost of about fifteen dollars an hour . So, now as a conse- quence of a union being in here, there is no guaran- tee that that fifteen dollars an hour would be in- creased nor was there any guarantee that the wage- fringe benefit profile would remain the same, that these were all matters subject to negotiations. Butler said he pointed out in at least one of the meet- ings that if the Petitioner 's demands exceeded what the Employer was prepared to do, then the Employer would be faced with making a decision as to whether or not it could provide the increase. Butler testified that when the subject of communica- tion problems between the employees and supervision came up through questions at the meetings , he responded by saying it was something he was now mindful of. Butler said he reminded the employees of the election date and explained the election procedure to them. I credit Labor Relations Director Butler's recitation of what took place in the 39 meetings he held with employ- ees during the first week in October. Butler impressed me as a careful , articulate witness who had extended ex- perience in labor relations. I am convinced he was knowledgeable concerning what was and was not per- missible in the election campaign based on his experience over the years in 10 to 12 such campaigns , 3 of which occurred in the last 3 years . The basic format Butler as- serts he utilized was not really disputed by any of the witnesses called by the Petitioner . Employee Newton, for example, corroborated Butler's testimony that he began his speeches by making opening remarks and then opening the floor for questions or comments and that he did not make any promises in his opening remarks. I am persuaded the witnesses called by the Petitioner with re- spect to their meetings with Butler either misunderstood what they heard or were simply unable to accurately recall what took place at the meetings . Employee Dykes, for example, stated Butler started the meeting he attend- ed "trying to, maybe uncover what some of the prob- lems were in this plant." I am persuaded Dykes gave his perception of what Butler was attempting to do rather than giving an account of what Butler said . When Dykes testified regarding Butler's comments about negotiations, I am persuaded he again testified regarding his percep- tion of what Butler said rather than giving an actual ac- count of what was said . Employee Derrick's recall of the meeting was in very general and conclusionary terms- he simply stated Butler had his little speech ready for the employees and then opened the floor for questions or comments. 2. Discussion The credited facts simply do not establish that Butler told employees in any of the meetings he conducted that the Petitioner could not get anything for them. What Butler did tell the employees was the Petitioner could not guarantee that wages would increase or that the fringe benefits profile would remain the same. He ex- plained those were matters that were subject to negotia- tions. Butler made it clear to the employees that "every- thing was negotiable, wages, fringe benefits, and all other [working] conditions." Accordingly, I recommend the portion of Objection II that pertains to Butler allegedly creating an impression of futility among the employees for selecting the Petitioner to represent them in that the Petitioner could not gain anything for them be overruled. There was absolutely no evidence presented by the Pe- titioner that Butler ever asked the employees to give the Employer a year to correct any problems that might exist at the Employer . Thus, I shall examine the evidence with respect to Butler asking the employees at each of his meetings if they had any questions and consider whether asking for any such questions constitutes solicit- ing grievances from the employees with an eye toward remedying the grievances . I am persuaded that when Butler's remarks are viewed in context, they do not con- stitute soliciting grievances with an implied promise to remedy them . First, Butler clearly informed the employ- ees he could not make any promises of any improve- ments or changes in benefits and it was only with that understanding that he would listen to any questions or comments they might have. Thereafter, when questions were asked about, for example, the negotiating process, Butler informed the employees everything was negotia- ble. When he was asked about wage increases, he simply informed the employees the Petitioner could not guaran- tee increases. When asked about a lack of communication between employees and supervisors , Butler responded it was something he was as of that time mindful of. Noth- ing in Butler's comments could reasonably be interpreted as implying the Employer would remedy any of the problems or complaints voiced by the employees. To the extent that by a manager or supervisor simply asking at employee meetings if employees have any questions con- stitutes soliciting grievances an employer may rebut any implied promises contained therein to remedy such grievances by establishing the employees were told, as they were in the instant case, that they were not being promised anything . See, e.g. Okun Bros Shoe Store, 275 NLRB 1019 ( 1985), and Uarco, Inc., 216 NLRB 1 (1974). Accordingly, I recommend the portion of Petitioner's objection entitled "Other Acts and Conduct" that per- tains to Labor Relations Director Butler soliciting griev- ances and asking employees to give the Employer a year to correct the problems be overruled. In light of the dispositions set forth above, I recom- mend Petitioner's Objection II be overruled entirely. C. Objections III and X The Regional Director in his report ordered consider- ation of the following evidence with respect to Objec- tions III and X: Objections III and X.• The Petitioner alleges in these objections that Employer supervisors disparately enforced the Em- ALLIED-SIGNAL 217 ployer's no-solicitation/no-distribution rule. An em- ployee alleges that near the end of August or early September, Supervisor Clayton Odor refused to allow the employee to solicit for the Union on Company time while allowing non-union employees to do so. In addition, an employee alleges that during the week before October 19, Supervisor Mike Cromer told the employee to take a Union badge off. A third employee alleges that during the month before the election, Supervisor Candy Kinsey denied pro-union employee requests to get off work to hand bill while permitting anti-union employees to get off work to hand bill. The Employer denies all allegations in these ob- jections.18 1. Facts The Petitioner presented 13-year employee and known union supporter Douglas Dyer in support of the portion of Objections III and X that relates to Shift Foreman Clayton Odor. Dyer stated that probablyt° in late August as he was leaving the break area after having gotten a drink that Shift Foreman Odor informed him he had noticed him in the break area getting water and talking to other em- ployees and that "he could no longer talk to other em- ployees when . . . in the break area to get water." Dyer stated it was during work time when Odor spoke with him. Odor recalled speaking with Dyer as well as other em- ployees20 in either late July or early August about taking water breaks during working time . Odor testified about his conversation with Dyer as follows: I covered with him that if they were to go into the break area and get water that they should limit the time that they spent in the break area while not on break time. he had discussed the incident with Supervisor Jim Lewis and it had been decided they were not going to do any- thing about the solicitation but they were continuing to review the fact Dyer had used profanity in