Isaacson-Carrico Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 6, 1972

200 N.L.R.B. 788 (N.L.R.B. 1972)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Isaacson-Carrico Manufacturing Company and Texas
District Council, International Ladies Garment
Workers Union , AFL-CIO Cases 23-CA-3790,
23-CA-3895, and 23-RC-3498
December 6, 1972
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 7, 1972, Administrative Law Judge'
Bernard J Seff issued the attached Decision in this
proceeding Thereafter, the General Counsel, Re-
spondent, and the Charging Party filed exceptions,
Respondent filed cross-exceptions, and the General
Counsel and Respondent filed briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith
We agree with the Administrative Law Judge that
Respondent, by laying off 11 of its employees on
August 26, 1970, and by failing to reinstate certain
other employees at the conclusion of the strike which
ended on February 15, 1971, did not violate Section
8(a)(3) and (1) of the Act We also agree that
Respondent's objections to the November 6, 1970,
election should be overruled and that the Union
should be certified as the bargaining representative
for the employees in the unit We do not agree,
however, with the Administrative Law Judge's
disposition of certain Section 8(a)(1) violations
alleged in the complaint 2
On August 24, 1970, Supervisor Zapalac spoke to
employee Jaksch and asked if she had attended the
union meeting the previous day Zapalac also asked
how many employees were present at the meeting,
who the union organizers were, where they came
from, and what promises these organizers had made
We find that by this conduct Respondent violated
Section 8(a)(1) as alleged in the complaint
On the same day Supervisor Zapalac had a
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Respondent s original exceptions related only to the Administrative
Law Judges overruling its objections in the representation case After
exceptions were filed to the Administrative Law Judge s dismissal of the
complaint Respondent sought permission to file cross-exceptions to the
Administrative Law Judge s findings in the unfair labor practice case to the
effect that Supervisor Sauers engaged in conduct violative of Section 8(a)(l)
conversation with employees Kutach, Luco, Benavi-
dez, and Morton Zapalac asked how the union
organizational campaign got started, how the em-
ployees had managed to keep the matter quiet so
long, and what benefits the employees hoped to
obtain The Administrative Law Judge found that
because Zapalac was a low level supervisor and,
because she was a personal friend of these employ-
ees, her conduct did not violate the Act We disagree
Interrogation is no less coercive merely because it
comes from a friend Accordingly, we find that by
this conduct Respondent violated Section 8(a)(1)
Again on August 24, Supervisor Nowlin ap-
proached employee Benavidez who had a union
authorization card lying next to her place of work
Nowlin asked if Benavidez had signed the card or
had otherwise joined the Union Contrary to the
Administrative Law Judge, we find that this conduct
violated Section 8(a)(1)
Around the same time, Supervisor Foltyn ap-
proached employees Luco, Kutach, and Jaksch, who
were standing outside the plant, and asked what the
employees thought they would gain by joining the
Union Unlike the Administrative Law Judge, we
find that this conduct constituted interrogation in
violation of Section 8(a)(1)
CONCLUSIONS OF LAW
Based upon the Administrative Law Judge's
findings of fact and on the record as a whole, we
substitute the following conclusions of law for the
Administrative Law Judge's conclusions of law
1 Isaacson-Carrico Manufacturing Company is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Texas District Council, International Ladies
Garment Workers Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act
3 By interrogating employees Jaksch, Kutach,
Luco, Benavidez, and Morton, Respondent has
engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act
4 The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act
5 Respondent engaged in no unfair labor prac-
tices other than as found herein
Permission to file cross exceptions is hereby granted However, we find
Respondent s cross exceptions to be lacking in merit and we agree with the
Administrative Law Judge that Sauers engaged in unlawful interrogation of
employees on August 24 1970 In so finding we do not rely upon Sauers
testimony that she feels an obligation to inform Respondent of the union
activity in the plant but rather on the remarks actually made by Sauers to
employee Jaksch
200 NLRB No 116
ISAACSON-CARRICO MANUFACTURING 789
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Isaacson-Carrico Manufacturing Company, El Cam-
po, Texas, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Interrogating employees concerning their union
membership, activities, and desires
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to self-organization, to foam, join, or assist
any labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities
2 Take the following affirmative action, which
the Board finds necessary to effectuate the policies of
the Act
(a) Post at its plant in El Campo, Texas, copies of
the attached notice marked "Appendix "3 Copies of
said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by its
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to its employees
are customarily posted Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges that
Respondent violated the Act other than as found
herein
IT IS FURTHER ORDERED that Respondent's objec-
tions to the election be overruled
3 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 interrogate our employees con-
cerning their union membership, activities, or
desires
WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities
ISAACSON-CARRICO
MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone
713-226-4296
TRIAL EXAMINER'S DECISION
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Texas District Council,
International Ladies Garment Workers Union,
AFL-CIO, and that , pursuant to Section 9(a) of the
National Labor Relations Act, as amended, the said
labor organization is the exclusive representative of
all the employees in the unit found appropriate
herein for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment,
or other conditions of employment
STATEMENT OF THE CASE
BERNARD J SEFF, Trial Examiner Based on a charge
filed on October 21, 1970,1 by the Texas District Council,
International Ladies Garment Workers Union, AFL-CIO
(hereinafter referred to as the Umon), against Isaacson-
Carrico Manufacturing Company (hereinafter variously
referred to as the Respondent or the Company), the initial
complaint in Case 23-CA-3790 was issued on April 1,
1971 Thereafter a second complaint, Case 23-CA-3895,
was issued on May 10, 1971 An election was held on
1 All dates refer to 1970 unless otherwise specified
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 6, 1970, which was won by the Union Timely
objections were filed by the Company in Case
23-RC-3498 The Regional Director issued appropriate
orders of consolidation and the consolidated case came on
for hearing on various dates between July 14 and July 29,
1971, before me in Wharton, Texas In essence the
complaints alleged that Respondent engaged in unlawful
interrogations, discrmunatorily laid off 11 employees 2 for
2 days, August 26 and 27, and at the conclusion of a strike
on February 15 or 18, 1971, the Company did not reinstate
19 strikers who made unconditional offers to return to
work Respondent admitted jurisdictional facts but denied
the commission of the alleged unfair labor practices
Upon the entire record3 in the case, and from my
observation of the demeanor of the witnesses while
testifying under oath, and upon the briefs submitted by the
General Counsel, the Respondent, and the Charging
Union, all of which have been duly considered, I make the
following
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent is a Texas corporation with its principal
office and place of business located at 210 East First Street,
El Campo, Texas, where it is engaged in the manufacture
of infants', toddlers', girls' and Juniors' lingerie, sleepwear,
loungewear, and robes
During the past calendar year Respondent sold and
shipped goods valued in excess of $50,000 from its El
Campo, Texas, facility directly to points located outside
the State of Texas During the same calendar year
Respondent purchased goods valued in excess of $50,000
from enterprises outside the State of Texas, and said goods
were shipped directly to Respondent's El Campo, Texas,
facility
Respondent admits and I find that the employer is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
Background
The Company operates a plant in El Campo, Texas It
employs approximately 115 workers , approximately 85 of
whom are engaged in production and the balance of whom
handle office , design, and shipping functions The work
force fluctuates in accordance with Respondent's seasonal
operations The Company has a spring and summer
2 Guadalupe Arrambide Selia Benavidez Gladys Bittner Mearlean
Farrel Lillian Hahn Evelyn Jaksch Lonne Molina Evelyn Novak,
Barbara Otradovsky, Aurora Quintero and Linda Zbranek
3 The record consists of six volumes All volumes were received in due
course except for volume III The missing volume was withheld by the court
reporter who had a dispute over pay with the reporting service from August
season, a fall or back-to-school season, and a holiday
season In each of the seasons, new styles are added to
