American Commercial Bank

National Labor Relations Board - Board Decisions

Nov 23, 1976

226 N.L.R.B. 1130 (N.L.R.B. 1976)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Commercial Bank and Retail Clerks Union
Local 1439 , Retail Clerks International Association,
AFL-CIO. Cases 19-CA-8018 and 19-RC-7640
November 23, 1976
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 19, 1976, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. The Respondent
filed a brief in support of the Administrative Law
Judge's Decision and in reply to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge but
only to the extent consistent with the following.
I. BACKGROUND
The Respondent is a commercial bank with its
main office and various branches in the Spokane,
Washington, area. The Union began organizing its
employees in early July 1975 t and demanded recog-
nition on July 11. On July 16 its demand was denied
and 2 days later it filed its representation petition.
An election was held on September 10 which the
Union lost 18 to 32. Thereafter, the Union filed time-
ly objections to the election and a charge alleging
violations of Section 8(a)(1) of the Act. On Novem-
ber 11, the Regional Director simultaneously issued a
complaint in Case 19-CA-8018, alleging that Re-
spondent violated Section 8(a)(1) by various acts of
interrogation, surveillance, and threats of reprisal
and other coercive conduct, and Section 8(a)(3) and
(1) by promulgating a rule for the purpose of pro-
hibiting its employees from discussing the subject of
union representation among themselves; a report on
objections in Case 19-RC-7640 in which he de-
termined that a hearing was necessary to resolve the
issues raised by the objections which in many in-
stances paralleled the complaint allegations in the re-
1 All dates are in 1975
lated unfair labor practice proceeding herein; and an
order consolidating these cases for purposes of hear-
ing and decision.
In the decision that followed the consolidated
hearing herein, the Administrative Law Judge, while
acknowledging that there were "isolated" and "triv-
ial" instances of interrogation by Respondent, never-
theless concluded that Respondent had not violated
the Act nor engaged in objectionable conduct "suffi-
ciently serious to warrant setting the election aside."
We disagree with both of these conclusions.
II. THE UNFAIR LABOR PRACTICES
A. Interrogation
On or about July 13, the Union sent a letter to unit
employees concerning organization of Respondent's
banks. A day or so later, Robert Simmons, assistant
manager at the Fifth and Washington branch, asked
employee Swagman for a copy of the letter, which
she never produced; inquired about its contents; and
then, in a loud voice, asked the branch employees in
general if they had received a copy of the letter.
A couple of days later, while sharing a ride home
after work with employee Strain, Simmons asked her
about her union activities and sympathies. Strain
passed off the questions though Simmons persisted in
his inquiries for a moment or so.
Also in mid or late July, Glenn Humphrey, manag-
er of the Fifth and Washington branch, asked em-
ployee Strain if she had attended any union meetings
and how other employees felt about the Union.2 At
roughly the same time in a conversation initiated by
employee Nova concerning the Union, Humphrey
asked Nova if a union meeting had been held at em-
ployee "Wanda's" house.'
2 Strain testified that Humphrey asked her if she had attended union
meetings and how she and other employees felt about the Union The Ad-
ministrative Law Judge states that Humphrey categorically denied asking
Strain these questions The Administrative Law Judge then added that
"Strain impressed [ him] that she was testifying truthfully" and that he was
"favorably impressed with the testimonial demeanor of Humphrey" The
Administrative Law Judge did not resolve this apparent credibility conflict
because he concluded that in any event Humphrey's alleged questioning did
not in the circumstances violate the Act, even if it did occur However, as
the General Counsel points out, Humphrey did not, as the Administrative
Law Judge states, categorically deny asking Strain the foregoing questions
Rather he only denied asking her about her union sympathies , but testified
that he did not recall if he asked her about her attendance at union meetings
and about the union sympathies of other employees Consequently, as the
Administrative Law Judge found Strain to be a truthful witness and as
Humphrey did not deny certain of her testimony as indicated, we credit
Strain's testimony that Humphrey questioned her about her union meeting
attendance and the union sympathies of other employees In view of these
findings, we deem it unnecessary to resolve the conflict in their testimony
concerning whether Humphrey also questioned Strain about her own union
sympathies, as any finding based thereon would be cumulative
3 The Administrative Law Judge, apparently in treating Nova 's testimony
as truthful , quoted Nova as stating Humphrey "said it [ the meeting] was at
Wanda's" The Administrative Law Judge had, as to this incident , misread
226 NLRB No. 182
AMERICAN COMMERCIAL BANK 1131
Somewhere about the middle of August, Joseph F.
Atkins, a vice president and manager of Respon-
dent's main office, asked employee Jena Shaw how
she planned to vote in the upcoming Board election.
She replied she really did not know. Atkins then ex-
pressed disapproval of the Union, told Shaw she
should stay out of the whole mess, and indicated fur-
ther disapproval by turning his thumbs down. At-
kins' conduct occurred in association with two con-
versations with Shaw concerning her request for
special consideration for part-time work as she
wished to return to school.
The Administrative Law Judge found that none of
the foregoing interrogations violated the Act as each
was isolated and none contained an explicit threat or
promise of benefit. We are of the opinion he mis-
judged the matter. The questioning was done by
company officers or managers. No proper reason
was ever suggested for the inquiries and, at least in
the case of Atkins, the interrogation was accompa-
nied by management's expression of opposition to
the Union. In view of these considerations and man-
agement's developing antiunion campaign, involving,
as found below, certain other unlawful conduct, we
find that the above questioning of employees did
tend to interfere with, restrain, and coerce employees
with respect to their free exercise of Section 7 rights
and that Respondent thereby violated Section 8(a)(l)
of the Act through (a) Simmons' asking employees if
they had received the Union's letter, and questioning
employee Strain about her union sympathies; (b)
Humphrey's asking Strain if she had attended a
union meeting and how other employees felt about
the Union and his questioning Nova about whether a
union meeting had been held at "Wanda's" house;
and (c) Atkins' asking Shaw how she intended to
vote in the Board election.