talking with Odor. Odor testified he observed Dyer on the spinning room floor with some large rolled up union stickers which he gave to employee Vaughn as Vaughn was working. Odor said he asked Dyer what he was doing with the papers and Dyer told him he did not know what he was talking about. Odor said he asked Dyer a second time and got the same answer.22 At that point, I needed to make a decision. I in- formed him that he was violating Allied's solicita- tion nondistribution policy and that I would get back with him. At that point, he got upset and I quote, `You don't have to be an asshole23 just be- cause I was giving Pat Vaughn some papers back.' I, then, informed him that he was not cooperating and that he had not let me know that . I went up on the catwalk and talked to Pat Vaughn for a while and she confirmed his story. At that point, I told Mr. Dyer that he was not violating the solicitation/nondistribution policy and and that he could forget what I had said. Odor testified no discipline of any kind was given Dyer as a result of this incident. Although there is not a great deal of difference be- tween Dyer's and Odor's versions of their two conversa- tions, I credit Odor's testimony . Dyer's answers on cross-examination with respect to the papers dropped by employee Vaughn revealed a more complete account from him of that incident and his overall responses on cross-examination tended to support Odor's testimony. 2. Discussion Dyer testified about a second conversation with Odor relating to solicitation which he said took place in mid- September. Dyer testified employee Pat Vaughn dropped some union decals from her tool pouch as she got up on her machine to clean it. Dyer said he picked the decals up and returned them to Vaughn. Dyer stated Odor ap- proached and asked what he was doing with "those papers." Dyer told Odor he was simply returning Vaughn's personal belongings to her. Dyer testified Odor said "no, you weren't, those were Union decals and I know what you were doing, you were soliciting on Company time and I'll get back with you on this matter."21 Dyer stated the following day Odor told him 19 It is recommended that the portion of Objections III and X that re- lates to Supervisor Cromer be overruled in that no evidence was present- ed by the Petitioner for consideration with respect to that supervisor 19 Dyer said he did not want to "obligate " himself on that date 20 The other employees were Bruce Wise , Dick Emmitt , and Ray Bryant 81 Dyer said the Employer always had a policy against solicitation but had never enforced it. He gave two examples of a lack of enforcement. He said each year the Employer allowed volunteer employees to solicit for the United Way He also stated that on the death of an employee's wife another employee had collected money for flowers for the family The Petitioner failed to establish with credible evi- dence that Odor spoke with Dyer about taking water breaks on working time during the critical period herein. Even if it had been established that Odor spoke with Dyer about taking water breaks on working time, there is nothing to indicate any disparate treatment with re- spect to Dyer in that Odor also cautioned at least three other employees at approximately the same time. There is nothing in Odor's comments to the employees that in any way restricted their activities with respect to water breaks other than to ask them not to tarry in the break- room during working time . Thus, there is nothing in his remarks that would rise to the level of objectionable con- duct even if he made them during the critical period. I am also persuaded the plant floor incident between Dyer and Odor involving the union literature dropped by employee Vaughn does not rise to the level of objec- tionable conduct, nor does it demonstrate that the Em- 22 On cross-examination, Dyer acknowledged telling Odor he did not know what Odor was talking about 23 Dyer acknowledged on cross-examination that the conversation became "hot" and that "a lot of words [were] exchanged" and that he referred to Odor as "an asshole." 218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer, through Odor, allowed nonunion employees to solicit on working time while refusing to allow prounion employees that same privilege . 24 It was not unreasonable for Odor to assume Dyer was violating the Employer's no-solicitation/no-distribution rule when he encountered Dyer with union posters on his person in the working area on working time without an explanation. Immediate- ly after Dyer gave Odor an explanation and Odor had an opportunity to verify it he told Dyer he had not violated the Employer's no-solicitation/no-distribution rule and no further action was thereafter taken. Simply stated, there was a failure to communicate between an employee and a supervisor and when they did communicate, the matter was disposed of. Dyer's unrefuted testimony that the Employer allowed volunteer employees to solicit for the United Way and allowed an employee to solicit funds for flowers where an employee had a death in his family does not establish disparate application of the Employer's no- solicitation/no-distribution rule. The Board has long held that solicitations for such purposes are permissible ex- emptions from enforcement of a valid no-solicitation/no- distribution rule. See, e .g., Intercommunity Hospital, 255 NLRB 468, 470 (1981), and Rochester General Hospital, 234 NLRB 253, 259 (1978). Accordingly, I recommend that the portions of Objec- tions III and X that relate to Shift Foreman Odor be overruled. The Petitioner also presented evidence with respect to two alleged incidents where employees solicited orders for Avon products. In that regard, employee Daisy Bass testified employees sold Avon products at the plant. She stated she had received an Avon catalog while on her break time. Employee Bernice Pridgen testified that be- tween August 15 and October 20, she saw employee Betty Miles offer an Avon products catalog to employee Patricia Nicholson but that Nicholson had refused the catalog. Pridgen testified she had also seen Avon cata- logs in the break area and in the work area with employ- ee Betty Miles' name and address on them. She stated she had never seen Miles offer a catalog to anyone other than Nicholson. The record fails to establish that any management or supervisory personnel ever saw, approved, or condoned any such solicitations . Accordingly, I find the Petitioner has failed to establish, based on the above, that the Em- ployer disparately enforced its no-solicitation/no-distri- bution rule. 3. Facts The Petitioner presented 15-year employee Linda Varney as a witness in support of the portion of Objec- tions III and X that pertains to Foreman Candy Kinsey. Varney testified that in early September while at her workstation, fork truck operator Scott Dean asked her who Ann Boozer was. Varney said Dean told her his im- mediate foreman had told him employee Boozer had been looking for him, that she had a package for him. Varney stated that as she was attempting to tell Dean who Boozer was, Foreman Kinsey came up. Varney told Kinsey Dean was trying to find out who Boozer was. According to Varney, Kinsey then told Dean who Boozer was. Varney testified Dean came back a short while there- after and told her the package Boozer had given him contained two "Vote No" shirts and that he was sup- posed to pay an employee $10 for them. Varney was not sure if Foreman Kinsey was anywhere around when Boozer gave the package to Dean. Foreman Kinsey stated she knew Dean and recalled that he asked her to identify employee Boozer for him. Kinsey stated she told Dean which area Boozer worked in and described her appearance . Kinsey stated that was all