Carrom Division, Affiliated Hospital Products

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 703 (N.L.R.B. 1979)

CARROM DIVISION, AFFILIATED HOSPITAL PRODUCTS
Carrom Division, Affiliated Hospital Products, Inc.
and United Furniture Workers of America, Local
282, AFL-CIO. Cases 26-CA-7337 and 26-CA-
7403
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On July 6, 1979, Administrative Law Judge Irwin
Kaplan issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I While the record raises substantial suspicions regarding the discharge of
employee Letha Henderson, we agree with the Administrative Law Judge's
conclusions that the General Counsel failed to meet the burden of proving
that Respondent acted with an illegal motive.
Member Murphy agrees that the Respondent did not violate Sec. 8(a)(1)
of the Act by its reference to union supporters as "clowns" in its July 28
letter to employees. However, contrary to the Administrative Law Judge, she
does not rely upon Hollywood Ceramics Company, Inc.. 140 NLRB 221
(1962), in reaching this finding. See her separate opinions in General Knit of
California, Inc.. 239 NLRB 619 (1978), and Shopping Kart Food Market, Inc.,
228 NLRB 1311 (1977).
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard before me at Memphis, Tennessee, on December
13 and 14, 1978. The original charges in Case No. 26-CA-
7337 were filed by United Furniture Workers of America,
Local 282, AFL-CIO (herein called the Union), on August
4, 1978, amended on August 25, 1978, and culminated in
the issuance of a complaint and notice of hearing dated
August 28, 1978. The Union filed additional charges in
Case No. 26-CA-7403 on September 8, 1978, amended on
November 22 and further amended on December 4, 1978.
Thereafter an order consolidating the aforecited cases,
amended complaint, and notice of hearing issued dated Oc-
tober 13, 1978 (amended at the hearing).
It is principally alleged that Carrom Division, Affiliated
Hospital Products, Inc. (herein called Respondent), refused
to reemploy Letha Henderson, its former employee, be-
cause of her activities on behalf of the Union and her in-
volvement in previous charges in violation of Section
8(a)( ), (3), and (4) of the National Labor Relations Act, as
amended, (herein called the Act). Further, it is alleged that
Respondent demoted former employee James Sanders from
leadman and reduced his wages in violation of Section
8(a)(l) and (3) of the Act. Still further, it is alleged that
Respondent wrote a letter to all employees describing cer-
tain of its union-supporting employees as "clowns,"
thereby, inter alia, subjecting them to ridicule, in violation
of Section 8(aXI) of the Act. Respondent filed an answer
conceding, inter alia, jurisdictional facts, but denying all
allegations that it committed any unfair labor practices.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after careful consideration
of the post-trial briefs, I find as follows:
FINDINGS OF FACT
I. JURISDICTION
Respondent, Carrom Division, Affiliated Hospital Prod-
ucts, Inc., a corporation doing business in the State of Mis-
sissippi from its facility in Sardis, Mississippi, is engaged in
the manufacture of hospital furniture. During the past 12
months Respondent has derived revenue from the operation
of its Sardis, Mississippi, plant, its only facility involved
herein, in excess of $50,000 directly from points outside the
State of Mississippi. Respondent admits, and I find, that it
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits, and I find, that United Furniture
Workers of America, Local 282, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting
Letha Henderson began working for Respondent at its
Sardis, Mississippi, plant on September 4, 1974, and was
first terminated on April 10, 1975. Thereafter she was re-
hired and terminated on several other occasions the last
termination occurring on May 4, 1978.' Henderson testified
that prior to her termination on May 4, 1978,2 she was ac-
tively involved in the Union's organizational efforts. Thus
she asserted, inter aria, that she attended union meetings,
signed a union card, and solicited union cards from other
I The parties stipulated and I find that Henderson was first rehired on
November 24. 1975, and worked until September 17, 1976. Further, she was
again rehired on December 9, 1976, and worked continuously until May 4,
1978. when she was last employed by Respondent.
All dates hereinafter refer to 1978 unless otherwise indicated.
245 NLRB No. 89
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
emplyees. On May 25 charges were filed in Henderson's
behalf in Case 26-CA-7216 alleging that Respondent laid
her off on May 4 and refuses to recall her because of her
union activities. On June 22 the charges were dismissed
(Resp. Exh. 7(b)), and the appeal thereon was subsequently
denied. In the letter denying the appeal dated July 20
(Resp. Exh. 7(d)), it was noted that the investigation re-
vealed an absence of any probative evidence showing that
Respondent had knowledge of Henderson's union activity'
or that Respondent engaged in a Section 8(a)(1) violation
"of any kind."