B. The "No Union Talk" Rule
In an August 4 memorandum to employees, Presi-
dent Kelly notified them through the use of a ques-
tion-and-answer format that they could express per-
sonal disapproval of the Union in the same manner
and degree as prounion employees could express
their approval, including trying to persuade their fel-
low employees to vote against the Union. He cau-
tioned them, however, that "your activities must be
limited to non-working areas (such as the lunch-
room) and to your own free time (such as coffee
breaks and lunch hour)." Prior to the issuance of this
memorandum there were, insofar as the record
the record , for Nova's testimony is that Humphrey "said was it [ the meeting]
at Wanda'sT'
shows, no restrictions on employee conversations of
any kind at any time and place in the banks,4 and
there is no evidence-or for that matter no claim-
that prounion or antiunion conversation had caused
any job or business disruptions requiring, on that
date or at any other time relevant, restrictions on
such conversation. In view of the foregoing, we find,
contrary to the Administrative Law Judge, that Re-
spondent established and maintained its "no union
talk (and solicitation)" rule for the purpose of inter-
fering with and restraining employees in the exercise
of their Section 7 rights, and thereby violated Section
8(a)(1) of the Act.5 Medley Distilling Company, Inc.,
187 NLRB 84, 87 (1970); The Wm. H. Block Compa-
ny, 150 NLRB 341 (1964).6
C. Threats
1. On or about July 31 employee Chance asked
Clausen, manager of Respondent's Town and Coun-
try branch, about a wage raise . According to
Chance's testimony, Clausen replied that " the raises
are cancelled right now because of the Union activi-
ties under [sic] the employees." Clausen's version of
the incident was that he told her no special increase
could be given "because it was between quarters, be-
cause of the Union situation and the review .. -
would have been in two months." Clausen did not,
however, specifically deny that he had told Chance
wage raises were canceled because of employee
union activities and his relating no special increases
to "the union situation" is, on the contrary, some
support for Chance's version.
The Administrative Law Judge made no credibility
findings concerning possible or partial inconsisten-
cies between Chance's and Clausen's testimony be-
4 Respondent attempted to show that the rule was nothing more than the
continuation of a long-established no-solicitation rule However, such rule,
which seems to have been more a practice than a rule, applied only to
outside solicitations As for the employees themselves , they had always been
free to solicit among themselves for such things as football pools, gifts for
each other , and the like , and there had never been any restriction on their
conversation Thus, the restrictions placed on union conversation and solici-
tations unquestionably constituted a new policy.
S The Respondent contends in defense of the rule that it did not apply to
prounion but only to antiunion conversation Ostensibly that is the case, but
in stating that antiunion conversation was limited to free time and in non-
working areas in the same manner as prounion conversation, Respondent
was in fact announcing and imposing new restrictions on prounion conver-
sation Of course , unwarranted restrictions on antiunion conversation along
would be just as unlawful as such restrictions on prounion or all union
conversation
6 In finding no violation with respect to the "no union talk" rule, the
Administrative Law Judge relied on the Board's decision in Star -Brae In-
dustries, inc. 127 NLRB 1008. 1010-11 ( 1960) We note that in The Wm H.
Block Company, supra . 343, In 6, the Board overruled Star - Brite to the
extent it conflicted with the former case "as to the nature of evidence re-
quired to establish discriminatory motive in adopting and/or enforcing a
no-solicitation rule " The Board also stated there that "[c]ontrary to the
view expressed in Star - Brite, we are of the opinion that such evidence [as
was shown in that case] indicates that such a rule may be unlawful "
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause, in his view, Respondent's conduct was not un-
lawful as Clausen was simply adhering to Respon-
dent's announced policy concerning wage increases,
with the consequence, he concluded, that there was
no unlawful withholding of any increase. The Ad-
ministrative Law Judge, however, misconceived the
situation. The question is not whether the Respon-
dent was justified in failing to give Chance a raise or
even in refusing to consider a special raise for her.
We assume there was no violation in this regard, and
no such violation was alleged. Rather the question is
whether, in turning Chance's request down, Respon-
dent, through Clausen, attempted, whatever may
have been its real reasons, to place the cause of the
refusal on the Union and on the employees' union
activities. In short, the issue concerns alleged coer-
cion destructive of employees' Section 7 rights, not
an alleged unlawful refusal to consider or grant wage
increases. In any event, as Chance's testimony was
neither contradicted nor discredited, we find that
Clausen did tell her that raises were canceled because
of the employees' union activities. The Respondent
thus placed primarily on the Union and employee
union activities the onus for Respondent's failure to
grant or even consider a raise irrespective of the mer-
its of the matter. We find such a statement, whether
considered as a clear threat that union activities
could result in economic loss or as interference with
employee rights guaranteed under Section 7, was vio-
lative of Section 8(a)(1) of the Act.7
2. Employee Robertson, who had worked only on
Mondays and Fridays, made arrangements with
Clausen to go on a regular 5-day schedule. At the
time, according to Robertson, Clausen promised her
a raise when she started the full workweek; Clausen
denied he made any such promise but conceded he
told Robertson a raise was a possibility. Then, ac-
cording to Robertson, on August 25, the day she
started her new job schedule, Clausen told her she
would not get her pay raise because "raises are can-
celled right now because of union activities" or be-
cause "there is a freeze on all wages due to union
activities." Clausen did not specifically deny making
these statements. Rather he claimed he had no con-
versation, at least concerning wages, with her at the
time she started on her 5-day workweek. The Admin-
istrative Law Judge did not expressly resolve this
conflict between Robertson's and Clausen's version
of what occurred. However, in his Decision the Ad-
ministrative Law Judge stated that Clausen told
Robertson that the Respondent's action concerning
wages was taken "as the Bank did not wish to show
any favoritism during the union campaign." He also
7 Aircraft Hydro- Forming, Inc, 221 NLRB 581 (1975)
notes in his Decision that "Robertson asked Clausen
about a raise" even though she knew that under the
Respondent's established practice she was not then
entitled to a raise. Both of these statements necessar-
ily accept as true Robertson's testimony that there
was a conversation between Clausen and her con-
cerning a wage increase at the time she started her
5-day week; those statements are also clearly incon-
sistent with Clausen's denial. Accordingly, we ex-
pressly credit Robertson's version of the events and
find that in August 8 when she started her 5-day week
Clausen told her she would not get a pay raise or that
wages were frozen because of union activity.' As
pointed out above, such a statement placing the onus
of a wage freeze on union activity is unlawful. Ac-
cordingly, we find that Respondent, through
Clausen's above statement to Robertson concerning
a wage freeze, violated Section 8(a)(1) of the Act.