that was said between her and Dean . Kinsey said she did not see Boozer give anything to Dean. 4. Discussion In the Regional Director's report, he outlined for con- sideration in the instant hearing whether Foreman Kinsey allegedly allowed antiunion employees time off to handbill while at the same time denying that privilege to prounion employees . As is obvious, the above testimo- ny has nothing to do with handbilling. Likewise, the above testimony does not establish that the Employer disparately enforced its no-solicitation/no-distribution rule. All the evidence shows is that an employee asked a supervisor to identify another rank-and-file employee which the supervisor did. There is no evidence the su- pervisor was aware of anything that may have taken place thereafter between the two rank-and-file employ- ees. Accordingly, I recommend that the portion of Objec- tions III and X that relates to Foreman Kinsey be over- ruled. In light of all the dispositions set forth above, I recom- mend Petitioner's Objections III and X be overruled en- tirely. D. Objection IV The Regional Director in his report ordered consider- ation of the following evidence with respect to Objection IV: Objection IV This objection alleges that the Employer created the impression of the inevitability of strikes if the Union won the election. An employee alleges that on or about October 19, Supervisor Lisa Kamier told the employee that if the Union was voted in there would be a strike . Additionally, an employee alleges that during the week before the election, Su- pervisor Odor told the employee if the Union won the election there would be a strike. The Employer denies all allegations contained in this objection.25 24 It is noted that the validity of the Employer's no-solicitation/no-dis- tribution rule was not placed in issue. 25 It is recommended that the portion of Objection IV that relates to Supervisor Lisa Kamier be overruled in that no evidence was presented by the Petitioner for consideration with respect to that supervisor. ALLIED-SIGNAL 219 1. Facts The Petitioner presented 15-year employee Ronald Sulton with respect to the portion of Objection IV that relates to Shift Foreman Clayton Odor. Sulton testified he had a conversation with Shift Fore- man Odor on either August 14, 15, or 1626 which was the first occasion he had worn a patch for the Petitioner at work. Sutton testified Odor told him: [T]hey're going to put you off the job. He said, don't you know them Union people come in, you're going to have to go on strike, and who's going to pay your bills. I said, I don't think the union getting in here, people going on strike. If we do, I think the union will help me with my bills if anything. Sulton said Odor responded by asking if he really be- lieved the Union would help him with his bills . Sulton stated Shift Foreman Lawrence came up and laughed at his suggestion that the Union would help him pay his bills. 2. Discussion I recommend the portion of Objection IV that relates to Shift Foreman Odor be overruled inasmuch as the Pe- titioner has failed through the testimony of Sulton to clearly establish that the incident in question took place within the critical period August 15 to October 20. As- suming arguendo that it had been establised that a con- versation took place within the critical period between Sulton and Odor, I would still recommend overruling this part of Objection IV because I am persuaded Sul- ton's testimony lacks the reliability necessary to base a finding of objectionable conduct on . On direct examina- tion, Sulton appeared to be testifying about two different conversations, one in August and one in October, in which Odor allegedly mentioned the patch he was wear- ing on his shirt for the Petitioner. However, on cross-ex- amination, he appeared to be saying there was only one such conversation. Another concern raised about the re- liability of Stilton's testimony was that he testified on cross-examination he was stating the exact words of Odor which were not precisely the same words he had testified to on direct examination. Further, Sulton said he really was not listening to what was being said in the conversation he contends took place because he "felt of- fended" by it and "I didn't want to hear the conversation so I wasn't paying any attention ." Additionally, Sulton appeared confused while testifying and his testimony at times was confusing. Furthermore, I note Odor could not recall having any conversation with Sulton in mid- August and more specifically denied mentioning any- thing to Sulton about Sulton wearing a patch for the Pe- titioner on his clothing. Odor likewise could not recall ever saying to Sulton that any such patch could get him in trouble or of asking him what he would do if the Union went on strike at the Employer. Additionally, Shift Foreman Lawrence did not recall overhearing a conversation between Odor and Sulton in which Odor 26 Sulton said he thought the conversation was on August 14. discussed any union patch Sulton may have been wear- ing. Lawrence denied ever saying anything to Sulton about the Union going on strike or of asking Sulton how he would feed his family if there was a strike. In light of all the dispositions set forth above, I recom- mend Petitioner's Objection IV be overruled entirely. E. Objections V, VI, VII, VIII, and IX The Regional Director in his report ordered consider- ation of the following evidence with respect to Objec- tions V, VI, VII, VIII, and IX: Objections V, VI, VII, VIII, and IX The Petitioner alleges in these objections that the Employer interrogated, threatened job loss, reevalu- ations, and more stringent working conditions to the employees as the result of their union activities. In support of these objections, an employee alleges that on September 13, Supervisor Richard Stuckey threatened, disparaged, and interrogated the em- ployee for supporting the Union . It is also alleged that on or about September 26, two employees were threatened by Supervisor Robert Griffin with re- evaluation of their work performance as the result of their union activities . Another employee alleges that at an unspecified time between August 15 and October 19, Supervisor Wayne Lawrence told the employee that if the Union came in there would be a strike and then threatened the employee with the loss of the employee's job if he supported the Union. Also, an employee alleges that on October 6, Supervisor Frank Bynum told the employee that he would be more closely watched and there would be retaliation for supporting the Union . It is alleged that on August 27, Supervisor Frank Bynum threat- ened to withhold overtime from an employee as a result of his union activities. The Employer denies all allegations in these ob- jections.27 1. Facts The Petitioner called 11 -year employee and prounion supporter Debbie Stanton to testify with respect to the portion of Objections V, VI, VII, VIII, and IX that re- lates to Furnishing Manufacturer Manager Richard Stuckey. It is undisputed that the two of them had two conver- sations-one on the plant floor and one in Stuckey's office-on or about September 13. It appears the meeting on the plant floor came about as a result of a discussion about the Petitioner between Stuckey and Supervisor Jean Pruitt Russell at a local bowling alley. 28 While Stuckey and Russell were dis- 27 It is recommended that those portions of Objections V, VI, VII, VIII, and IX that relate to Supervisor Griffin be overruled in that no evi- dence was presented by Petitioner for consideration with respect to that supervisor. 