correspond to the outerwear fashions of the particular
season Respondent designates its employees as permanent
or regular, temporary or seasonal, trainees are temporary
workers who have never worked for the Company before
No previous efforts at unionization have ever been made
before approximately August 1970 The Company's super-
visory hierarchy is as follows
Gerald C Collier President
Edwin Richter Vice President and
Production Manager
Mary Ellen Benavidez Production Coordinator
Flonne Sauers Cutting Department
Supervisor
Cleo Zapalac Day Supervisor
Ruby Nowlin Night Supervisor
Hazel Foltyn Office Supervisor
Sequence of Events
Respondent's plant is located in El Campo, a small town
in Texas Sometime in June or July 1970, one of the
Company's employees, Linda Zbranek, wrote a letter
requesting a union representative to call upon her
Thereafter a number of meetings were held among a group
of employees in their homes The organizational campaign
accelerated until August 23 at which time it began in
earnest At this meeting AFL-CIO Representative Lopez,
together with John Vickers, the Union's International
representative, were present at the commencement of
active card signing At this time approximately 25
employees signed union cards These 25 employees agreed
to serve as the organizing committee and a telegram dated
August 23 was sent by the Union to the Company
identifying the members of this committee to the Respon-
dent
A card signing and handbilhng drive began the next day
and during the morning and afternoon of August 24 and 25
many employees were approached who signed cards in the
street close by the employee entrance to the factory
During this period both Lopez and Vickers, together with
some members of the organizing committee, actively
engaged in this campaign As part of the Union's strategy,
on August 24 the Union sent a demand for recognition and
bargaining to the Company An additional list of employ-
ees described as being active in the Union was also
addressed to the Company by telegram dated August 26 It
is conceded by the General Counsel that the Respondent
did not receive this wire until August 27
The demand for recognition and bargaining was denied
by the Respondent By this time, having signed up a large
number of employees, the Union filed an unfair labor
practice charge against the Company alleging that it
represented a majority of the employees and claiming that
12 until October 14 Volume II ends at page 348 There appears to be a gap
of 163 pages between the end of II and the beginning of IV A different
reporter transcribed volumes IV through VI who did not know where the
missing volume III left off This reporter selected page 601 as the beginning
of volume IV There are no missing pages in the transcript
ISAACSON-CARRICO MANUFACTURING
the Respondent refused to bargain with it This charge was
dismissed and the Regional Director 's dismissal was
sustained on appeal by the Board in Washington
When the Company became aware of the Union's
appearance on the scene it consulted counsel Both the
Company's president, Gerald C Collier, and its vice
president and production manager, Edwin Richter, deliv-
ered speeches to the employees who were assembled in the
plant on both the day and night shifts during August 26
These talks expressed antiumon sentiments but the
speeches were within permissible legal limits and the
General Counsel did not allege in his complaint that the
talks were illegal
In the course of Richter's speech he made one oblique
reference to layoffs but contented himself with the
statement that while layoffs were a fact of life in the
industry Respondent was attempting to alleviate that
problem and hoped to arrive at some reasonable solution
to it it is significant to note that despite the allusion to the
efforts the Company was making to minimize layoffs,
within a short time after the termination of his talk, the
Company notified 11 employees that due to "no work"
they would be laid off for 2 days, August 27 and 28, but the
11 employees were all instructed to report back to work on
Monday, August 31
The timing of these events requires careful scrutiny The
Union surfaced for the first time on August 23 Active card
signing took place both inside and out of the plant on
August 24, 25, and 26 Richter and Collier spoke to the
assembled employees on the afternoon of August 26 No
intimation was given in the course of the speeches of an
imminent layoff Within a very brief time after the
conclusion of the talks notice of a 2-day layoff was given to
11 employees At the least the layoffs are shrouded with
suspicion The General Counsel argued on the theory that
there was no economic justification for the layoffs but they
were motivated by the Company's intention to demon-
strate to the employees that it had "muscle " In other
words being active and/or affiliated with the Union could
cost them their jobs and certainly the loss of wages for the
2-day layoff The Respondent contends that it had clear
justification for the layoffs which were necessitated by
purely economic considerations According to the Compa-
ny the plant had become out of balance because there were
three bottlenecks at the machines and its supply of lace
and trim had run out thus making it necessary to order a 2-
day layoff so that it could catch up with its production
needs and again provide steady work for the employees
The General Counsel takes the position that there was
plenty of work consisting of bundles of cut material
scattered throughout the plant and it would have been
possible to so lay out the work by rearranging work
assignments so that no layoff need have occurred when it
did A more detailed analysis of the factors relating to the
layoff will be set forth infra
As later events unfolded, on the day before the I1
employees were instructed to return to work (Sunday,
August 30), a mass meeting was conducted by the Union at
which time the employees were exhorted to go out on strike
in order to compel the Company to sit down and bargain a
contract with the Union without the delay which usually
791
takes place while awaiting the mechanics of a Board-
conducted election to run their course The strike com-
menced on August 31 and continued until February 15,
1971, at which time the Union called off its strike and
unconditionally offered to return all employees to work
The plant continued to operate during the strike with
replacements Subsequently , on November 6, 1970, an
NLRB consent election did take place at which the Union
was elected by an overwhelming majority of the Respon-
dent's employees The Union received 73 votes and 14
votes against it The election was agreed to by the parties
based on a stipulation for consent election in Case
23-RC-3498
After sustaining this defeat at the polls the Respondent
filed objections to the election in Case 23-RC-3498 In
view of the fact that the objections encompassed conflicts
in the testimony of certain witnesses , the Regional Director
ordered that the "R" case be consolidated with the pending
"C" cases and the entire matter was heard by me in a single
proceeding The nature of the objections and my conclu-
sions as to the facts and the applicable law will be
discussed supra in a separate section of the instant decision
A Alleged Illegal Interrogation
While Evelyn Jaksch was working at the cutting table on
August 24 between 8 30 and 9 a in, she had a conversation
with Supervisors Cleo Zapalac and Florme Sauers Zapalac
asked Jaksch if she had been at the meeting the previous
day This reference was to a union meeting Jaksch
answered "Yes" and she also volunteered that her name
had been on the first telegram sent by the Union on August
23 Sauers asked how long this had been going on Jaksch
replied that there had been a number of meetings Zapalac
asked how many girls were present , who were the Union
guys, and where did they come from Zapalac asked what
increase in wages had been promised by the Union Jaksch
replied that no promises were made but the Union men
indicated what the wages in Respondent 's plant should be
Zapalac said the union activity had been kept quiet and
that nothing had been known about it around the factory
Respondent did not call Zapalac as a witness Sauers was
called and although she did not deny that a conversation
had taken place she said that she did not recall talking to
Jaksch about the Union The vagueness of her reply and
the clear and direct way in which Jaksch described the
conversation persuade me that the conversation did take
place and in the manner described by Jaksch In the course
of Sauers' testimony she made the following statement
I have an interest in the Company I love that
Company and I have worked there 20 years And if I
feel like they should know something that is going on, I
am going to tell them
Not only did Sauers indicate by the above-quoted
testimony where her allegiance lay but it is clear that she
intended to report as much as she knew about the
employees ' union activity to her bosses
The General Counsel contends that this conversation
constitutes illegal interrogation Respondent argues that
the remarks made by Sauers did not rise to the level of
unlawful conduct, that it was a brief informal conversation
freely participated in and represents an isolated incident
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that despite Sauers' hazy recollection and her
equivocal denial that anything was said about the Union
the conversation did in fact take place and in the manner
testified to by Jaksch It should be again noted that
Zapalac did not testify However innocent some of the