Henderson testified that after she was terminated she
continued to support the Union's organization efforts and
distributed union leaflets to employees as they passed
through the gate leading to Respondent's plant. Personnel
Director William Sanders Sanders conceded that at least on
one such occasion he observed Henderson handing out
union literature.
On June 6 Henderson reapplied for a job as a machine
operator in the metal department and submitted a new ap-
plication (G.C. Exh. 15). Henderson testified, with some
corroboration from employee Harry Dunnigan, that
around April 1978 Helmar Moran, vice president of opera-
tions, at a meeting attended by Personnel Director Sanders
and by all the employees, informed them that there would
not be any layoffs and that he would transfer employees
from the wood department (wherein Henderson worked) to
the new metal department rather than lay off anyone. Mor-
an and Sanders denied that employees were told that they
would be transferred to the metal department before any of
them would be laid off or that there would not be any
layoffs. Sanders testified that employees inquired regarding
the possibility of wood department employees working in
the metal department, and they were told that it would not
be feasible for the Company to have to retrain them for
metal and then find replacements and train new employees
in the wood department.5
Personnel Director Sanders testified that he considered
Henderson's June 6 application for a machine operator po-
sition in metal and did not hire her because most of the jobs
in that department are skilled, and she had no such experi-
ence in working in metal. He asserted further that when
unskilled jobs were available in the metal department, her
application had already been outstanding for more than 30
days and therefore was no longer current.6
Henderson testified that she attempted to reapply and file
new applications on August 8 and again on November 21,
but the receptionist on those occasions told her that the
3 Henderson's maiden name, Hanson, is set forth in the charges in Case
No. 26-CA-7216 as the alleged discriminatee.
In an affidavit given by Henderson to the Board agent on June 2 in
connection with the charges in Case 22-CA-7216, she stated: "I never
passed out union literature, button or badges. The only way that the com-
pany could have found out about my union activity is if someone snitched on
me." (Resp. Exh. I, p. 3).
In Henderson's affidavit of June 2 she stated that Moran told her at some
unspecified time apparently prior to the above-noted meeting "that he would
not be transferring employees from wood to metal" (emphasis supplied.)
This apparent conflict and other matters related to Henderson's credibility
will be treated more fully below.
6 The following is printed at the end of each application form:
This application will remain in active status for 30 days. If you wish to
renew it after that time you must apply again in person.
company was not accepting applications. Personnel Direc-
tor Sanders asserted that if Henderson was not given an
application on those occasions, the Company had to have
been displaying its "Applications Not Accepted" notice
(Resp. Exh. 4), and there are no exceptions thereto. Hen-
derson acknowledged that the receptionist pointed out the
sign to her on the November occasion and told her to come
back when that sign was down. General Counsel witness
Dunningan testified that Respondent has utilized such a
sign for at least 5 years.
On September 8 the Union filed a new charge on behalf
of Henderson in Case 26 CA-7403 alleging not only, as it
had earlier in previously dismissed Case 26 CA-7216, that
Respondent unlawfully refused to recall Henderson since
on or about May 4 but additionally that Respondent was
violating Section 8(a)(1), (3), and (4) by not rehiring her.
Respondent, however, contends that Henderson was ter-
minated on May 4 along with six other employees and one
supervisor for lack of work, and she had to reapply in order
to work again, as she had when Respondent had terminated
her in the past. Respondent asserts that Henderson would
be considered for employment if she applies at a time when
Respondent is accepting applications and if she is qualified
for the opening. Moreover, Respondent argues that the new
charge is virtually the same as the previous one and is there-
fore res judicata.
James Sanders (also an alleged discriminatee) began
working for Respondent around July 1974. In or around
late May 1978 Sanders asked Vice President Moran for a
raise. Moran told Sanders that he would examine his file
and discuss it further if the records reflected that his work
was satisfactory. About 2 weeks later Moran told Sanders
that he had reviewed his file and would promote him to
leadman in the mill department with a raise, but pointed
out that there would be a probationary period.? Sanders
testifed that Moran told him that he did not want him to
think that he was getting the promotion because of the
Union but rather because he believed that he, Sanders, was
capable of doing the job.