28 Supervisor Russell is employee Stanton 's mother 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cussing the Petitioner's strength in certain areas at the plant, it was noted the department that Stanton worked in was strong for the Petitioner. Russell told Stuckey her daughter (Stanton) worked in that department . Stuckey was not aware until that time that Russell was Stanton's mother. Russell suggested Stuckey speak with Stanton because she (Russell) had made little progress at persuad- ing her daughter to support the Employer 's position in the union campaign . Stuckey told Russell he would speak with Stanton because he had known her for "quite a while." The next morning or so thereafter Stuckey, while making his rounds through the plant, saw Stanton who told him she had heard he wanted to speak with her. Stuckey acknowledged he did and asked how she knew he wanted to speak with her. Stanton said her mother (Supervisor Russell) had told her. That Stuckey and Stanton thereupon spoke for ap- proximately 10-15 minutes on the plant floor about the Petitioner's organizing campaign is not disputed.29 Stuckey told Stanton he had mentioned to her mother (Supervisor Russell) that he was disappointed she and others were supporting the Petitioner. He also told Stan- ton he had tried to build good relationships with his em- ployees and "to see them supporting the union [was] a disappointment." Stuckey stated Stanton asked him why he should care whether the employees had a union rep- resent them or not. Stuckey told Stanton it made a big difference to him in his job especially with respect to how he could efficiently and effectively deal with his employees. According to Stuckey , Stanton told him she was on the other side of the fence but it was not because of him but rather that she just felt the employees needed more input into how things were done at the Employer. Stuckey told Stanton that although they were on oppo- site sides of the question, he would not hold it against her and he hoped she would not hold it against him, but "that we will definitely be fighting each other on these particular issues." Stuckey told Stanton it's very similar to a ballgame or any time you get on the playing field that "it's time to kick ass when the whistle blows."30 Stanton told Stuckey she would like to talk more on the subject with him later. Stuckey told her that whenever she wanted to, just let him know and ended their plant floor discussion . Thereafter, Stuckey continued his rounds of the plant. 2. Discussion This shop floor conversation between two individuals admittedly of opposite views with respect to the Peti- tioner's campaign is troubling in at least one major aspect. Stuckey, after discussing the pros and cons of unionization with employee Stanton , told her the ball- game was on and it was time for him to "kick ass." While it may not be reasonable to infer he meant to take physical action against employees for supporting the Pe- titioner, it is reasonable for Stanton, or anyone else that learned about the comments , to conclude he would take retaliatory action of some kind against employees for supporting the Petitioner. Although I find Stuckey's comments to be threatening and the kind that create an atmosphere of fear and coercion , I am unwilling to con- clude that his comments , standing alone, constituted ob- jectionable conduct that interfered with the employees' exercise of a free choice in the representation election. I so conclude because there is no evidence his comments were ever made known to any other employee than Stanton. Accordingly, I recommend that the portion of Peti- tioner's Objections V, VI, VII, VIII, and IX that per- tains to Stuckey's plant floor conversation with Stanton be overruled. 3. Facts It is undisputed that later that same morning, Septem- ber 13, Stanton sought and obtained permission through her foreman, Howard Brown, to meet with Furnishings Manufacturing Manager Stuckey in Stuckey's office. Only Stuckey and Stanton were present at the meeting which lasted for approximately 1-1/2 to 3 hours.31 Stuckey stated that after Stanton came into his office, she seemed concerned that others might see her there or hear what was being said so he closed his office door. Stanton first asked Stuckey about a rumor that had been circulating in the plant that concerned Stuckey's position on the Employer's most recent benefits package . Stanton wanted to know if the rumor was true that Stuckey had attempted to have the Employer increase the employees' pay or reinstate their weekly indemnity benefits.32 Stuckey told Stanton the only thing he had said to man- agement after the Employer announced its most recent employee benefits package was to ask if the Employer would reconsider on the question of the weekly indemni- ty.33 Stuckey said he and Stanton then talked about the Em- ployer's pension plan and whether the Employer was going to increase the number of points needed to qualify for a pension. Stuckey told Stanton he knew of no pro- posed changes in the pension plan but that it was negoti- ated every 5 years and any changes to it would not come up until 1992. Stanton told Stuckey that if the employees were represented by a union , they would have input into any changes the Employer made in the pension plan. Stuckey told Stanton the Union already had input be- 29 1 have credited Stuckey 's account of his two meetings with Stanton because his recall was superior to that of Stanton Stanton had to be lead by Petitioner's counsel throughout her testimony and she continously gave responses such as "I can't really remember." and "I can't remember what to say after that." Stanton, who was also very nervous during the trial, had to be cautioned by the court about summarizing her responses rather than starting what was said between Stuckey and her. 20 Stanton described this part of the conversation as Stuckey saying, "that right now was the time to kick ass before the Union got in at the plant " 31 As noted earlier, I have set forth the details of these meetings as de- scribed by Stuckey with , from time to time, notations regarding the way Stanton described the meeting 32 The weekly indemnity that Stanton spoke about was that prior to the Employer's latest benefits package , employees were paid 100 percent of their wages while on medical leave Under the latest package, employ- ees are only paid 60 percent of their wages while on medical leave. OZ Stanton's testimony was that he simply told her he had tried to get management to change its mind or at least to make some additional con- cessions in its latest benefits package ALLIED-SIGNAL 221 cause at those locations of the Employer that were unionized they negotiated about the development of the plan which was the same plan utilized by the Employer at its nonunion facilities including Columbia.34 Stuckey testified Stanton then asked why he personal- ly did not want a union at the Employer . 