comments appear to be, the quoted portion of Sauers'
remark that she would report to the company "if she felt
that they should know something that is going on, I am
going to tell them" is a clear threat to report to the
Respondent on the employees ' union activities In
N L R B v West Coast Casket Co , 205 F 2d 902 , 904, the
court held
Interrogation as to Union sympathy and affiliation has
been held violative "because of its natural tendency to
instill in the minds of the employees fear of discnmma-
tion on the basis of the information the employer has
obtained "
Sauers' remark represents a clear threat to report on the
employees' union activities and is therefore violative of
Section 8(a)(1) of the Act I so find
During a coffeebreak on the morning of August 24,
Zapalac had a conversation with a group of her friends
The assemblage included Betty Kutach (one of the prime
movers of the Union), Betty Luco, Selia Benavidez, and
Jean Morton Zapalac asked how the Union got started
and how it was kept quiet so long The employees said
some of the girls (without reciting names) began to talk
among themselves , formed a committee , held some
meetings , and began to have the girls sign union cards It is
not clear from the record as to who initiated this
conversation It did take place in a friendly atmosphere
while the girls were away from their work stations having
coffee The testimony also shows that this group of girls
were all friends and had been taking coffeebreaks together
for a long period of time The advent of the Union was
apparently a surprise to the management and to the
inexperienced employees and was a topic of great interest
to everyone in the plant since it was the first exposure any
of the plant personnel had to any labor union Zapalac,
who is at the lowest rung of the supervisory hierarchy, was
naive enough to ask if she could join the Union She was
told she could not because she was a supervisor
The General Counsel argues that this conversation
constitutes illegal interrogation Respondent claims this
informal talk, among friends in circumstances where the
atmosphere was relaxed and where there was no threat of
reprisal , was innocuous and not violative of the Act The
Company further points out that Zapalac asked "how" the
Union had its genesis and not "who" started the Union
Under all the circumstances surrounding this incident and
the further fact that interrogation is not a per se violation of
the Act, I agree, find no illegal interrogation, and
recommend that this allegation in the complaint be
dismissed
After the close of the shift at 3 30 p in when employees
Kutach , Luco, and Jaksch were outside the plant , the office
supervisor, Hazel Foltyn, asked Luco to come to the side
door Foltyn then left the plant and asked the group what
the girls thought they would gain by joining a union She
said the girls were earning $1 60 per hour , what more could
they expect? Foltyn stated that the Respondent could not
grant greater work benefits than it could afford Foltyn
then laughed and said she thought the whole situation was
hilarious The girls said they were serious about the
Union-it was not funny Foltyn remarked that "the
employees had come to the Company for ajob and it was
not the Company coming to the employees for ajob " That
concluded this verbal exchange The General Counsel
takes special exception to the last quoted statement
contending that it represents a veiled threat of discharge
In the context of the circumstances and actual words
used dunng this incident , it appears that the General
Counsel 's interpretation of Foltyn's quoted remark is
strained and not what a reasonable person would draw
from the words spoken I therefore find no violation in said
incident and recommend that this allegation be dismissed
On August 24 employee Irene Benavidez had a conversa-
tion during the night shift with her supervisor, Ruby
Nowlin Benavidez had a union card next to her sewing
machine Nowlin asked if Benavidez had signed the card,
Benavidez testified she replied "yes" and then said most of
the girls were signing Nowlin in her testimony stated
Benavidez answered Nowlin's question "no " I do not
regard this apparent conflict as being significant Either
way Nowlin followed her first question with a second one
asking if employee Margaret [Garcia] told her most of the
girls were signing to which Benavidez said it was not
Margaret but two other ladies Nowlin admitted that she
asked another employee, Hedy Starling, if she had signed a
union card The General Counsel contends that such
questioning constitutes illegal interrogation Respondent
characterized the incidents concerning Nowlin as isolated
questions carrying no threat or special import I agree and
conclude that the questions were not put in a threatening
manner and do not add up to illegal interrogation I
recommend that this allegation in the complaint be
dismissed
Admittedly, if the atmosphere in the factory had been
charged with Company union animus, some of the remarks
relied on by the General Counsel as evidence of illegal
interrogation might be considered to be borderline viola-
tions of the Act No such situation exists in the instant
case The single violation which I have found concerns the
threat of Sauers to report employee union activities to her
superiors Apart from this single illegal interrogation, the
totality of the evidence in the record does not reveal a
pattern of proscribed interrogation
B Alleged Discriminatory Layoff of 11 Employees
1 Background and further details concerning the
layoff
Passing reference has already been made to the circum-
stances surrounding the layoff of 11 employees on August
27 and 28 in the sequence of events section of the instant
decision supra
Approximately 75 percent of the Company's production
consists of the manufacture of sleepwear In addition to
this merchandise the Respondent also manufactures a so-
called panty line The panty line goes through a standard-
ized process This work composes approximately 25
percent of the Company's products Sleepwear garments
ISAACSON-CARRICO MANUFACTURING 793
are fashion goods which require the use of many specialty
machines which only certain operators are trained to use
The laid off employees were engaged in the fabrication of
sleepwear
The majority of the laid-off employees were designated
on its records as trainees It is Respondent's usual practice
to hire a large number of new employees who had in the
past been seasonal operators who had not progressed to the
status of permanent workers Employees hired as trainees
are told they are filling temporary positions If there are
openings for permanent or regular operators at the end of
the season (around Thanksgiving) and if they have
demonstrated their efficiency, they may be offered a
regular job Those not retained are laid off
Respondent testified that most of its business is done
with department stores Manufacturing for the fall or busy
season usually begins in May depending on the availability
of materials Department stores have a fixed policy that fall
season fashion goods must be shipped no later than August
25 The Company's orders have automatic cancellation
provisions which spell out that orders are cancelled if the
merchandise is not shipped by August 25 As a conse-
quence of these facts the Company's brief explains, "thus it
was not abnormal for periods of heavy overtime in early to
mid August to be followed by short layoffs and, in fact,
this typical situation once again occurred in August 1970 "
During the period in question, Respondent ran short of
trim and lace4 and this, together with bottlenecks at the
piping machines, safety stitch and shirring machines,
interfered with the flow of production and necessitated a
brief layoff in order to get the factory back into sequence
The General Counsel's brief sets forth a detailed
statement concerning the 11 employees who were laid off
By reference to a large number of IBM computer printouts
the General Counsel seeks to demonstrate that there was
no business need for the layoff which commenced on
August 27, 1970 By listing the number of jobs to be
performed, the number of hours of work this would
require, the machines upon which the work would be
performed, the operators who would or could perform
them, and the styles of merchandise involved, it is argued
that no layoff need have taken place when it did The
General Counsel states that there was an abundance of
work to be done throughout the plant and the Company
was in the midst of its busy season In addition, the layoff
took place within 2 or 3 days of the commencement of the
Union's organizational campaign It was asserted that
layoffs in past years did not take place in August In
support of this position the General Counsel relied on the
testimony of a number of witnesses who stated that while
layoffs did occur from time to time they could not recall
that such events took place in August
Respondent countered this testimony with evidence from
Collier, Richter, Production Coordinator Mary Ellen
Benavidez, and a number of sewing room operators
Benavidez testified that she has been working for Respon-
dent and its predecessor for 17 years During this period
she said it was a regular and frequent occurrence that
layoffs were ordered and took place during the second and
third week in August Benavidez testified in a forthright,
direct manner and her recital had the ring of authenticity I
credit her version concerning layoffs because she im-
pressed me with her intimate knowledge of the operations
in the plant and her candor and demeanor while on the