On June 16 the Union filed a petition for a certification
election in Case No. 26-RC-5786 for a unit consisting of
Respondent's production and maintenance employees at
the Sardis, Mississippi, location.s Sanders testified that he
was involved in the Union's organizational drive by attend-
ing union meetings, handbilling, and soliciting employees to
sign union authorization cards. According to Sanders, he
first wore a union T-shirt on July 28, the same day he lost
his leadman position and raise. While Moran conceded that
he saw Sanders wear a union T-Shirt, he could not recall
the precise day.9
I All leadmen serve a -month probationary period. Sanders served from
Monday, June 26, until Friday, July 28.
* On July 19 the Regional Director issued a Decision and Direction of
Election in Case 22-RC-5786, finding, inter alia, that leadmen. including
James Sanders were in the unit, as asserted by the Union (the Petitioner
therein), and not statutory supervisors. After the Board subsequently granted
review and remanded the case to the Regional Director for further action,
the parties on September 12 executed a Stipulation for Certification Upon
Consent Election with a scheduled election date of Friday, October 13. The
record herein does not disclose any further disposition of the representation
case. Presumably the election was blocked by the instant charges.
9 The General Counsel's witness Dunnigan corroborated Sanders concern-
ing the July 28 date when he and Sanders first wore union T-shirts. but in his
affidavit (not in evidence) he indicated that it was on July 21.
704
CARROM DIVISION. AFFILIATED HOSPITAL PRODUCTS
On July 28, the same day that James Sanders was de-
moted, Vice President Moran wrote a letter to all employ-
ees (G.C. Exh. 12) describing alleged union harassment of
employees who elected not to sign union cards and noting
another union matter as follows:
I noticed that a couple of employees wore their clown
T-shirts to work today. Again, I ask you, is this type of
person you want making decisions for you? I guess
these people think the whole Union question is a game.
We don't. We think it is very serious, and we suggest
that you have nothing to do with the clowns in the T-
shirts.
The General Counsel contends that Moran's letter to em-
ployees, as set forth in pertinent part above, independently
violated Section 8(a)(1) of the Act by coercing employees
who supported the Union and subjecting them to ridicule.
Further, the General Counsel contends that Sanders' demo-
tion and concomitant loss of pay were in retaliation for his
union involvement, including wearing a union T-shirt and
that Respondent thereby violated Section 8(a)(3) and () of
the Act.
Respondent, however, denies that anything contained in
the letter is violative of the Act but rather must be viewed,
inter alia, in an election campaign context wherein both
sides referred to each other in uncomplimentary terms.
With regard to Sanders' demotion Respondent contends
that he was not performing satisfactorily as leadman, and in
any event there was not enough work in the mill depart-
ment to justify maintaining the position. At the time of the
instant hearing Respondent had not yet appointed a new
leadman in that department.
B. Discus.sion and Conclusion
I. Letha Henderson
The record discloses that Respondent terminated seven
employees on May 3 and 4 for lack of work, including Hen-
derson and Ruth Tarver, who were both employed in the
finishing department.
As noted previously, the charges in Case 26 CA-7216,
filed on May 26, alleged that Henderson's termination and
Respondent's failure to recall her were predicted on her
union activities, and these charges were dismissed and the
appeal thereon was denied.
The record discloses that on June 6, while the aforenoted
charges were still being investigated, Henderson reapplied
for a job as a machine operator in the new metal depart-
ment. The record also reveals that Respondent considered
Henderson a good worker with an ability to learn quickly.
Thus on occasion Respondent temporarily shifted her to
help out with the work in other departments. Personnel Di-
rector Williams Sanders asserted that he considered Hen-
derson's application for the machine operator's position
and concluded that she was not qualified to handle a skilled
machine operator's position in metal. 0 Henderson had nev-
o0 Henderson stated in an affidavit dated June 19 (Resp. Exh. 2, p. I. that
she told Personnel Director Sanders at the time she was terminated that she
would not come back to work for the Company because she did not like the
way Plant Superintendent Vinson and his wife ran the plant and her depart-
ment, respectively. As Sanders did not advance this as a reason for not
rehiring Henderson. I deem that any reliance thereon is inappropnate and
too speculative.
er worked in the metal department, which became opera-
tional around January 1978, and conceded that she did not
know anything about that department.