3. On August 19, President Kelly sent a memoran-
dum to the employees which contained the following
paragraph:
Are you working to become an officer someday:
We hope so, because it is usually those employ-
ees with the extra something in the way of ener-
gy, drive, capacity and willingness that make it
. . . . They are also usually the same employees
that have confidence in themselves to get ahead
in the bank and don't feel they need a labor
organization to protect them in what otherwise
could be looked upon as a career. .
The General Counsel contends essentially, and we
s As stated, Robertson testified that Clausen made these comments to her
the day she started her 5-day week on August 25 Clausen first testified that
Robertson commenced the full work week in early July or sooner which
would be before union activity commenced, but he then conceded that the
change to a full week may have come later He stated the date could be
verified by recourse to company records , but no effort was made on the
record to clear up his confusion The Administrative Law Judge , in stating
that Clausen made comments concerning union activity at the time he spoke
to Robertson when she began her 5-day week, necessarily was implicitly
holding that the change occurred after the union activity commenced, that
is, sometime after July I 1 Such being the situation , there is no reason for
not accepting Robertson 's testimony that the long workweek commenced
on August 25
9 The Administrative Law Judge also implicitly credited Robertson in
stating in his Decision that Clausen said "the Bank did not wish to show any
special favoritism during the union campaign ," for it was Robertson, and
not Clausen, who so testified However, the Administrative Law Judge mis-
read the record in stating that Clausen made that comment at the time of his
remarks that no raises would be given because of the Union Rather, Rob-
ertson testified that the statement was made concerning the holding of a
company picnic but could not remember whether or not it had been repeat-
ed in the conversation in which Clausen stated she would not receive a raise
Furthermore , assuming as the Administrative Law Judge states , that Clau-
sen did say Respondent would not grant any increases in order not to show
any special favoritism during the union campaign , such qualification would
not render this threat innocuous and thus not violative of the Act , for, even
if so qualified, his comments still place the onus for the wage freeze squarely
on the employees' union activity See Aircraft Hydro-Forming, supra, where
the Board found unlawful a statement to the effect an employee could not
be given a raise because with union activities in the plant it might appear
management was trying to buy her vote
AMERICAN COMMERCIAL BANK
agree, that the foregoing is an explicit threat to em-
ployees that if they support a union and management
becomes aware of the fact, they will not be consid-
ered to have that self-confidence necessary for pro-
motion to officer status. The Respondent contends,
nevertheless, that the statement is not improper be-
cause Respondent does not in fact rely upon an em-
ployee's union sympathies in considering him or her
for promotion to officer level.10 This contention
would seem to be clearly at variance with the lan-
guage quoted above and with certain testimony of
President Kelly. However, even if the Respondent
does not consider union sympathies in evaluating an
employee for promotion, the quoted language is
nonetheless an unambiguous threat that it does and
thus would necessarily tend to restrain and coerce
employees from freely and openly engaging in pro-
union conduct. Consequently, we find that the quot-
ed language is a clear threat of economic discrimina-
tion against employees for engaging in union
activities, and thus is unlawful under Section 8(a)(1)
of the Act.
Iii THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(1) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. American Commercial Bank is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Retail Clerks Union Local 1439, Retail Clerks
International Association , AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. By engaging in the following conduct , the Re-
spondent has violated Section 8 (a)(1) of the Act:
(a) Interrogating employees concerning their own
or other employees union activities or about how
they intend to vote in a Board representation elec-
tion.
(b) Promulgating, announcing , and/or maintain-
ing a rule prohibiting employees from engaging in
union-related conversations or solicitations on work-
ing time or in working areas while permitting all
other employee conversations or solicitations at such
times or places , or otherwise establishing a no-solici-
10 The Administrative Law Judge in finding nothing illegal here seems to
adopt the Respondent 's argument However , his position is not wholly clear
1133
tation rule for the purpose of interfering with self-
organizational activities.
(c) Threatening employees that if employees en-
gage in union activities wages will be frozen and/or
requests for special wage increases will not be consid-
ered on their merits.
(d) Threatening employees that if they support a
union they will be considered as not possessing those
qualities necessary for promotion to officer rank.
4. The above - listed violations are unfair labor
practices affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
THE OBJECTIONS IN CASE 19-RC-7640
The conduct which is the subject of the Union's
objections to the September 10 election is, for the
most part, the same as that encompassed by the
8(a)(1) allegations of the complaint. In view of our
various findings above that during the critical period
Respondent violated Section 8(a)(1) of the Act, we
find that there is substantial evidence to support the
Union's objections." Consequently, we shall set aside
the election and remand Case 19-RC-7640 to the
Regional Director for purposes of holding a second
election pursuant to the Direction of Second Election
set forth below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
American Commercial Bank, Spokane, Washington,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees about the
union activities and sympathies of themselves or of
other employees or about how they propose to vote
in a representation election.
(b) Promulgating, announcing, and/or maintain-
ing a rule prohibiting employees from engaging in
Union-related conversations or solicitations on
working time and/or working areas while permitting
all other employee conversations or solicitations at
such times and/or places, or otherwise establishing a
no-solicitation rule for the purpose of interfering
with the employees' self-organizational activities.