stand On the other hand, General Counsel' s witnesses
were vague and uncertain in urging that, as far as they
remembered, there never were layoffs during August
because that was the Company's busy season and there
was plenty of work at the sewing machines throughout the
plant during the days in August in question Further,
Benavidez was in a much better position to know the
situation at first hand because her major responsibility as
production coordinator was to keep the factory operating
at its maximum capacity With respect to the amount of
goods which admittedly was piled up around the machines
and which the General Counsel emphasized as a major
basis for his conclusion that layoffs do not occur when
there is work to do around the machines, Benavidez
testified trenchantly that if a time ever came when there
was no merchandise in the factory to be fabricated the
management would have to lay off all the employees
The thrust of President Collier's testimony on this point
was to the effect that the problem of attempting to avoid
layoffs is a perennial matter of concern not only to him but
also to his competitors It hardly needs argument to
understand that layoffs slow down production and thus
reduce profits Richter, for his part, has the special
responsibility as plant manager to attempt to avoid layoffs
as far as this is possible and the best production record that
he can achieve redounds to his credit as an efficient plant
manager It should also be added that both Collier and
Richter favorably impressed me as truthful and direct
witnesses both of whom had firsthand knowledge of the
facts as to the plant's efficiency in operation and the past
history of layoffs
Both the General Counsel and Respondent devote
considerable verbiage and pages in their briefs to the
question as to who among the I1 workers were known to
the Company as being union adherents The record
supports my conclusion that many, if not almost all, the
layoffees had signed up with the Union It seems clear that
Respondent was not influenced in making the layoff by
selecting workers for a 2-day layoff based on membership
or nonmembership in the Union Whoever was laid off
would have had to have been identified with the Union
since most of the employees were members of the
organization
2 The strike was not caused by the layoff
In the course of the well attended general meeting of the
employees on Sunday, August 30, 1970, both union
representatives, Lopez and Vickers, exhorted the employ-
ees to go on strike They stated the basic underlying reason
for the strike was to exert pressure on the Respondent to
promptly recognize the Union and agree to a collective-
bargaining agreement granting immediate economic bene-
fits to the employees They also pointed out that the
4 The necessary lace is known as wide cluny lace The record shows that
this material was not available on August 27 and August 28 It aid not
arrive at the plant until September 2 and September 10
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers were in a good position to accomplish their
objectives by striking at a time when the Company was in
the midst of its busiest season It was also explained to the
workers that they would lose their advantage if they waited
for the Board to conduct an election because of the
amount of time it takes for the NLRB machinery to grind
out a decision ordering an election
The record contains other compelling evidence that the
Union had decided to pull the workers out on strike prior
to the time any layoffs took place The Union had ready
for immediate distribution printed ballots to expedite a
vote in favor of a strike at this general meeting These
ballots were prepared and printed before the Umon had
knowledge of the layoffs It appears indeed that the layoffs
did not occur until after the ballots had been printed
It is significant to point out that neither Lopez nor
Vickers mentioned the layoffs during the course of their
talks from the rostrum urging the employees to vote to
strike This is so even though the record indicates that after
the general meeting was over, and the strike had been
overwhelmingly voted, Lopez engaged in informal talk
with a small group of the employees at which time he was
told about the layoffs and he remarked that the strike was
an unfair labor practice strike caused or contributed to by
the layoffs
It should also be noted that Lopez, in an interview which
took place some weeks before the organizational campaign
moved into high gear, made some comments to the local El
Campo newspaper that if a strike did take place among the
Company's employees that such an event would be to their
advantage Furthermore there is testimony in the record,
which I credit, that the union representative, Sarah Calvert,
who was not assigned by the Union to the case until a
considerable time after the workers were on strike, said
that if anybody questioned the people about the strike to
answer that it was caused by Respondent's unfair labor
practices
In view of the above facts it is fair to infer that the
underlying union strategy was to take the people out on
strike to compel the Company to sign a quick contract and
this predetermination was the cause of the strike The
layoffs were not causative but were pretextually seized
upon by the Union to make it appear that the strike was an
unfair labor practice strike from its inception
3 The economic justification for the layoffs
The General Counsel devotes considerable space in its
brief to an analysis of certain computer printouts in an
attempt to demonstrate that the Company's explanation
for its' reason for the layoff does not hold water It is
therefore concluded that if these reasons, taken from the
Respondent's own production records, present no econom-
ic necessity for the layoffs, it was in fact motivated by
antiunion considerations Respondent , for its part, also
expatiates at great length in its brief on its interpretation of
the said computer printouts Needless to say, the Company
reaches an opposite view on its records and concludes that
the computer material supports its contention that the
layoffs took place for purely economic reasons
The 11 employees involved in the layoff are as follows
Guadalupe Arrambide Lorene Molina
Seha Benavidez Evelyn Novak
Gladys Bittner Barbara Otradovsky
Mearlean Farrel Aurora Quintero
Evelyn Jaksch Linda Zbanek
Lillian Hahn
Six of these women are listed on the Company 's records as
trainees The balance are regular employees
The General Counsel states that Arrambide worked
mainly as a clipper She also acted as a floating employee
to the finishing department , the production department,
and the cutting department On August 25 and 26 , she was
laying material in the cutting department According to the
testimony of employee Luco, the cutting department on
some days during this period was working 9 hours a day
Based on this information the General Counsel asserts that
there was plenty of work available for Arrambide during
August 27 and August 28
The Respondent countered that Arrambide was hired as
a trainee on August 5 Whatever work was required was
being performed by regular and senior employees Diana
Coy, Estella Arrambide, Hilda Kubens, and Mary Rees
When the cutting work ran out, the two employees who
had been laying material were laid off
From the above it appears that Respondent 's explana-
tion for the laying off of Arrambide and Quintero indicates
that it was nondiscriminatory and based on economic
reasons and I so find
Sella Benavidez and Barbara Otradovsky (a trainee hired
June 17) did shining work The General Counsel states
that the Company claimed shirring yokes was one of the
production bottlenecks On August 27 Ardie Collins, Anita
Gonzales, and Pat Arrambide were performing shirring
work Kutach was the only employee qualified to do yoke
shining Respondent had only three day shift employees
performing the bottlenecked shining work The General
Counsel contends that the layoff of Seha Benavidez and
Otradovsky, who were capable of doing this work, is
inconsistent with meeting production requirements in
attempting to alleviate the bottleneck On August 27 Ardie
Collins, Anita Gonzales, and Pat Arrambide were engaged
in shining work Kutach was the only employee qualified
to do yoke shirring
According to the General Counsel there was sufficient
work for Sella and Otravosky on August 27 There was no
necessity, due to lack of work, to lay off these employees
and he therefore concluded that their layoff was discrimi-
natory
Respondent states that Seha's primary work was average
shining and this work was so slack during the week of
August 24 that Sella did none of it Seha's number two
operation was the one needlework on which she was
engaged prior to her layoff There were only 33 total hours
The regular operator , Ardie Collins, who was the Union's
chairlady, was one of the employees retained on this
operation Both Sella and Otradovsky could perform only
three of the available operations and between them there
were only 6 hours of work This work was retained for
regular employees Ardie Collins and Anita Gonzales
Other regular employees who perform similar job code 2
work included Betty Kutach, who passed out union
ISAACSON-CARRICO MANUFACTURING 795
literature in the street on August 24 and Natividad Reyes
who, like Kutach, was elected a "picket captain " These
more senior regular employees , despite their obvious union
adherence, were retained for the available work rather than
trainee Otradovsky Otradovsky was scheduled on August
31 to work on garments which first needed a one needle
tuck In order to provide work for Otradovsky, regular