35 Stuckey ex- plained to Stanton the biggest reason he did not want a union was he felt it took flexibility away from him in making job assignments . Stuckey talked about his experi- ence at another location where unionization precluded managers from moving employees from one job to an- other. Stuckey testified Stanton asked why the Employer did not have some procedure for handling employee griev- ances. Stuckey explained to Stanton the Employer did have a procedure whereby employees could talk to their immediate foreman or with him as they had done on nu- merous occasions . Stuckey said he gave Stanton an ex- ample of how ineffective a grievance procedure could be at a unionized facility . He related how at the Employer's Chesterfield plant, he and others had run some tests in the manufacturing area and a supervisor simply touched a reset button on a counter at the end of a piece of equipment returning the counter back to zero and a rank- and-file employee thereafter filed a grievance contending that the 5-10 seconds taken in resetting the button was unit work. Stuckey told Stanton the grievance on that matter took approximately 2 hours twice for three to four supervisors and hourly employees along with a union steward only to have the Employer end up paying the employee 1/10th of an hour's wages in overtime.36 Stuckey mentioned to Stanton the relationship be- tween supervisors and employees might well be different from what it currently was if the Employer was union- ized. According to Stuckey, Stanton asked about the status of strikers if there was a strike at the Employer . Stuckey told Stanton the Employer could replace economic strik- ers if they were on an authorized strike . Stanton ex- pressed the view the Employer could not replace em- ployees but Stuckey again said it could do so. Stanton then asked what if the employees were on an unfair labor practice strike . Stuckey told Stanton it was his un- derstanding the Employer could not replace unfair labor practice strikers . Stanton told Stuckey that if the em- ployees went on a strike, it would be an unfair labor practice strike instead of an economic one. Stuckey told her if the employees went on a strike over wages and benefits, it would be classified as an economic strike.37 94 Stanton acknowledged Stuckey said the pension plan only came up every so many years 35 Stanton asserts Stuckey asked her why she felt the employees needed a union. Stanton's testimony on this point was one of those criti- cal places were Petitoner's counsel had to ask leading questions that de- tracted from the reliability that could be placed on her responses 36 Stanton, who could not recall much of what was about grievances, did state Stuckey said unionized grievance procedures resulted in third parties having to be present and were time consuming and aggravating 37 Stanton asserts Stuckey told her if there was a strike, it would be an economic strike, but that she told him it would be an unfair labor prac- tice strike Stanton stated Stuckey told her that if she went on an eco- nomic strike, she could be replaced and not promised her job when the strike was over but he hoped she would be one of the ones that would come back to work Stuckey stated that near the end of the conversation, he told Stanton the Employer would appreciate her voting no in the upcoming election. Stanton told Stuckey she would vote yes and he could vote no. Stuckey said he wished he could vote no.38 Stuckey told Stanton that ever how she voted would be a secret because when she closed the curtains to the voting booth, she would be the only one that would know how she voted. Stuckey told Stanton that if chosen, the Petitioner would represent all the employees at the Employer in- cluding those who did not pay union dues. 4. Discussion I am persuaded that nothing that was said in the lengthy office discussion between Stuckey and Stanton was unlawfully coercive or created an atmosphere of fear that would interfere with the free choice of employ- ees in the representation election . The credited testimony reflects Stuckey did not question Stanton as to why she felt the employees needed a union but rather it was Stan- ton who asked Stuckey why he personally did not want a union. Stuckey's response thereto was in no way coer- cive. Further, their discussion of the Employer's pension fund and the fact that the Petitioner had input at those locations of the Employer that were unionized likewise did not constitute coercive conduct on Stuckey's part. Stuckey's comments on job assignments, grievance pro- cedures, the relationship between supervisors and em- ployees in a unionized facility, and the status of strikers do not appear to have been coercive or to have created an atmosphere of fear such as to render a free choice by employees in the election impossible . There was nothing coercive about Stuckey's soliciting Stanton to vote for the Employer in the election. Accordingly, I recommend that the portion of Objec- tions V, VI, VII, VIII, and IX that relates to Stuckey's second meeting with Stanton be overruled. 5. Facts Employee Sulton testified with respect to the portion of Objections V, VI, VII, VIII, and IX that pertains to Shift Foreman Wayne Lawrence. Sulton stated that somewhere around August 16 to 19 he talked with two of his friends and fellow workers, Bruce Wise and Freddie Jackson, in the locker room next to the foremen's office at the plant. Sutton said he happened to be in the locker room to get his "stuff." Sutton said the three of them were discussing the over- time roster for their department and the fact they per- ceived the Employer had been giving all overtime to one employee on their shift. Sutton testified he told his friends, "that's their way of throwing the rock and hiding their hand" and his wearing a union patch was his way of doing the same thing . Sutton stated by that Time Shift Foreman Lawrence had walked in and said while pointing his finger at Sulton, "we'll get you back. That's the way you feel, we'll get you back." Sulton said they all then left the locker room. On cross-examination, Sulton stated Lawrence appeared at the door opening to 38 Stanton testified Stuckey said he wished he could vote no five times 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the locker room before he had finished his comments about throwing the rock and hiding one's hand . Sulton further stated on cross-examination , "I just finished my conversation, what I said-so I figured he probably heard the first part of it anyway." Sulton acknowledged on cross-examination that the foreman generally came into the locker room "to tell us what's going on that day, what we've got to do." Shift Foreman Lawrence denied ever overhearing Sutton say anything about "that's their way of throwing the rock and hiding the hand." Lawrence said he did not even understand the meaning of that saying . Lawrence specifically denied ever saying to Sutton that he would get him back. I credit Lawrence's testimony. into the office, walked to the back of the office and he started cussing . He-first he said he was tired of the God damn grievances and the shit and said he was going to get my fucking ass. He said if I kept fucking up-I mean, if I fuck up, he was going to bust my ass and he will fucking get me . Then, he kept on and he called me a fucking bitch, that I will fucking get you and he kept on cussing. When he got through, I turned and started walking out the door and he said, remember what the fuck I said. You fuck up one time and I'm going to have your ass. I went on out the door and started walking back to where I was, I glanced behind me and Frank was still behind me. 6. Discussion I recommend the portion of Petitioner's Objections V, VI, VII, VIII, and IX that pertains to Shift Foreman Lawrence be overruled . Even if Sulton's testimony was credited, he is uncertain what, if anything, Lawrence may have overheard . Thus, Sulton could not testify with certainty as to what Lawrence's comments were aimed at or in response to even if Lawrence made such com- ments. As Sulton acknowledged, the foremen regularly went into the locker room to give employees instructions regarding the day's work and it is just as probable that whatever Lawrence said , if anything, was in response to work assignments as opposed to being in response to something he may or may not have overheard about union patches or overtime. This is particularly so when viewed in light of Sulton's testimony that he had "just finished" his conversation with his fellow workers and he "figured" Lawrence "probably" overheard the first part of what he had said to his fellow workers . In sum- mary, even if Stilton's