(c) Threatening employees that pay raises will not
be considered because of union activity or that if
they support a union, they will not be considered as
11 In this regard , we do not rely on the unlawful interrogations engaged in
by Simmons and Humphrey for it is not clear in the record that such inter-
rogations occurred during the critical preelection period-that is, after July
18, the date the Union filed its petition
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possessing those qualities necessary for promotion to
the level of company officer.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights protected by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at its main office and branch banks in
and about Spokane, Washington, copies of the at-
tached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director
for Region 19, after being duly signed by the Re-
spondent's representative, shall be posted by the Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the election held
among the Respondent's employees on September
10, 1975, be, and it hereby is, set aside and that Case
19-RC-7640 be, and it hereby is, remanded to the
Regional Director for purposes of holding a second
election pursuant to the following:
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
ii In the event that 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully question our em-
ployees about their union activities or sympa-
thies or about the union activities or sympathies
of other employees.
WE WILL NOT ask our employees how they in-
tend to vote in elections concerning union repre-
sentation.
WE WILL NOT prohibit our employees from en-
gaging in union conversations or solicitations on
working time and/or in working areas while per-
mitting all other conversations by them at such
times and/or places, or otherwise establish a no-
solicitation rule for the purpose of interfering
with self-organizational activities.
WE WILL NOT threaten our employees that they
will not be considered for pay raises because of
union activities in our main or branch banks.
WE WILL NOT threaten our employees that if
they support a union they will not be considered
as possessing those qualities necessary for pro-
motion to the level of bank officer.
WE WILL NOT in any like or related manner
intefere with, restrain, or coerce our employees
in the exercise of their rights protected by Sec-
tion 7 of the Act.
AMERICAN COMMERCIAL BANK
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This is a
consolidated proceeding putting in issue unfair labor prac-
tice allegations contained in both the complaint and cer-
tain objections to the election issued against American
Commercial Bank, Respondent herein. The unfair labor
practice allegations relate to numerous instances of assert-
ed interference by Respondent with organizational rights
of its employees in violation of Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended, by way of alleged
interrogation of its employees. It is conceded by the Gener-
al Counsel that the substance of the complaint reiterates
the subject matter of the objections to the election in Case
19-RC-7640. These matters were consolidated for the
hearing in the instant case.
Hearing in the above-entitled matters, with all parties
represented, was conducted before me in Spokane, Wash-
ington, on January 21 and 22, 1976. Following the conclu-
sion of the hearing, General Counsel and Respondent filed
comprehensive briefs.
Upon the entire record in this proceeding, and upon my
observation of the demeanor of the witnesses, and after
careful consideration of the briefs, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent admits, and I find, that Respondent is a
Washington State corporation with offices and places of
business located in and around Spokane, Washington,
where it is engaged in the business of commercial banking
through various branch outlets in the Spokane, Washing-
ton, area. During the past year said Respondent performed
services valued in excess of $50,000 directly to customers
across state lines and also realized gross business volume in
excess of $500,000. It is engaged in commerce within the
AMERICAN COMMERCIAL BANK 1135
meaning of Section 2(6) and (7) of the Act. Respondent
further admits and I find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act. The
consolidated complaint was issued on November 11, 1975.
The assertion of jurisdiction in this proceeding is proper.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Pursuant to a charge filed in Case 19-CA-8018 by the
Union on September 26, 1975, the Regional Director for
Region 19 issued a complaint on November 11, alleging in
substance that the Respondent had engaged in various acts
of interference, restraint, and coercion of employee rights
in violation of Section 8(a)(1) of the Act because of certain
interrogations allegedly engaged in by the Respondent.
The Union made a request on July 11 for recognition of
Respondent's nonsupervisory employees employed in Re-
spondent's main office and its branch banks. The Union's
request was denied on July 16 and the Union thereafter
filed its election petition on July 18. The election was held
on September 10, 1975.
The Union began its organizing campaign among Re-
spondent's employees in July 1975 and an ensuing election
campaign following the filing of the Union's election peti-
tion in Case 19-RC-7640 on July 18. The election was held
on September 10 with the result that the Union lost the
election. There were 18 votes cast for the Union and 32
against.
B. Interrogation
The complaint alleges in allegation 6(a) that on July I 1
Robert Simmons, assistant manager of the Fifth and
Washington branch of Respondent's bank, questioned em-
ployees concerning whether they had received letters from
the Union. Employee Theresa Brereton testified that,
about 8 a.m. around July 14, Simmons, in the presence of
Kathy Swagman, Marge Nava, and Brereton, all of whom
are tellers in the bank, was heard to say, "Oh, did everyone
get a letter" or "did you get a letter." This remark was
addressed to the group in general. In answer to this ques-
tion, Brereton stated that "everyone, just more or less yes
or somebody said no." Simmons did not pursue the matter
any further. In addition, Swagman testified that Simmons
asked her to bring him a copy of the letter. She did not
comply with this request. In this connection, the General
Counsel concluded that Simmons interrogated these em-
ployees about the Union and thus violated Section 8(a)(1).
It should be noted that this was the only conversation Sim-
mons had with any employee on the subject of the union
letter. This casual exchange is innocuous and does not add
up to a violation of Section 8(a)(1). I recommend that this
allegation be dismissed.
Simmons and Strain live near each other and Simmons
gave her a lift to and from work every day. Around July 16,
while they were riding home, Simmons asked Strain what
she thought of the Union. She told him she didn't know
that much about unions and "that was it." Simmons also
asked her if her father ever belonged to a union and what
the other girls thought about it. She replied that she had no
idea. "He then told me not to say anything to anybody else
because he could get in trouble for it and that ended the
conversation " These remarks concerning the Union took
about I minute; I credit Strain but regard the conversation
as an isolated incident.
Respondent's brief cites the case of Bonnie Bourne,
d/b/a Bourne Co. v N L R.B., 332 F.2d 47 (C.A. 2, 1964),
where the court has the following statements to make con-
cerning interrogation:
Under our decisions interrogation, not itself threat-
ening, is not held to be an unfair labor practice unless
it meets certain fairly severe standards. These include:
(1) The background, i e. is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g. did the
interrogator appear to be seeking information on
which to base taking action against individual employ-
ees?