employee Sofia Bustamonte performed the one needle tuck
operation during the 2 days of the layoff
From these facts Respondent contends that the layoff of
Sella and Otradovsky was based on sound business
practices which came about because there was insufficient
work for these two employees on the 2 layoff days in
question This explanation seems reasonable and I there-
fore find that Sella and Otradovsky were laid off for
legitimate business reasons
Gladys Bittner
The General Counsel argues that there was ample work
for Bittner on August 27 According to Respondent,
Bittner's number one operation was doing average one
needle lockstitch work and her number two operation
involved the use of the number 40 machine which was also
operated by Paula Romero Mary Ellen Benavidez testified
that no work was available for Bittner on her number one
operation but work was available on the number two
operation This work was being saved for Romero because
she was a regular employee and Bittner was a trainee who
was hired on June 23 The General Counsel points out that
Bittner spent half her time operating the number 24
machine and the remainder operating the 72 machine The
exhibit relied on to demonstrate these facts also shows that
Gladys Bittner and Paula Romero were the only two
employees qualified to operate this single number two
machine which had 7 hours of available work on the
evening of August 27
The General Counsel claims that there was no reason to
save job code 72 work for Romero because there was work
for her to do on other machines General Counsel reasons
that there was a bottleneck occurring at the number 54
piping operation and to relieve this blockage two other
employees, June B and Viola J , would have been assigned
to this work during the day shift In view of the fact that
Lillian Rodriguez on the night shift was the only employee
in the plant capable of doing the 7 hours of work available
on job code 80 machine, obviously she would have been
assigned that work This would leave only Paula Rodriguez
to perform the available 12 hours of work on the 57
machine
Based on this appraisal the General Counsel concludes
that Bittner, at the beginning of the evening shift on
August 27, had a mimmum of 7 hours of work to do on the
job code 72 machine It is further stated in his brief,
General Counsel's exhibit number 12, that additional job
code 72 work would have been available as production
progressed through the day of August 27 In addition there
would have been work which Bittner could do on the job
code 24 machine There was ample work for that machine
during the day and Bittner and Joyce D were the only
night shift employees qualified to operate those machines
Bittner would have been the logical choice to perform job
code 24 work on the night shift because Joyce D was the
only one qualified to operate job code 32 on either of the
two shifts and there was work available at that machine
For all these reasons the General Counsel urges the Trial
Examiner to find that there was work for Bittner to do on
the evening shift on August 27
Respondent points out that Bittner did the same type of
number one needle work as Sella Benavidez This work was
running low and since, like Sella , Bittner was unable to
perform all of the operations which would have been
available on the morning of August 27, it was unnecessary
for her to do this work While Bittner could do more of the
operations than Sella, work was sufficiently slack in this
operation so that regular employees such as Ardie Collins
could handle it Bittner's second operation involved a
number 40 machine which took care of insertion work
Paula Romero, a regular employee , did the necessary
insertion work on August 27 and 28 in order to provide
work further along the production line for Sella and Bittner
on August 31
It appears from the above that there was insufficient
work for Bittner to perform on the days in question and
therefore her layoff for 2 days was justified for business
reasons I so find
Continuing with the General Counsel's argument with
respect to the other of the 11 laid-off employees , his brief
states that Hahn, Novak, and Benavidez were regularly
assigned to the flat sergers, job code 1 , Zbranek was
regularly assigned to a zigzag shirrer, job code 58 , Jaksch
had as a regular assignment the operation of a zigzag strap
machine , job code 56, and the General Counsel states in
his brief that she was capable of operating the one needle
boxer label machine, job code 27
For night shift employees, General Counsel 's exhibit 11
shows that Mearlean Famel was primarily assigned to a
flat serger,_job code 1, Molina was principally assigned to a
back tack machine , job code 90 The General Counsel
asserts that she was capable of operating the flat sergers
There is a direct conflict in the testimony of employees
with respect to the amount of flat serger work which was
available on the days in question The General Counsel
takes the position that Respondent attempted to create the
false impression that there was very little flat serger work
to be performed on August 27 and 28 He argues that the
record evidence is contrary to this assertion On the other
hand, Mary Ellen Benavidez , whose testimony in my
opinion is to be accorded special weight because of her
firsthand knowledge of the total production picture in the
plant and because she made an excellent impression as a
forthright witness, stated repeatedly from the stand that
there was very little flat serger work to be worked on
during the 2 days in question
Based on his analysis of the record evidence, the General
Counsel alludes to certain of Mary Ellen Benavidez's
testimony that those employees who were laid off could do
flat serger work and were qualified to do in excess of 40 of
the available 181 hours of this work
The General Counsel also argues that Respondent is
estopped from claiming that after the 181 hours of work
had been performed there would be little, if any, additional
flat serger work available The first four pages of General
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel's exhibit 14 shows that for the garments in
production on the morning of August 27 a total of 878
hours of flat serger work was needed to complete those
garments Although this includes the 181 hours, it still
represents a substantial amount of work to be performed
by a few employees It is further claimed that the evidence
is contrary to the position that flat serger work in excess of
the 181 available hours would not have been available until
Monday, August 31 General Counsel's exhibit 12 shows,
as of the time of the layoff, the various styles of garments
in production, the number of dozens of each style in
production, and the remaining jobs in sequence necessary
to complete the various garments From the exhibits
referred to and attachment B to General Counsel's brief,
the documents show that there would have been an
additional 66 hours of flat serger work available after only
7 hours of production time on the 27th
Before elucidating Respondent 's replies to the averments
of the General Counsel set forth supra, it would be helpful
at this juncture to explain the role played by Mary Ellen
Benavidez in the Company's production process as set
forth in Respondent's brief
The initial state of placing goods in production consists
of the issuance of a so-called "cutting deal" This is an
internal paper transaction whereby Edwin Richter issues a
piece of paper showing the style number, colors, size
breakdown, and number of dozens to be cut of particular
styles The cutting deal goes to the computer department
where the master tickets are prepared and sent to the
production area
The Company considers that a style has gone into
production once a deal has been issued Thereafter
production is coordinated by Mary Benavidez through the
use of several tools The master ticket is marked to indicate
which operations have been completed and those that
remain to be done Benavidez also utilizes a daily schedule
sheet containing the names of all operators After making a
tour of the production area and a comparison of the master
ticket, she is able to schedule work for the operators and
style numbers to be performed that day From an
examination of the daily chart the floor girls distribute the
work Through observation of the actual operations and a
review of the master tickets, Benavidez can often detect
production problems due to bottlenecks or shortages of
fabrics, trim, or laces
As had regularly occurred in the past such production
problems once again arose in mid -August 1970 During the
week of August 21, cutting deals were issued for approxi-
mately 1500 dozen sleepwear garments Of the 1500, 600 to
700 dozen were of red nylon which was available This red
nylon was for styles known as the 16 and 18 series, all of
which required basically the same operations Every one of
the 600 to 700 dozen in the 16 and 18 series required the
same piping trim around the yoke There were only two
machines and three operators capable of performing the
necessary piping operation The Company was thus limited
on these styles by available machinery and simply could
not apply the piping fast enough to keep the series flowing
into other operations
A similar problem was created by the influx of about 700
dozen quilted and flannel styles which, because of the
heavy fabric, required a wide seam applied by a safety
stitch machine of which the Company had only three
Additional production coordination problems were
created by the fact that the print fabrics for the holiday line