The General Counsel points out with some appeal that
Robert Lovett applied on the same day as Henderson, and
he was hired and trained for a skilled position in the metal
department although his application does not reflect any
experience or skill in handling metal. However, on the total
state of this record, noting particularly that Henderson had
not previously worked in the metal department and admit-
tedly knew nothing about said department, I am unper-
suaded that Respondent's electing to hire Lovett over Hen-
derson. without more, compels the conclusion that
Respondent was discriminatorily motivated within the
meaning of Section 8(a)(3) and (4) of the Act. Rather, I find
the absence of any evidence tending to show that Respon-
dent threatened, interrogated, coerced, or otherwise in-
dependently interfered with or restrained employees within
the meaning of Section 8(a)(1) more revealing as factors
militating against a finding of unlawful motivation in the
circumstances of this case."
On the second day of the hearing after Henderson had
been questioned and cross-examined, the General Counsel
amended paragraph 10 of the amended complaint to allege
that Respondent, by "refusing] to permit [Henderson] to
file an application on August 8 and November 21, 1978,"
violated Section 8(aX3) and (4) of the Act. The General
Counsel had previously specified only June 6 as the date
Respondent allegedly refused to reemploy Henderson.
The record reveals that employment applications are ac-
tive for only 30 days, and if the applicant wants to pursue
employment opportunities thereafter, said applicant must
apply again in person. Henderson's application of June 6
discloses that she applied for a job as a machine operator in
the metal department, a skilled position. Personnel Director
Sanders, as noted above, asserted that in his view Hender-
son was not qualified for a skilled job in the metal depart-
ment, and when unskilled jobs were available, her applica-
tions was no longer current. Dorothy Taylor, who was hired
as an unskilled employee in the metal department on June
6, had applied several days earlier. In addition to Taylor
and Lovett (referred to previously), there is no evidence
tending to show that the other six individuals who were
hired in the predominantly skilled metal department during
the 30-day period within which Henderson's application
was still active were unskilled applicants. Thus the General
Counsel has not demonstrated by a preponderance of the
credible evidence that Henderson suffered disparately.'
Henderson testified that she was not permitted to file ap-
plications on August 8 and November 21. According to
I In Henderson's affidavit of June 2 she stated, "I was never questioned or
threatened by any supervisors, that I recall, about the Union . .. I am not
aware that any other employees have ever been questioned or threatened
about the Union." (Rsp. Exh. ) As set forth previously, the General Coun-
sel, by letter dated July 20 denying the appeal of the dismissal of the charges
involving Henderson's discharge, noted, inter alia, "the absence of any pro-
bative evidence of an] independent Section 8(aX I) violation of any kind on
the part of the Employer"(Emphasis Supplied.)
t2 The General Counsel also pointed out that Ruth Tarver, less senior than
Henderson, was reemployed. The record discloses that Tarver was the only
one of seven employees terminated on May 3 and 4 who was reemployed by
Respondent. Moreover, it is noted that Tarver reapplied on August 22, at a
time when Henderson did not have an active application, and was hired in
an unskilled position on September 6.
705
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sanders, if Henderson was refused applications on those
occasions, the Company was not accepting applications
from anyone. The record tends to support Sanders. Thus
the record discloses that on those days when the Company
is not hiring, it conspicuously posts a notice that applica-
tions will not be accepted until further notice (Resp. Exh.
4). That sign is flipped over and another notice appears on
those occasions when the Company is accpting applications
and engaged in hiring. Henderson conceded that the sign
not accepting applications was up on November 21. Ac-
cording to Henderson, she did not see the sign until it was
pointed out to her by the receptionist, who told her that the
Company would accept applications when it posted the ap-
propriate sign. With regard to Henderson's assertion that
Respondent refused to let her apply on August 8, 1 am not
convinced that she appeared at the Company's premises on
that occasion. According to Henderson, she was told by the
receptionist that the company was not accepting applica-
tions that day."
It is noted, for example, that in Henderson's affidavit of
September 19, in the only affidavit given by her after June
(Resp. Exh. 3), there is no reference to her seeking employ-
ment at Respondent's plant in August. Further, she did not
pinpoint August 8 until her second day of testimony and
only after the complaint was further amended and she was
again questioned on the date by General Counsel on redi-
rect. Still further, I reject her uncorroborated assertion that
she was discriminatorily denied an application on August 8,
because, on the basis of the totality of her testimony and
her demeanor, I found her not to be a reliable witness."
While Henderson may have appeared at Respondent's
plant in August and may have also been refused another
application, I am not convinced by a preponderance of the
credible evidence that it was done discriminatorily or at a
time when applications were accepted from other appli-
cants.