(3) The identity of the questioner, i.e. how high was he
in the company hierarchy?
(4) Place and method of interrogation, e.g. was em-
ployee called from work to the boss's office? Was
there an atmosphere of "unnatural formality?"
(5) Truthfulness of the reply.
Respondent in its brief has the following to say concern-
ing the Simmons' matter:
The allegations against Simmons do not present the
usual case of interrogation. Simmons is young, friend-
ly, and curious, but he was not bent on a devious cam-
paign of interrogation. The statement and the conver-
sation were not reported to higher management, there
were no threats, no prolonged or sustained periods of
questioning and no discrimination. On both occasions
Simmons simply dropped the matter. His remarks had
no effect on the tellers or Jean Strain.
Glenn Humphrey is alleged to have interrogated em-
ployee Strain concerning her union activities and those of
other employees. Further, it is alleged that Humphrey told
an employee that he knew the union sympathies of other
employees.
Humphrey, age 66, was the manager of the Fifth and
Washington branch of the Respondent' s organization for 6
years. He is now retired and has been in retirement since
the end of August 1975.
The complaint alleges that Humphrey had a conversa-
tion with employee Strain in the course of which it is al-
leged that he asked her about the extent of her involvement
with the Union, whether she had attended any meetings
and also what other employees thought about the Union.
Humphrey categorically denied that he asked Strain about
her involvement with the Union and that he asked her if
she had attended any union meetings and what other em-
ployees thought about the Union. The record thus raises a
clear conflict of testimony on these points. Strain im-
pressed me that she was testifying truthfully but I was also
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favorably impressed with the testimonial demeanor of
Humphrey. He was equivocal in some of his answers but
he seemed to be trying to recollect what he had said in a
conversation with Strain which took place more than 6
months ago. Even if I were to credit the version of the
incident as described by Strain, at worst this was an isolat-
ed incident.
According to the record, employee Nava intiated a con-
versation with Humphrey during which she discussed with
him a union meeting she had recently attended.
Despite the contention of the General Counsel, I do not
believe that Humphrey's answers indicate that he was en-
gaging in surveillance of other employees by telling Strain
that he knew how other employees felt about the Union.
The record is clear that Nava told him she was opposed to
unions and Strain's response was that each girl has a right
to her own opinion.
An examination of Nava's testimony concerning this
question shows the following:
Q. Well, did he make any reference to or inquire as
to the location of the union meeting9
A. I think he possibly asked me if it was at
Wanda's, I think he did.
Q. How did he put it?
A. When I was talking about the Union he said it
was at Wanda's.
Whatever else may be said about this incident, it is clear
that in the context in which it occurred, there was no coer-
cion, no threats, and no interference. The complete ab-
sence of these factors in the conversation that Humphrey
had with Nava indicates rather clearly that Humphrey was
not attempting in a devious way to secure information con-
cerning at whose homes union meetings were held. This
information seems to have been volunteered to Humphrey
by Nava.
Allegation 6(g) states that: "Glenn Humphrey told an
employee at the Fifth and Washington branch that he
knew the union sympathies of another employee." In the
context of his conversation with Nava, she volunteered the
information that she was opposed to unions and was not
sympathetic to their objectives.
Despite the contention of the General Counsel, I do not
believe that Humphrey's remarks indicate that he was en-
gaging in surveillance of other employees by telling Strain
that he knew how other employees felt about the Union.
The record is clear that Nava told him she was opposed to
unions and Strain's response was that each girl has a right
to her own opinion
The record does not indicate that Humphrey was at-
tempting to find out the sympathies of other employees
because he asked no questions concerning them. I will
therefore recommend that allegation 6(g) be dismissed.
It also came out in the testimony concerning Humphrey
that he had given notice to the bank officials of his inten-
tion to retire before the union election. He testified that he
told Strain that while he thought well of labor unions, he
did not think one was necessary in Respondent' s small
bank. He also remarked that he would not be personally
involved with union problems because he would no longer
be employed at the Bank after his retirement took effect.
Joseph Akins-Jena Shaw Incident
Akins was approached by Shaw, whom he had known
since infancy, and asked if she could speak to him about a
personal problem . Akins agreed and a meeting took place
between them, after working hours, at Strobel' s Restau-
rant, located close to the Bank.
Shaw told Akins she was considering completing her col-
lege education. Akins encouraged her in this regard. She
asked him if she could continue to work for the Bank on a
part-time basis. He said he thought this could be worked
out-that she could go to school in the morning and work
for the Bank on a part-time basis in the afternoon.
While it is not clear in the record when this incident
occurred, it appears that in the course of the conversation
Shaw asked Akins what he thought about the Union. He
admittedly told her he was opposed to the Union. Appar-
ently on the next day their conversation was resumed in
the Bank. On this occasion Shaw testified Akins asked her
how she intended to vote in the upcoming NLRB election.
Akins did not deny that he asked Shaw this question. This
type of interrogation is violative of Section 8(a)(1) of the
Act. The improper question came up during the period that
Akins was giving Shaw advice about continuing her educa-
tion. However, it should be noted that nowhere in the rec-
ord is there any evidence that the question was accompa-
nied by a promise of benefit or a threat of reprisal. On a
previous occasion Shaw had worked for the Bank on a
part-time basis and therefore this problem had been met
before. In the context of what occurred, I find that this
improper question was an isolated incident.
The Promulgation and Announcement of the "No-Union
Talk"
The General Counsel argues that prior to the advent of
the Union employees had been free to talk among them-
selves "even while at their work stations and during work-
ing hours. They are also free to solicit during working time
for baseball and football pools, United Crusade Charity
Drives and for contributions for gifts to employees who
were getting married "and other such occasions ." He also
pointed out that even after promulgation of the no-union
rule, "employees remained free to talk about nonunion re-
lated subjects, except that they were not permitted to dis-
cuss the Union during work time."