had not yet been delivered and certain trims and laces also
had not been received
During the week prior to the layoff , the 16 and 18 series
arrived on the production floor Each garment of this style
required a zigzag piping for which there were only two
machines available By the end of August 26 practically all
of the easy or flat serger work required for the 16 and 18
series had already been completed and very little of such
easy work was available on August 27 and 28 The nature
of the bottleneck is shown by two General Counsel exhibits
which reflect that while 127 hours of the zigzag operation
were required to complete the garments , only 23 hours of
such operation were available at the commencement of
work on the morning of August 27 While there was a
continuing stream of work beginning to flow through this
operation there were only two machines available to
handle the flow
Similarly a bottleneck was forming in the safety stitch
operation on the morning of August 27 All quilted robes
and flannels then in production had to go through a safety
stitch operation for which there were only two available
machines There were only 39 hours of work available for
this operation at 7 a m on August 27 and 28 as 342 hours
of work of the safety stitch operation were necessary in
order to make these garments ready for successive
operations
The 70 series which was in production at this time
needed a lace which had not yet amved and had reached
the point where it had come to a virtual standstill The
Company had already jumped a sequence or two on this
series in order to keep the employees busy The jumping of
a sequence is not a favored practice and cannot be done
with every style or operation It was done with the 70 series
to keep the operators busy
Mearlean Famel
Mearlean Famel was hired on June 15 as a trainee
Respondent claims that her number one operation was the
setting of collars During the week of August 24, only
about 40 percent of the styles going through production
had collars Work flowing through the collar setting
operation had become so slack that she was not doing her
regular job on the evening of August 26 She was being
switched from job to job to keep her in work During
August 27 and 28 while Famel was off, a regular employee,
Juanita Gonzalez , was being used to do whatever collar
work was available In addition an eyelet operation which
Famel was not qualified to perform was needed before
additional collar work would be available for Famel In
point of fact, a regular employee , Mildred Veselka, was
performing the eyelet operations on August 27 and 28 in
order to prepare sufficient garments for Famel to work on
upon her return on August 31 It is argued by the Company
that two regular employees were retained rather than
Famel who was a trainee , and the work being done by
them was for the purpose of providing work for Famel
Famel indicated that there was work which could have
ISAACSON-CARRICO MANUFACTURING 797
been done by her Famel's number two operation involved
easy serger work, the majority of which had already been
completed on the 16, 18, and 70 series Whatever small
easy serger work remained to be done was handled by
regular employees except that in one case a trainee, Diana
Quintero, had to be retained so that she could perform a
prefatory operation which had to be completed so that
Jaksch, who was laid off, would have work when she
returned to the plant on August 31
Lillian Hahn
Hahn was hired as a trainee on July 7 Her number one
operation was easy serger flat work of which there was
little to be done as explained supra Many of the trainees
fell in this same area Thus a trainee was laid off for 2 days
while regular employees were retained to do the available
work
Evelyn Novak
Respondent's brief states that Novak was a trainee who
was hired on July 8, and had not yet trained for any
secondary operations There was not enough serger work
available which this employee could perform If she had
returned to work on August 31, she was scheduled for easy
serger work on quilted robes Before she could do this
work, the shoulders and sleeves had to be set in and closed
A regular employee, Dorothy Vengler, did this work on
August 27 and 28 and she had seniority that dated back to
1965
Lorme Molina
total lack of work in Zbranek's operations and the
Company's willingness to retrain her in order to keep her
in work, it can hardly be said that Respondent had any
discriminatory motives concerning this employee "
Evelyn Jaksch
Jaksch was a regular employee who was responsible for a
specialized operation known as the setting of straps and the
attachment of trip on adjustable slip straps, job code 56
She was the only employee who performed this operation
Her secondary operation, job code 28, involved a similar
operation on built-up slip straps There was no work in
either of these jobs There was still none of this work
anticipated for August 31, and upon her return from layoff,
Jaksch was scheduled to perform a neck binding operation
on the 16 series which, before it would be ready for that
operation, needed a shoulder operation which was per-
formed during the layoff Jaksch's third operation was a
label job on the number 66 machine Another regular
employee, Mary Aguilar, did the available work on this
operation It should be noted that this was Aguilar's
number one operation There was only one machine for the
operation which was used by Aguilar at night While there
were 32 hours available on this operation the machine was
used by Sophia Bustamonte, also a regular employee,
during the daytime to do one needle tucks in order to
prepare garments to be ready for an operation scheduled
for Barbara Otrodovsky on August 31 Bustamonte was
also engaged in this work on August 26 at which time
Jaksch was performing a placket job which she had been
performing off and on for 2 or 3 weeks before the
layoff
Mohna's last date of hire was January 15 Her primary
job was a bar-tacking operation, job code 90, for which
General Counsel's exhibit 11 demonstrates there was no
work Because of a lack of work of this nature, Molina had
not done any such work for several weeks Molina's
secondary occupation was easy serger work of which there
was none for her to do Molina was scheduled for serger
work on August 31 which required the piping operation
which created one of the bottlenecks A regular employee,
Amparo Accosta, did this work during the layoff in order
to prepare garments for Molina Molina's number 3
operation was the same dot tacking operation which was so
slack that Aurora Quintero was also laid off
Linda Zbranek
Zbranek was a seasonal employee who last returned to
work on June 8 Her primary operation was a zigzag job,
job code 58, which attached trim to pants, slips, legs, and
the necks and bottoms of certain sleepwear General
Counsel's exhibit 11 shows that this operation was
completely idle Similarly Zbranek's secondary operation,
a belt loop job on the number 62 machine, job code 79, was
also idle Zbranek's third operation was easy serger flat
work and the dearth of this work caused a number of
layoffs The Company's brief continues that because of the
total lack of work in Zbranek's primary operations the
Respondent had decided to retrain her on a new machine
beginning on August 11 The brief adds, "in view of the
4 Conclusion concerning the alleged
discriminatory layoff
It is true that once the General Counsel has questioned
the validity of Respondent's justification for the layoff the
burden of further explanation shifts to the Company It
appears clear that Respondent has provided reasonable
and acceptable economic explanations and, at that point,
in order to prevail it was incumbent on the General
Counsel to come forward and prove his contentions by a
preponderance of credible evidence The evidence con-
cerning the layoff does not preponderate in favor of the
General Counsel's contention that Respondent was moti-
vated in making the layoff by antiunion considerations I
therefore recommend that the allegation in the complaint
that the layoff of the 11 employees was discriminatory and
violative of Section 8(a)(3) be dismissed
C The Strike of August 31, 1970, Was Not an
Unfair Labor Strike
It is the theory of the General Counsel that the strike
which commenced on August 31 and lasted until February
15, 1971, was caused by Respondent's alleged discrin ina-
tory layoff of 11 employees Carrying this contention to the
next logical step, the strike was therefore an unfair labor
practice strike which would have entitled all strikers who
unconditionally offered to return to work on February 15,
1971, to be restored to their former or substantially
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent jobs with backpay for the time lost by these
employees
I have found that the strike which the employees
embarked upon was neither caused by nor was it converted
into an unfair labor practice strike
D Respondent's Procedure in Recalling Strikers
Although the General Counsel argued at the hearing that
Respondent failed to reinstate 19 employees at the
conclusion of the strike, in his brief the General Counsel
urges that the Company "reimburse at least 11 unfair labor
practice strikers for any loss of wages suffered as a result of
their not being recalled at the termination of the strike "
The record shows that at the termination of the strike the
Union was given three lists which listed the strikers who
would be recalled, those who would not be returned to
work, and those workers then employed who would be
retained The Union agreed that the returnees would be
called back on a staggered basis over a 3-day period The