testimony was credited, it would not establish any objectionable conduct on Lawrence's part. 7. Facts The Petitioner presented employee Derrick with re- spect to the portion of Objections V, VI, VII, VIII, and IX that relates to Shift Foreman Bynum 's allegedly tell- ing an employee that the employee would be more close- ly watched and there would be retaliation against him for supporting the Union. Derrick testified that on October 5, he attended an em- ployee meeting called by Director of Labor Relations Butler. Derrick testified Butler "had his little speech" and when "he got through" he asked for comments or questions from the employees . Derrick said he told Butler that his foreman, Bynum, was never in the area when needed, that he would be gone from 3 to 5 hours at a time and if employees needed anything, they had to call another department where Bynum would be drink- ing coffee or whatever. Derrick testified as follows about events that took place the following day, October 6: I got to work and hadn't been there long, about fifteen minutes. I went back down towards the office to get some supplies for my job. Frank [Bynum] came down a center aisle and called me Derrick stated that while Bynum was speaking with him, he was shaking his finger at him "ranting and raving" and "slamming his hand down on the desk." After the incident, Derrick stated he approached fellow employee Claude Sutton and asked him what to do. According to Derrick, Sutton told him to write down everything Bynum said, word for word, and he would call the Union 's organizer on their next break and find out what they should do . According to Derrick, the organizer wanted him to make another copy of what Bynum had said and give it to Butler. Derrick stated he thereafter saw Director of Labor Relations Butler and asked him if he could speak with him after work that day. After work Derrick spoke with Butler in the presence of Sutton and gave Butler a copy of what he contends Bynum said to him. Derrick said Butler read his letter and said , "you know, there wasn't no need, really, for him to come down here if people thought, you know, he would go back and tell every- thing that was told to him , tell it to the management." Labor Relations Director Butler said he did not know employee Derrick before October 6. He did not specifi- cally recall Derrick's presence in one of the employee meetings but he thought that some comments were made with respect to supervisory personnel in the meeting that Derrick attended. Butler acknowledged that the follow- ing day, October 6, Derrick and employee Sutton gave him a 1-page paper on which were written some things he contended had been said to him by Shift Foreman Bynum.39 Butler could not recall what might have hap- pened to the paper or whether he gave it to Bynum. He said he did not, however, discuss the paper with Bynum. Butler stated the only thing he said to Derrick when he gave him the paper was to thank him and to tell him he would keep an eye on the situation. Shift Foreman Bynum denied having any conversation with Derrick on October 6, or at any time in the early part of October in which the subject of grievances was discussed. Specifically, Bynum denied telling Derrick he was going to get him or of saying anything like that to him. Bynum stated he and others in his department used profanity and that Derrick used profanity almost every time he spoke. Bynum testified he learned from several 89 Butler acknowledged that for the most part, the paper reflected what Derrick had testified to as having been said at his meeting with Bynum ALLIED-SIGNAL 223 employees and Foreman Mickey Laird that one of his employees had tried to "crucify" him at a meeting with Butler. Credibility is sharply drawn in issue with respect to Derrick and Bynum . Either Bynum acted in a threaten- ing profane and rambunctious manner or Derrick, utiliz- ing the assistance of Sutton, engaged in a well-thought- out scheme to frame Shift Foreman Bynum.40 Although neither Derrick nor Bynum was overly impressive as witnesses, I am persuaded Derrick had a meeting with Bynum in which Bynum made the comments attributed to him by Derrick. I am persuaded that the well- thought-out scheme theory advanced by the Employer would require a greater degree of sophistication by those involved than was exhibited at the trial herein. I find it is more likely that when Bynum learned of Derrick's com- ments made at a meeting with a corporate official he was displeased with Derrick and made the comments he did as a result thereof. 8. Discussion Although the established facts presented by the Peti- tioner as outlined above do not precisely support an alle- gation that Bynum threatened Derrick with retaliation for supporting the Union, it does establish that Bynum threatened him with closer supervision and with an eye toward retaliating against him because he engaged in the act of protesting to corporate management what he per- ceived to be misconduct by Bynum . I am, however, un- willing as urged by the Petitioner to find that Bynum's conduct standing alone interfered with the atmosphere necessary for employees to make free and uninhibited choices in the representation election . First, there is no showing on this record that any employee knew of Bynum's comments to Derrick other than Sutton. I rec- ognize that others knew that Derrick complained about Bynum in a company held employee meeting but there is no showing that Bynum's comments to Derrick were communicated beyond Sutton . Second, Bynum's threat to more closely observe Derrick with an eye toward re- taliating against him was not as a result of Derrick's sup- porting the Union but rather because he had exercised his concerted protected right to complain about Bynum. Thus, the thrust of Bynum's comments to Derrick in- volved Derrick's complaining about him as a supervisor, not about Derrick supporting the Union . Furthermore, the facts establish Bynum did not retaliate against Der- rick even for complaining about him inasmuch as Bynum, after the event in question, gave Derrick a satis- factory employee review. I therefore recommend that the portion of Petitioner's Objections V, VI, VII, VIII, and IX that relates to Bynum be overruled. I allowed the Petitioner to question employee Kenneth Lee Reavis with respect to comments Reavis attributed to Shift Foreman Bynum . I did so after counsel for the Petitioner asserted at trial that Reavis' comments per- tained to the portion of Objections V, VI, VII, VIII, and IX that related to Bynum allegedly watching an employ- 401 note Sutton was not asked about the Derrick -Bynum incident or whether Derrick asked his advice or assistance on any such incident ee more closely and telling the employee there would be retaliation against him for supporting the Union. A summary of Reavis' testimony set forth below clear- ly shows it did not support the portion of Objections V, VI, VII, VIII, and IX that Petitioner's counsel contend- ed it would . Reavis' testimony alluded to matters outside the scope of this hearing. Reavis testified that Bynum told him sometime after August 15 that if the Union came in , "there wouldn't be any big changes in benefits or pay, that the Company wasn't going to allow any more benefits or pay than we were already getting." Reavis also testified Bynum said "if the Union campaigned" there would be drastic changes but did not say what those changes would be. According to Reavis, Bynum also said that "it was give and take" dealing with the Union but the employees would not gain anything because the Employer was not going to give any more than it already had. It is clear this testimony does not support the Petitioner 's objec- tions with respect to Bynum . Even if I was able to con- sider Reavis' testimony with respect to objectionable conduct in general, I would not rely on it because his re- sponses were elicited primarily by leading questions and he was unable, as demonstrated on cross-examination, to specify a date or even a month when the conversation(s) took place. 