Under these circumstances, the General Counsel con-
tends that Respondent discnminatonly promulgated a set
of rules "designed to discourage employee conversation
among themselves about union representation." It is fur-
ther argued that the fact that the rules were promulgated
for the first time during the union campaign "supports an
inference that the rules were discriminatorily promulgat-
ed."
The nub of the question presented is to determine if the
rule was adopted for discriminatory purposes . Respondent,
for its part, calls attention to Star-Brite Industries, Inc., 127
NLRB 1008, 1010 (1954). The Board stated in this case as
follows
1. The no-solicitation rule: As recently stated by the
Board in Walton Manufacturing Company, 126 NLRB
AMERICAN COMMERCIAL BANK
697, employer rules prohibiting union solicitation by
employees during working time are presumptively val-
id as to their promulgation and their enforcement.
However, as also stated in Walton, these presumptions
may be overcome by evidence establishing a "discrim-
inatory purpose" in the adoption of the rule, or by
evidence establishing an "unfair" application of the
rule. Such evidence, we find, is not present in this case.
In finding the adoption of the rule bad, the Trial
Examiner stressed the fact that the rule prohibited
only union solicitation and was announced during the
union campaign to an employee actively working for
the Union, and that no showing was made by the Re-
spondent that the rule was necessary "to maintain
plant production and efficiency." In our view, these
factors do not warrant a finding of a "discriminatory
purpose." Since the criterion as stated in Walton gives
presumptive validity to no-solicitation rules like that
at issue here , it is not controlling that the prohibition
of the Respondent's rule may have been limited to
union solicitation and not have embraced other types
of solicitation as well. With respect to the timing of
and the circumstances under which the rule was an-
nounced, we are unable to conclude that because the
Respondent may not have formulated the rule prior
to, but did so at the time of, the advent of the Union,
that this alone necessarily evidences a "discriminatory
purpose." It would be an anomaly to recognize that an
employer may lawfully adopt such a rule, yet to hold
that he may not do so when the occasion for its use
arises. As to the absence of proof of the Respondent's
actual need for its rule, we think it clear that as the law
views such rules presumptively valid, it was not in-
cumbent upon the Respondent to justify the rule by
independent evidence. Obviously, the imposition of
the requirement of justification would render the pre-
sumption meaningless . Finally, regarding the lawful-
ness of the actual enforcement of the rule, there is no
evidence in the record tending to establish that the
rule was "unfairly" applied. Thus, for example there
was no showing that the enforcement of the rule was
an "unreasonable impediment" to the Union's organi-
zational efforts.
For the foregoing reasons, we hold that the Respon-
dent did not violate the Act in promulgating and en-
forcing a no-solicitation rule.
I find that the promulgation and enforcement of the no-
solicitation and conversation rule was not adopted by the
Company or enforced by it for a discriminatory purpose.
Clausen's Statements Regarding Cancellation or Freezing
of Wage Increases Due to Union Activities
Allegation 6(h) of the complaint alleges that Clausen
told employees at the Town and Country branch bank that
wage increases were frozen or would not be granted by
Respondent due to the Union. The record shows that an
employee of the Town and Country branch, Martha
Chance, was reviewed for a raise effective July 1, 1975, but
1137
the bank personnel committee decided that she was not
entitled to a raise. Another employee of the Town and
Country branch, Mary Robertson, had received a raise on
April 1, 1975, and was reviewed for a raise on July 1, 1975,
but again the personnel committee determined that she was
not entitled to a raise.
Chance stated that Clausen told her that raises were can-
celed. Clausen testified that he told Chance that she could
not get a "special" raise because the appropriate time for
her salary review was not at hand. He told her that her next
salary review would be as of October 1, 1975, in accor-
dance with the procedures in the employee handbook.
Robertson asked Clausen about a raise. In contrast to what
Chance testified, Robertson said that Clausen had told her
that raises were "frozen." Moreover, Clausen told Rob-
ertson that he could not talk to her about the Union.
Clausen told Robertson that the action with respect to
raises had been taken as the Bank did not wish to show any
special favoritism during the union campaign.
Respondent's brief states that in a recent case, Encinitas
Floral Co. (United Farm Workers of America, AFL-CIO),
221 NLRB 1118 (1976), the Board, when faced with a ques-
tion almost identical to the one concerned here , stated as
follows:
It is concluded that the Employer did not interfere
with the union representation election by deferring all
pay raises until after the union representation election.
There was no attempt by the Employer to influence
the votes of employees in the upcoming election by
deferring the wage increases. The Employer informed
affected employees that he was deferring their wage
increases in order to avoid the appearance of attempt-
ing to influence their votes in the election, especially
since the amounts of the individual increases could
vary. None of the employees were deprived of a wage
increase, since after the election the increases were
awarded retroactively to the respective anniversary
dates.
Bank President Kelly testified that each employee, upon
being hired, had been given a copy of the personnel policy
of the American Commerical Bank which provides that,
with respect to wage increases , periodic reviews are made
of all employees on a quarterly basis. According to Kelly's
testimony employees received raises on July 1, 1975, in-
cluding three Town and Country branch employees. These
raises appeared on the July 15 paychecks. Respondent
pointed out that Mr. Kelly could have canceled the July 1
raises after he was contacted by the Union on July 11,
1975 However, the Bank continued its regularly estab-
lished policy with respect to wage reviews, since this had
been their practice over a long period of time. Clausen was
told that he should be careful to do nothing special that
might create an impression that the Bank was trying to
show favoritism to employees and influence them to be
favorable to the Bank's way of thinking regarding the
Union.