Company explained that all regular employees were being
recalled Those not immediately recalled were temporary
trainees or seasonal employees Approximately 48 strikers
were recalled and Respondent dismissed approximately 30
workers hired during the strike The Company states in its
brief that only 19 strikers were not immediately recalled
and many of these 19 have since been recalled
The General Counsel did not argue that recalls should be
in accordance with the Laldlaw doctrine because his
position has consistently been that the strike was an unfair
labor practice strike to which the so-called Laidlaw
principle does not apply This issue was litigated by the
Respondent who contended that the strikers who were
reinstated were those who could handle the Company's
requirements for personnel which prevailed at the end of
the strike, on February 15, 1971
In Laidlaw Corp, 171 NLRB No 175, the Board
enunciated a new policy with respect to economic
strikers in the following language
We hold, therefore, that economic strikers who uncon-
ditionally apply for reinstatement at a time when their
positions are filled by permanent replacements 1)
remain employees, 2) are entitled to immediate
reinstatement upon departure of replacements unless
they have in the meantime acquired regular and
equivalent positions, or the employer can sustain its
burden of proof that the failure to offer full reinstate-
ment was for legitimate and substantial business
reasons
As indicated supra the General Counsel predicates his
arguments with respect to the recall of the strikers on the
basis that the strike was an unfair labor practice strike and
did not address himself to the evaluation of the recall of
employees in the light of the Laidlaw doctrine Conse-
quently he did not controvert Respondent's testimony on
this point that the Company's recall procedure was for
legitimate and substantial business reasons The Respon-
dent's evidence therefore, not having been controverted,
stands undenied in the record As a result it would unduly
burden the instant decision to detail the Company's
evidence on the subject of the recall of employees Suffice
it to say that the Respondent did sustain its burden of
proof thus meeting the requirements of the Latd'law
decision
E Respondent's Objections to the Election
The parties executed a Stipulation For Certification
Upon Consent Election in Case 23-RC-3498 as the result
of which an election took place on November 6, 1971
Seventy-three employees voted for the Union, 14 against
the labor organization, and there were 24 challenges which
did not affect the results of the election
The Employer filed objections to the election and to
conduct affecting the results of election on November 13,
1971
In sum the objections allege that
(1) The petitioner engaged in a campaign of false and
fraudulent material misrepresentations designed to im-
properly influence the employees,
(2) The petitioner created the impression that a union
victory would allow either the union or the government to
operate the Employer's business solely for the benefit of
the employees,
(3) The Employer had been cheating both the employees
and the government for years,
(4) The Internal Revenue Service had been notified of
the Employer's alleged unlawful conduct and the employ-
ees would receive backpay after the IRS had inspected the
Employer's records which were misrepresented as having
been kept in an unlawful manner,
(5) The Employer would show through the use of a
written handbill that petitioner deliberately misrepresented
the law and sought to create the wrong impression that the
United States Government was lending its support to the
Petitioner and that the Government desired the employees'
support of the Petitioner, further that these misrepresenta-
tions were material and made in circumstances from
adequately or effectively replying and in circumstances
which did not permit the employees to evaluate the truth or
falsity of these claims,
(6) Petitioner engaged in a campaign of threats, coercion,
and intimidation so as to deprive the employees of their
right to a free and uncoerced election,
(7) Petitioner threatened employees with physical harm if
they expressed opposition to Petitioner or those who
refused to support Petitioner and/or the strike engaged in
during the preelection period thus depriving the employees
of their right to a free and uncoerced choice in the election,
(8) Petitioner threatened employees who opposed the
Union with the loss of their jobs in the event Petitioner
won the election,
(9) The Union engaged in massed assemblage and
picketing of the Employer's premises, followed automo-
biles driven or carrying the Employer's employees,
(10) The Union created obstacles to free ingress and
egress from entrances to the plant,
(11) The Union accosted and threatened the employees
who were working with insulting and abusive language and
with the use of force and violence, engaged in the same or
similar conduct directed against those strikers who wished
to cease the strike,
(12) The Union misled employees into believing they had
no choice except to actively support the strike,
ISAACSON-CARRICO MANUFACTURING 799
(13) The Union, by engaging in a strike during the
preelection period and by using objectionable means of
forcing adherence to the strike thus preventing the
existence of an informed electorate, destroyed the labora-
tory conditions which the Board seeks to maintain in such
elections,
(14) The Union made false and inflammatory racial and
religious appeals,
(15) The Employer would show that during the day of
the election agents and representatives of the Union
advised many eligible voters that NLRB Field Examiner
Robert Markey was present in El Campo to take
complaints from eligible voters,
(16) Markey interviewed and took affidavits from
numerous voters both shortly before and shortly after such
persons exercised their franchise,
(17) Such conduct on the part of the NLRB representa-
tive on the very day of the election created an atmosphere
of fear and confusion and tended to indicate to the
electorate not only that the allegations in Case
23-CA-3790 were true but that the NLRB was prejudiced
in favor of the Union Such conduct tended to destroy
confidence in the election process and thus tainted the
election and deprived the employees of a free and
uncoerced choice in the election
The Regional Director ordered on April 2, 1971, that
both the "R" and "C" cases be consolidated and heard for
the purpose of taking testimony in 23-RC-3498 to resolve
the issues raised by all of the Employer's objections
Respondent argues with emphasis, numerous exhibits,
and voluminous citations to adjudicated cases that the
facts, as it knows them to be, require that the election be
set aside and a new election held at an appropriate time
With respect to union campaign literature, some of it
consists of throwaway handbills which depict a figure
dressed like "Uncle Sam" in a suit of stars and stripes One
of the leaflets shows "Uncle Sam" pointing his finger at the
onlooker in a manner reminiscent of the world war poster
which read, if I remember it correctly, "Uncle Sam Needs
You " This throwaway, exhibit "A," states on its face
"Here's the law " There then appears a truncated version
of Section 7 of the Act reciting the rights of the employees
to organize for purposes of collective bargaining but it
conveniently omits the concluding statement of this section
to the effect that employees also have the right to refrain
from such activity Respondent offers this exhibit to show
that the employees were misled by this misrepresentation
In this connection it should be said that in cases too
numerous to require citation the Board does not attempt to
police campaign literature which is characterized as
"puffing" and equated with the typical political campaign
matter which frequently contains inaccurate statements
and/or quotations torn out of context This type of election
material is left to the good sense of the voters to evaluate it
for what it is worth It seems clear that such material is
similar to comic strip extrapolation and even if the
electorate at the plant had no access to the precise and
complete language of Section 7 of the Act it is unlikely that
it was read in such a manner as to unfairly influence the
results of the election
Statements admittedly made by representatives of the
Union that the Employer had been cheating both them and
the Government are of a more serious nature Here too it
should be noted that the record contains no proof that the
Respondent did not have adequate opportunity to negate
this type of propaganda with categonal denials possibly
even supported by a lawsuit or threatened lawsuit for libel
No such action was taken by the Company to dispel the
false impressions that may have been engendered by such
untrue statements Similarly the misrepresentations con-
tained in number (4) and (5) supra could have been
effectively countered
The alleged threats, coercion, and intimidation were
elicited from certain witnesses for the Company and
denied by the Union In evaluating this material, which is
obviously serious, reliance must be placed on my appraisal
of the credibility of the witnesses for both sides My
overview of this evidence convinces me that the Respon-
dent did not sustain its allegations and since neither side
preponderated in the weight of evidence presented I
overrule this objection under point (7) supra This is not to
say that there might not be some truth in the allegations
However it must be remembered that in the heat of an