In sum, noting particularly an absence of any evidence
tending to show that Respondent has otherwise violated the
Act, I find that the General Counsel has failed to establish
by a preponderance of the credible evidence that Respon-
dent refused to reemploy Letha Henderson for reasons vio-
lative of Section 8(aX3) and (4) of the Act."
i Counsel for the General Counsel in her brief, relying in part on a re-
jected exhibit (G.C. Exh. 17), asserts that Respondent accepted an applica-
tion from Burbon Redd on August 8. The exhibit represented General Coun-
sel's computations from documents supplied by Respondent under a
subpoena duces tecur As Respondent would not stipulate to the accuracy of
the document and as the predicate records were not in evidence and as no
further foundation was demonstrated in support of the accuracy, I refused to
receive the document in evidence. In any event, as I do not credit Hender-
son's testimony that she appeared at the Company's premises on August 8, 1
do not deem the exhibit material.
14 For example, in connection with Henderson's June 2 affidavit (Resp.
Exh. I, p. 3) she was asked several times whether she told the Board agent
that she had never passed out union literature or wore any buttons or badges
and responded variously with "No." "Yes, I suppose so," "I really don't
understand your question," and finally "No" again. Henderson conceded
that the Board agent told her to read the statement "carefully." In this
regard it is noted that in addition to Henderson's signature on the last page,
her initials appear no fewer than four times on the four-page affidavit. In
these circumstances, I find that Henderson's evasiveness and vacillation
strongly militate against accepting her testimony as worthy of belief.
1 I1 find, however, that Respondent's resjudicata argument that the dispo-
sition of the charges in Case 26-CA-7216 is dispositive of the instant charges
involving Henderson is without merit. The charges previously disposed of
related principally to Henderson's alleged unlawful discharge, whereas the
2. James Sanders
The record discloses that sometime in or around June
1978 Sanders asked Vice President Moran foir a raise. Mor-
an then looked into Sanders' work record and spoke with
supervisors Vinson and Woodward. On or about June 26
Moran told Sanders that he thought that he was capable of
becoming leadman ovei' the molders in the mill department,
and the promotion included a 40-cent-an-hour wage in-
crease. Sanders conceded that Moran told him that his
change to leadman status would involve a probationary pe-
riod. According to Sanders, Moran also told him that this
opportunity had nothing to do with the Union.
Sanders testified that he first became involved with the
Union in April or May 1978, at which time he signed a
union card. His union activity thereafter included attending
union meetings, encouraging other employees to sign union
cards, and handbilling. In July several union supporters,
including Sanders wore union T-shirts at work.'"
On July 28 Moran wrote a letter to all employees, stating
therein, inter alia, that "noticed that a couple of employees
wore their clown T-shirts to work today."" Also on July 28,
in the afternoon, Personnel Director William Sanders had
Curly Vinson summon James Sanders to the office. The
latter Sanders' testimony as to what the personnel director
told him is essentially undisputed and is as follows:
[He said he wanted to tell me that he wasn't going to
be able to use me as a leadman anymore because I
didn't have any people to be leadman over. I asked
him could he get me some people to be leadman over
since he is the personnel manager [sic]. He stated that
he couldn't because the work was less, and he just
couldn't get the people. That was about it.
The record tends to support the director's assessment that
a leadman over the molders in that department was no
longer needed. First, Sanders, the alleged discriminatee,
conceded that the work in the department was slow. While
the record discloses that there were two molding machines,
only one of them would be used at any given time, and that
machine would be operated by Sanders. In this regard, the
record discloses that it was only on an intermittent or spo-
radic basis that he was assisted by other employees. The
record also reveals that after Sanders was demoted and he
instant charges relate to Respondent's alleged unlawful refusal to recall and
reemploy her.
1' While Moran could not recall the precise day, he conceded that on one
occasion he observed Sanders weanng a union T-shirt. Sanders' and Harry
Dunnigan's testimony that they both wore the union T-shirts for the first
time on July 28, the same day that Sanders was demoted, is rejected. On the
basis of demeanor and the consistency and plausibility of their testimony, I
find both of them to be unreliable as witnesses. Significantly, it is noted that
Dunnigan stated in his affidavit to the Board agent that they wore the union
T-shirts for the first time on July 21. With regard to Sanders. it is noted that
his poor recollection in some key areas tend to reflect adversely on his credi-
bility. Thus he was asked whether the personnel director told him why his
supervisor was not satisfied with his work and responded, "I don't remember
him telling me why. I asked him, but I don't remember his answer."