9. Facts The Petitioner presented 13-year employee and visible and vocal supporter of the Union, Claude Sutton, with respect to the portion of Objections V, VI, VII, VIII, and IX that relates to Foreman Frank Bynum threaten- ing to withhold overtime from an employee as a result of the employees' union activities. There is no dispute that the need for employees to work overtime on August 27 was raised by Bynum with certain employees on his shift in the breakroom on August 26. Among those employees present when Bynum asked about overtime were Sutton and Kenneth Lee Reavis. Bynum, whose testimony I credit on this particular point, described his efforts as follows:41 Well, I entered the break area to ask people for overtime and I asked two operators , if I'm not mis- taken. I asked two operators. And, I got ready to leave the break area to go ask other people as they fell in [the seniority] line. And Claude [Sutton] asked me "what about me?"42 and, I told Claude at that time "Claude, you realize the reason I'm not asking you right now is because you have more hours accumulated than anyone else. If I get to you, I will come back." 41 Bynum's version of the events in the breakroom on August 26 does not substantially differ from Sutton's and Reavis' versions. 42 Sutton stated Bynum dust looked at him when he entered the break- room and said "it'll be awhile before you get any overtime " without his (Sutton's) asking about overtime Reavis testified Sutton asked Bynum about working overtime Sutton , on the other hand, said he never at any time asked for overtime Sutton stated Reavis asked Bynum if Sutton was not being asked about overtime because he had the greatest amount of accumulated overtime. According to Sutton , Bynum told Reavis that was exactly why he was not being offered overtime at that time 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bynum stated the Employer's overtime policy was based on consideration of essentially two factors-an employ- ee's seniority and accumulated hours of overtime. He stated the most senior employee would be offered over- time first unless the employee had accumulated more hours than anyone else in the department in which case other employees would be offered overtime until the overtime worked by all employees was nearly the same. Bynum specifically stated Sutton was not offered over- time on August 26 because he had accumulated more hours of overtime than any other number one operator on his shift at the time. The Employer's official overtime records support Bynum's testimony. The records show that on August 1, Sutton had 147 accumulated hours of overtime. The two employees with the next greatest amounts of accumulated overtime had 144 hours each as of that date . By August 26, Sutton had 180 accumulated hours of overtime. In August, he had either been offered and accepted or offered and rejected or could not be lo- cated to offer overtime on August 13, 18, 19, and 20. The employee with the next greatest total of accumulat- ed overtime as of August 26 was employee Randy Wheelis who had 172 accumulated hours. As of August 31, Sutton had more accumulated overtime hours than any other number one operator on Bynum 's shift. Bynum stated, and the Employer's overtime records bear him out, that Mike Chandler and Steven Hogg were offered overtime ahead of Sutton during the times under consid- eration herein because they had less accumulated hours than Sutton did. Bynum stated , and again the Employer's overtime records support his testimony, that Sutton was offered 8 hours' overtime on August 30 which he worked on August 31. Bynum stated, and the records bear him out, that in September Sutton was offered and rejected overtime on four separate occasions and was of- fered and accepted overtime on five separate occa- sions.43 From October 1 to 20, Bynum stated, with doc- umentation to back up his testimony , that Sutton was of- fered 8 hours of overtime of which he accepted 5 hours and rejected 3 hours. As of October 20, Sutton had 262 accumulated hours of overtime whereas the employee (Kenneth Reavis) with the most accumulated overtime had 266 hours. 10. Conclusions Notwithstanding the fact Sutton was a visible and vocal supporter of the Union, I am fully persuaded the credited testimony and other record evidence establish that overtime was not denied or threatened to be denied Sutton, or any other employee, as a result of their union activities. Rather, the record demonstrates overtime was administered by the Employer in a nondiscriminatory manner. Accordingly, it is recommended that the portion of Objections V, VI, VII, VIII, and IX that pertains to 99 The Employer's overtime record reflect there was one additional occasion in September when the Employer attempted to, but could not, locate Sutton to offer him overtime. As of the end of September , Sutton had 254 accumulated hours of overtime . The most accumulated overtime by any employee in the department at that time was Randy Wheelis with 262 hours. Foreman Bynum and the assignment of overtime be overruled. In light of all the dispositions set forth below , I recom- mend Petitioner's Objections V, VI, VII, VIII, and IX be overruled entirely. F. Objections, Other Acts, and Conduct The Regional Director in his report ordered consider- ation of the following evidence with respect to "Other Acts and Conduct": Other Acts and Conduct: This objection alleges that the Employer solicited grievances, held a captive-audience meeting on the day of the election, and failed to meet its require- ments under the Board's Excelsior rule. It is alleged that on September 30, management person Jerry Butler solicited grievances from employees during Company meetings and, thereafter, asked the em- ployees to give the Company a year to correct the problems. Also, it is alleged that Supervisor Steve Zagorski held a captive-audience meeting with em- ployees of the maintenance and utility departments on October 20, the second day of the election. In addition, it is alleged that the Employer provided a substantially different voting list with regard to names and addresses than was provided under the Board's Excelsior rule requirements. The Employer denies all allegations in this objec- tion. 1. Facts The Petitioner presented employee Dykes with respect to the portion of the Objection "Other Acts and Con- duct" that relates to Maintenance Superintendent Steven Zagorski's allegedly holding a captive audience meeting with employees of the maintenance and utility depart- ments on October 20. Dykes testified he happened to be in the utilities shop area on October 20 and observed Superintendent Za- gorski standing in the area with approximately seven or eight mechanics having a discussion. Dykes said the only thing he picked up on his way out the door was he heard Zagorski say something about the "National Labor Relations Board in Winston-Salem, North Carolina." Dykes added: "That's all I heard. I don't know what the man was talking about." Dykes acknowledged on cross-examination that it was very possible one of the employees with Zagorski could have been at his work station performing work while the others were around him. Zagorski testified he had no meetings with rank-and- file employees at any time during the week of the repre- sentation election . Zagorski said he had been counseled about the 24-hour rule imposed by the Board and he fol- lowed that rule even to the extent of not holding safety meetings during that time period . Zagorski testified em- ployees tried to speak with him in a group during the period in question but that he stopped them because he did not wish to violate the prohibition against speaking ALLIED-SIGNAL 225 to employees within the 24-hour period. Zagorski's cal- endar, which was examined at length in this proceeding, while reflecting many meetings did not reflect any meet- ings with any employees during the 24-hour period in question. While both Dykes and Zagorski were presentable wit- nesses, I credit Zagorski's testimony that he did not hold any captive audience meetings during the critical time herein. Zagorski testified in a calm, relaxed, articulate, and candid manner which made him a very believable witness. 