'This citation and quoted material were taken from the Respondent's
brief, however, we have not been able to ascertain the right citation for the
quoted material
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martha Chance, an employee of the Town and Country
branch, was reviewed for a raise effective July 1, but the
bank personnel committee decided that she was not enti-
tled to a raise . Another employee of the Town and Country
branch, Mary Robertson, had received a wage increase on
April 1, 1975, was reviewed for a raise on July 1, but again
the personnel committee determined that she was not enti-
tled to a raise. Chance testified that she was aware that the
procedures set forth in the Bank's personnel handbook
with respect to the time when raise increases were consid-
ered. She testified that Clausen told her that raises were
canceled because of the union situation. Clausen testified
that he told Chance that she could not get a "special" raise
because the appropriate time for her salary review was not
at hand. He also told her that her next salary review would
be as of October 1, 1975, in accordance with the proce-
dures in the handbook. Robertson testified that she also
was aware of the salary review procedures and knew that
other employees at the Bank had received raises on July 1.
Despite this fact, Robertson asked Clausen about a raise.
According to her testimony, Chance testified that raises
were frozen.
It is not contradicted that both Chance and Robertson
received their quarterly wage review under the Bank's es-
tablished procedure. According to Respondent's position
with respect to salary increases , it was stated that to grant
either Chance or Robertson an increase would be in the
nature of a "special" wage increase and that this was not
appropriate.
The General Counsel argues in his brief that Clausen's
statement to Chance must be treated as a coercive remark
in violation of Section 8(a)(1) of the Act, and he cites in
support of this conclusion National Utility Products Compa-
ny, 220 NLRB 220 64 (1975). The National Utility Products
Company states in footnote 3 that the respondent, through
its vice president, James E. Jefferies, violated Section
8(a)(1) of the Act by promising benefits to individual em-
ployees in order to dissuade them from engaging in union
activities. It is further stated in this footnote that the re-
marks of Jefferies clearly convey to the employees the im-
pression that certain fringe benefits were being considered,
and that, but for the employees' union activities, such plans
for additional benefits would have been further developed,
and perhaps even finalized. The withholding or condition-
ing of benefits because of the employees' protected con-
certed activities, or implications that this was being done is
clearly destructive of their Section 7 right to engage in such
activities.
The General Counsel's reliance on National Utility Prod-
ucts Company is misplaced because the facts are substan-
tially different from the facts of the case at bar. In the
instant case the procedure followed with respect to wage
increases was in accord with Respondent's practices as
stated in the booklet on personnel practices given to all
new employees. In the instant case Respondent did not
withhold wage increases in an attempt to persuade employ-
ees that but for the Union they would have received such
wage increases . It is clear that by continuing to follow the
wage review policies it has always followed, there was no
withholding of increases that came within the time sched-
ules of such increases.
Whatever else may be said about the argument of the
General Counsel, it is certainly clear that his conclusion is
not borne out by a preponderance of the credible evidence
in the record. I find nothing violative of the total statement
given in the context in which it was made and I therefore
recommend the dismissal of this allegation in the com-
plaint.
The Ken Anderson-Pam Miller Exchange
The record shows that considerable time was spent in
arguing whether or not Anderson was a managerial or su-
pervisory employee. In this connection it should be noted
that when Anderson was hired in January, he was hired
with the anticipation of his becoming a manager of a new
branch bank which was then in process of completion;
during the period of the preelection campaign, he had
spent a full month as acting branch manager of two
branches while the regular managers were on vacation.
During this time he approved loans and sat at the
manager's desk; he was responsible for doing the prepara-
tory work in getting the new branch put together, including
drafting applications for the appropriate Government
agencies , locating equipment and supplies to be used in the
new branch and working with the architect on the layout of
the new branch bank; he was paid more than nonmanager-
ial employees; he was called on the carpet on August 29 by
Kelly and interrogated by Respondent's attorney about the
Iverson incident. Unless Respondent considered Anderson
part of management, there would have been no reason to
interrogate him; he attended monthly meetings concerning
business development, one of which he along with others
present received instructions from Kelly regarding the
"do's and don'ts" of management behavior during a union
campaign; he analyzed and made effective recommenda-
tions concerning loan applications that were considered by
top bank management He was made a vice president of
the Bank and it should be noted that the title of vice presi-
dent has been conferred on only four of the Bank's top
management personnel and on only two of the six branch
managers From all of the above , it seems clear and I find
that Anderson was a managerial employee and had the
attributes of a supervisor in accordance with the definition
of a supervisor as found in Section 2(11) of the Act.
While not entirely clear from the record, it appears that
Miller and Anderson were working next to one another
and talking about the subject of funeral homes and auto-
mobile accidents An employee, Wanda Iverson, working
nearby became upset and so informed Anderson and
Miller. Iverson was upset because she had lost a son in an
automobile accident a few years earlier. That same day
Union Representative Zachary called Respondent' s Presi-
dent Kelly to complain about the incident. Thereafter, An-
derson was called "on the carpet" by Kelly and asked to
take a telephone call from Respondent's legal representa-
tive who inquired about the earlier incident involving Iver-
son. Anderson explained he had not intended to embarrass
anyone by the earlier incident. Thereafter, Anderson and
Miller were talking about this episode. Miller commented
that she thought the Union was being "a little bit picky"
about complaining to management about the incident
AMERICAN COMMERCIAL BANK 1139
which relates to Anderson's account on this point. Ander-
son then asked Miller if it was really true that Wanda was
"really behind it." Miller added that she thought Anderson
was referring to the Union and replied that she didn't
know and wouldn't tell him if she did. Despite some differ-
ences between the version given by Anderson and the one
given by Miller, the General Counsel takes the position
that Anderson's asking an employee who had been behind
the report to the Union is in and of itself a form of union
activity regarding which management has no right to in-
quire . From all of this, the General Counsel concludes that
Miller properly understood the question and the context to
mean "is Iverson really behind the union activity."
Whatever can be said about the position taken by the
General Counsel with respect to this incident, it is certainly
clear that it was not established that the General Counsel
succeeded in carrying his burden of proof on substantial
testimony based on credible evidence in the record.