71 I find the characterization of employees who supported the Union as
"clowns" not to be violative of Sec. 8(aXI) for reasons discussed more fully
infra.
I Sanders stated in an affidavit given to the Board agent, "I never had any
people regularly under me. just temporarily. They would send other people
from other departments."
706
CARROM DIVISION, AFFILIATED HOSPITAL PRODUCTS
had reverted to his former position, no one took Sanders'
place as leadman.
The personnel director also told Sanders in the presence
of his supervisor, Curly Vinson,'9 that Vinson was of the
view that he (Sanders) was of no help to him as leadman
with regard to the flow of production.
In carefully weighing the factors for and against Respon-
dent discriminatorily demoting Sanders, I find that the fac-
tors militating against a violation predominate. In this re-
gard I note particularly that Sanders was admittedly a
leadman on "probation" and that the record is devoid of
any probative evidence tending to show that Respondent
otherwise violated the Act.20
In sum, I find that the General Counsel has failed to
establish by a preponderance of the credible evidence that
Respondent, by demoting Sanders to his former position
with the concomitant loss of pay, violated Section 8(a)(3)
and (I) of the Act. Accordingly, I shall dismiss this allega-
tion.
3. The July 28 letter
The General Counsel contends that by spending a letter
on July 28 to employees whereby Respondent referred to
union-supporting employees who wore union T-shirts at
work as "clowns," it coerced said employees and subjected
them to ridicule within the meaning of Section 8(a)(I) of the
Act. It is undisputed that Respondent disseminated the July
28 letter to its employees in furtherance of its campaign to
defeat the Union's organizational drive. However, counsel
for Respondent argues that "i]f an employer is not permit-
ted this small amount of sarcastic latitude in describing
union advocates, the employer's right of free speech is seri-
ously hampered."
The Board has long recognized that elections are vigor-
ously contested and that emotions frequently run high and
has therefore noted that "derogatory statements about the
other party" and "name calling, though not condoned, will
not be grounds for setting aside elections."" It is noted that
the Union for its part referred to Moran on a number of
9I Respondent did not advance any reason for not calling Vinson as a
witness. It is noted, however, that Vinson was no longer employed by Re-
spondent at the time of the hearing.
20 Thus, the record reveals that a number of other employees wore union
T-shirts or buttons at work, and there is no allegation or evidence tending to
show that any of these employees, including witness Dunnigan, were ever
threatened or otherwise discriminated against. Brinkley Walker, one of these
individuals, was subseqently promoted to section supervisor.
"1 See Hollywood Ceramics Conpany. Inc., 140 NLRB 221. 224, fn. 6
(1962).
occasions in its literature both before and after the disputed
July 28 letter in highly unflattering terms. Thus in an earlier
campaign flyer the Union wrote as follows:
Moran wants to continue to make his bank account
larger with the money you earn through your hard
work and sent the rest of the millions off to St. Louis to
the rest of the Far Cats. [Emphasis as in the original.]
[Resp. Exh. 6(b).]
On July 24, in another election compaign flyer, the
Union asserted, inter alia, that Moran's days of "lying" and
"cheating" will be over after the election (Resp. Exh. 6(a)).
In still a later campaign flyer the Union compared Moran
with Hitler (Resp. Exh. 6(c)).
Under all the circumstances, noting that the parties were
engaged in a hotly contested election campaign and (more
significantly) that Respondent's July 28 letter is free of any
threats, I do not find its reference there to employees wear-
ing union T-shirts as "clowns" coercive or otherwise unlaw-
ful. 2? Accordingly, I shall dismiss this allegation.
CONCI.USIONS OF LAW
I. Respondent, Carrom Division, Affiliated Hospital
Products, Inc., is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Furniture Workers of America, Local 282,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The General Counsel has not proved by a preponder-
ance of the credible evidence that Respondent has violated
Section 8(a)(4), (3), and (1) of the Act.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in these proceedings, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER'3
The amended consolidated complaint is hereby dismissed
in its entirety.
"See, e.g.. Serv-U-Stores, Inc., 225 NLRB 37, fn. 7 (1967), wherein the
Board did not find unlawful "Respondent's disparagement of the employees
and the union representatives as 'trash'."
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
707