2. Discussion Even if Dykes' testimony had been accepted, what he testified to does not support the Petitioner 's contention that a captive audience speech within the Peerless Ply- wood Co., 107 NLRB 427 (1953), rule was made. In Peer- less, the Board prohibits speech making to captive audi- ences within 24 hours before the scheduled time for con- ducting an election . In Peerless the Board noted that vio- lation of the rule would cause an election to be set aside if valid objections are filed. The Board reasoned that such speeches on the eve of an election tends to destroy freedom of choice and establishes an atmosphere in which a free election cannot be held . In the instant case, even if credited, Dykes did not know what Zagorski was talking about and he acknowledged the employees may have been working. One could only speculate as to what may have been taking place even if Dykes' testimony had been credited . One could, for example, speculate that since the discussion took place during the early morning hours on the second day of the election that Za- gorski was releasing the employees to go vote in the Board-conducted election. Finally, if Dykes' testimony had been credited, it would not have established objec- tionable conduct under the Board's teachings in NVF Co., 210 NLRB 663 (1974), as contended by the Petition- er. That case stands for the proposition that when an em- ployer during an election campaign calls employees indi- vidually or in small groups to a private area removed from their normal work place and urges them to reject the union, such actions may constitute objectionable con- duct depending on the size of the groups interviewed, the locus of the interview, the position of the interviewer in the employer's hierarchy, and the tenor in the speak- er's remarks. Here, the only thing the Petitioner could have established was that Zagorski said something about the National Labor Relations Board located in Winston- Salem, North Carolina, to a small group of employees. Such would not constitute electioneering in any manner. Accordingly, I recommend the portion of the objection captioned "Other Acts and Conduct" that relates to Za- gorski's allegedly violating the Peerless rule be overruled. 3. Facts The facts are undisputed with respect to the portion of the objection "Other Acts and Conduct" that relates to the Board's Excelsior rule. The Employer through the Board timely supplied Peti- tioner with an alphabetized listing of unit employees by surnames and initials with mailing addresses . The list provided to the Board for its use as the voter eligibility list at the election contained the employees' first or com- monly used names as well as surnames and addresses in order to make it easier for the observers to identify voters as they appeared at the polls. Union Petitioner Representative Michael Black testified without contra- diction that during the preelection conference which was held immediately before the election , he noted 10 to 15 discrepancies between the list provided the Petitioner and the voter eligibility list actually utilized at the elec- tion. He stated the discrepancies he noted were that ini- tials or first names did not correspond between the two lists. A review of the list provided the Petitioner with the one utilized as the voter eligibility list at the election reflects the following differences: List Provided Petitioner Amick, R. E. Boyd, Y. Brazell, D. E. Broach, B. C. Bunnell, A. E. Campbell, M. W. Corbitt, W. J. Crumpton, A. S. Goble, R. S. Hill, J. D. Hingleton, W. R. Hogg, L. S. Smith, R. L. Sulzer, V. M. Tyler, L. A. Collins, V. V. Connor, T. K. Fleming, H. S. King, R. G. Tybrand, J. K. Martin, J. T. Myers, H. B. Price, R. L. Shehon, R. F. Woodward, M. Cannon Jr., M. E. List Provided the Board Amick, Dickie E. Boyd, Fannie Brazell, Elizabeth E. Broach, Carolyn C. Bunnell, Elizabeth E. Campbell, Wayne W. Corbitt, Jean J. Crumpton, Sue S. Goble, Scott S. Hill, Douglas D. Hingleton, Richard R. Hogg, Steven S. Smith, Loretta L. Sulzer, Marie M. Tyler, Ann A. Collins, Victor V. Connor, Kelly K. Fleming, Shea S. King, Ruby Glenell G. Tybrand, Kerry K. Martin, Todd T. Myers, Bernard B. Price, Leon L. Shehon, Floyd F. Woodward, Sara Not on list 4. Discussion Contrary to the contention of the Petitioner, I do not find that the Employer provided Excelsior list (Excelsior Underwear, 156 NLRB 1236 (1966)) was legally defec- tive. There is no contention the list was not timely pro- vided. The list provided the Petitioner contained only one more name than was on the list actually utilized by the Board in conducting the election . The discrepancies noted above primarily involved one initial being different on the list provided the Petitioner from the one utilized at the election in less than 26 of 1,050 names. There is no record evidence to establish that any of the discrepancies interfered with the Petitioner's ability to communicate with the employees in question. The Excelsior rule re- quires that an employer furnish the petitioner a list con- taining all information necessary for expeditious commu- nication with the employees involved . This, the Employ- 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er herein did. The Board in Singer Co., 175 NLRB 211 (1969), held the supplying of surnames with initials and addresses was sufficient to meet the Excelsior require- ments unless it could be demonstrated that such inter- fered with the union's ability to communicate with the employees involved. No such interference has been dem- onstrated in the instant case. Accordingly, I recommend the portion of the objec- tion "Other Acts and Conduct" that relates to the con- tention the Employer failed to provide the Petitioner with a listing of employees that comports with the Board's Excelsior requirements be overruled. In light of all the dispositions set forth above (as well as at Objection II), I recommend Petitioner's objection "Other Acts and Conduct" be overruled entirely. I am persuaded the evidence fails to establish that an atmosphere of fear and coercion was created by the Em- ployer's overall conduct such as to require that the elec- tion herein be set aside . The record demonstrates that only 4 of the approximately 1,050 employees were sub- jected to objectionable conduct by the Employer during the critical period . The election results were 466 for and '558 against the Petitioner . I find the Employer's miscon- duct herein to be de minimis and could not have affected the results of the election. See Clark Equipment Co., 278 NLRB 498, 505 (1986). Accordingly, I recommend that all of Petitioner's objections be overruled and that the re- sults of the election be certified. Within 14 days from the date of issuance of this report, either party may file exceptions (an original and eight copies) with the Board in Washington, D.C. Imme- diately on the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the hearing officer.