Kelly's Speech at Airway Heights and Main Branches:
Creation of Impression of Surveillance of Union
Activities
At the close of the Company's campaign urging its em-
ployees to reject the Union, Kelly made speeches to his
employees in the course of which he allegedly departed
from the script that he had in his hand and made a com-
ment to the effect that employees should not be influenced
despite what may have occurred at two meetings held in
two employees' homes concerning the Union. The employ-
ees were not obligated to vote for the Union. The main
bone of contention between the Respondent and the Gen-
eral Counsel was whether or not Kelly had devoted his
comments contained in a speech solely based on the tran-
script he had before him or whether he departed from the
script to make the observation recorded above. Respon-
dent presented convincing witnesses who testified that Kel-
ly never departed from the script of the speech that he was
making but that he did raise his eyes occasionally from the
pages he was reading to establish "eye contact" with his
listeners . On the other hand, the General Counsel's version
of the incident consists of the testimony of Wanda Iverson
and Bonnie Demianew and one employee at the Airway
Heights branch, Doris Morton. These employees firmly
and unequivocally stated that Kelly made a reference, dur-
ing his speech, of having knowledge that employees had
held union meetings at two employees' homes. It is the
contention of the General Counsel, based on the testimony
of Iverson and Demianew, that Kelly looked directly at
Iverson when he made the extemporaneous reference to
meetings at two employees' homes in the speech at the
main branch. It was also urged that Morton, who had held
one of the meetings in her house, and would under-
standably be particularly sensitive to and likely to recall
such a remark, said Kelly stared directly at her when he
made a similar extemporaneous reference to Airway
Heights. Despite vigorous cross-examination, these three
employees stuck to their story.
Kelly was equally firm in his denial that he deviated in
any way at any time from the text of the script. Respon-
dent called a number of witnesses to corroborate his con-
tention that he did not deviate from the script in any way
whatsoever . In the conclusion of the General Counsel's re-
cital of the events concerning this incident , it is stated:
In sum , it is more probable than not, that Kelly let slip
on two occasions that he knew that at least two em-
ployees had held union meetings in their homes and,
assuming he did so, he thereby created in employees'
minds. the reasonable apprehension that their union
activities had been under management surveillance
The trouble with this statement is that it is based entirely
on a supposition and a statement as indicated in the com-
ments of the General Counsel . Assuming Kelly did so, he
created the impression of surveillance . This hardly consti-
tutes proof by a preponderance of credible evidence that
the incident took place as asserted by the General Counsel.
Similarly, it can be said that an equal conclusion could be
reached that , leaving out the assumptions , Kelly did not
deviate from the script and did not look at the two employ-
ees at whose homes certain union meetings had taken
place . At best this is a weak allegation and I find that it
was not supported by the evidence of the record . I there-
fore recommend that this allegation be dismissed.
OBJECTIONS TO THE ELECTION
It was conceded by the General Counsel that the objec-
tions encompass the material set forth in the 8 (a)(1) allega-
tions of the complaint.
The General Counsel takes particular exception to the
last sentence in the memorandum . He interprets this sen-
tence to be an announcement from the president of the
Bank that if an employee joined the Union, he would have
to give up his chances for advancement.
In my opinion the General Counsel's interpretation is
without foundation . In this connection the record also con-
tains a statement by Kelly that he knew of certain banks in
Washington where the employees were unionized and, de-
spite this fact, did receive promotions . Thus, even if Kelly's
statement was capable of the interpretation given it by the
General Counsel , such a conclusion was negated on the
record by Kelly. I recommend that the allegation concern-
ing this matter be dismissed.
Analysis and Conclusion
While admittedly there were a number of interrogations
which might be considered to be violations of the Act, as I
view them they were both isolated and trivial.
In the holding in J. P Stevens & Co., Inc, 217 NLRB
513, 514 (1975), the Administrative Law Judge stated as
follows:
The election results . . . show that the Petitioner
received 119 votes, with 176 votes against it. In the
light of the substantial margin of the Union's loss, I do
not regard the unfair labor practice I have found, con-
sisting of a single interrogation and a single threat by
one supervisor to one employee, as a sufficient basis
for setting aside the election, and shall recommend
that this objection be overruled.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The threat directed against an employee is much more
serious than the innocuous bits of interrogation on which
the General Counsel bases his conclusion that the election
should be set aside. In the J. P Stevens case the Board
short-formed the decision of the Administrative Law
Judge. In the instant case the Union lost the election by
almost 2 to 1 (18 for and 32 against the Union).
In the case of Groendyke Transport, Inc., 211 NLRB 921
(1974), enfd. 530 F.2d 137, 144 (1976), the United States
Court of Appeals, Tenth Circuit, had this to say about in-
terrogations:
It is true that a record showing only isolated, innoc-
uous incidents of interrogation, and unrelated conver-
sations lacking the indicia of coercion, has been held
insufficient to sustain findings of unfair labor prac-
tices under §8 (a)(1). N.L R.B v. Orleans Manufactur-
ing Co., supra, 412 F.2d at 96.... The issue is wheth-
er the proof demonstrates interference, restraint or
coercion of employees in violation of § 8(a)(1). The
core of the unfair labor practice Ices in the element of
coercion and does not extend to a total restriction
against argumentative discussion of the effect of
unionization, argumentative discussion itself being
protected by § 8(c) of the Act. N.L.R.B v. Thompson
Transport Co., 406 F.2d 698, 702 (10th Cir.); N. L. R. B.
v. Automotive Controls Corp., 406 F.2d 221, 223-34
(10th Cir.). [Emphasis supplied.]
I am fully aware of the fact that interrogation is narrow-
ly construed in a situation involving objections to an elec-
tion. Nevertheless it is significant to remark at this juncture
that the ambience in the Bank and its branches is remark-
ably free of any suggestion of coercion.
I find that Respondent, American Commercial Bank,
did not violate any provisions of the Act and I therefore
recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
It has not been established on this record that Respon-
dent committed any of the unfair labor practices alleged in
the complaint except for certain isolated instances which
do not seem sufficiently serious to warrant setting the elec-
tion aside
[Recommended Order for dismissal omitted from publi-
cation.]