election campaign certain words are spoken and certain
actions take place which, while not condoned, are typical
of such occasions and are not sufficient to upset the results
of a Board-conducted election Threats of physical harm
directed against employees for expression of opposition to
the Union and/or refusal to support the Union in its strike
are also serious and require careful evaluation Here again
evidence in support of this type of objection require
scrutiny and must be bottomed on clear and convincing
testimony On balance I conclude that I have more doubt
than conviction that such threats were made by representa-
tives of the Union Similarly threats of loss of jobs directed
against employees who opposed the Union as set forth in
point (8) above require proof of a nature that I find create
doubts in my mind
If in fact the Union engaged in massed assemblage and
blocking of ingress and egress from the factory I find it
strange that Respondent did not file charges of violation of
Section 8(b) of the Act If this action had been taken and if
the Company adduced convincing evidence of such
activities engaged in by Union representatives, an appro-
priate remedy would have been available to it Such was
not done by Respondent Points (11), (12), and (13) are
encompassed in the above conclusion The record does not
bear out the objection in point (14)
Respondent's objections, based upon the conduct of the
Board agent, represent the most serious matter raised by
the Company in its objections to the election There is a
line of adjudicated Board and court cases which deal with
this subject
Respondent has forcefully argued in its brief that the
ambience surrounding the events which occurred on the
very day the election took place manifested the continued
theme that the government preferred the Union and
further communicated this preference through the conduct
of the Board's agent In fact the Company claims that the
NLRB was in effect a not so silent partner and influenced
the workers in their choice of the Union The nub of this
objection is that the NLRB's field examiner , Robert
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Markey, by his behavior impaired the neutrality of the
Government's procedure This is a vital requirement of the
election process
Markey, who was not the Board agent in charge of the
election, by either happenstance or design, was present at
the union hall investigating the unfair labor practice charge
filed by the Union The hall is located at the other end of
the town of El Campo and is situated quite some distance
away from the Company's plant in which the election took
place The balloting was supervised by a second Board
agent
Markey was investigating these charges and was taking
affidavits from various employees pursuant to his investi-
gation The persons interviewed by Markey and those who
executed affidavits for him were eligible voters who
participated in the inquiry both before and after the polling
place was open The election took place between the hours
of 3 and 4 p in In his brief counsel for the Respondent
quoted the Austzll Waxed Paper Company case, reported in
169 NLRB 169 as follows
The Board through its entire history has gone to great
lengths to establish and maintain the highest standards
possible to avoid any taint of the balloting process, and
where a situation exists, which, from its very nature,
casts a doubt or cloud over the integrity of the ballot
box itself, the practice has been, without hesitation, to
set aside the election
Continuing, the brief asserts "However, it is not only the
integrity of the ballot box itself which is so jealously
guarded, but also any appearance of irregularity is likewise
vigorously avoided " This premise was articulated in
Athbro Precision Engineering Corp, 166 NLRB No 116,
where the Board held
The Board in conducting representation elections must
maintain and protect the integrity and neutrality of its
procedures The commission of an act by a Board agent
conducting an election which tends to destroy confi-
dence in the Board's election process, or which could
reasonably be interpreted as impugning the election
standards we seek to maintain, is a sufficient basis for
setting aside that election
The First Circuit (N L R B v Athbro Precision Engineering
Corp, 423 F 2d 573) had occasion to reaffirm the Board's
concern with any appearance of a partisan approach by a
Board agent, as follows
We cannot think the Board, any less than a court, is
uninterested in maintaining, as well as fairness, the
appearance of fairness The Board's public image
provides the basis for its existence The rerunning of an
occasional election is a small price to pay for the
preservation of public respect
The Fifth Circuit, in Delta Drilling Co v N L R B, 406
F 2d 109, held that Austill and Athbro "clearly articulate a
commendable, indeed the only tenable, Board policy "
There the court went on to uphold the Company's refusal
to bargain in order to test the sufficiency of objections over
the fact that the Board agent holding the election used the
union agent's motel room to freshen up In passing upon
such conduct, the court held that by closeting himself with
a union representative, the Board agent participated in a
questionable act which violated Board policy and im-
pugned upon the standards of integrity which must be
assured in Labor Board elections
Respondent's brief continues, "Board policy relating to
conduct of Board agents was expanded in Amax Aluminum
Extrusion Products, Inc, 172 NLRB 1401 to include very
similar to that involved here In Amax, the same Board
agent who conducted the election investigated unfair labor
practice charges between shifts of a split-shift election The
Board declined to overturn that election since only three
employees were interviewed and there was no evidence
that other employees saw the interviewing or became
aware of it "
In the instant case the evidence establishes that Markey
interviewed some employees and took affidavits from
them Also that the interviewing was open and obvious
The umon representatives publicized the fact that Markey
was in the umon hall for the express purpose of gathering
evidence concerning the Union's unfair labor practice
allegations It is contended by the Company that not only
was the Board agent present to accumulate evidence but
"they (the employees) were mformed by the Union that as
many statements as possible were needed prior to the
election so that the statements could be brought to
Respondent and that the statements were needed `to make
the election legal' "
The record shows that one of the approximately 115
employees did in fact give such testimony Mary Maldona-
do, who went out on strike with the other workers, returned
to work for the Company after the election on or about
November 9, 1970, and she was roundly criticized to
breaking the solid front of the employees most of whom
stayed out on strike until the strike was relinquished
officially by the Union on February 15, 1971 She testified
as follows
Q Was anybody from the Government there at the
strike hall that morning?
A Yes, sir
Q And who was that?
A A man named Markey
Q Did you see Markey that morning?
A Yes, sir
Q Were you told anything about why he was
there9
A Yes, sir He's taking statements from the girls
Q Were you told there was any particular reason
why he was taking statements that day?
A Well, they wanted to get all these statements
from the girls so they could-They wanted to take all
the statements before they would go to the election
Q Who told you this'?
A Well, they was told before, and then it was told,
you know, that day
Q Who-What was told before?
A At one of the meetings
Q Who said it at that meeting?
A Who was at that meeting? I think Miss Sarah
(Mrs Collins, Union representative) was at that
meeting
Q OK, this Friday morning was there a meeting at
the strike hall?
A Yes
ISAACSON -CARRICO MANUFACTURING 801
Q At that time did you also hear he needed the
statements for the election
A Some of the girls, because I wasn't there when it
started
Q Did you see Mr Markey there that day9
A Yes
Q Did you see him around noon time9
A Yes, sir
Q What was he doing around noon time9
A At noon time he was still taking statements
Q Where was he taking the statements9
A In a little room in the back close to the kitchen
Q Did he come out of that room at any time9
A I didn't see him
Q Did you see whether he at[e] there that day or
not9
A No, I didn't see him eat there, but I noticed that
some of the girls were trying to keep his food warm to
eat
Q Did somebody say that?
A Yes, sir
Q Who was that9
A I think it was Evelyn Jaksch and Mildred
Veselka
A Yes, I was there all day
Q Somebody there from the Government that
day'?
A Yes
Q Who was that9
A Mr Markey
Q Was he mtroduced9
A Yes
Q Sarah Calvert there9
A Yes
Q Did you learn of Mr Markey 's purpose for
being there that day9
A Yes
Q And how did you learn his purpose?
A Sarah introduced him as the man from the
National Labor Relations Board
Q And what did she say about him being there
A I don't know where he was then , but she was
telling us that-She told whoever was supposed to talk
to Mr Markey to stay there , because he wanted to get
as many statements as he could before the election so
he could take them to the Company , and she called out
all the names of who was supposed to stay, to be sure
and be there
Q Did you see Mr Markey there prior to the time
you voted in the election
A Yes, sir
Q
A
Q
Were you there around lunch time9
Yes
Did the employees generally fix some kind of
Q How many ladies were there9 hot meal for lunch during the strike9
A At the halh
Q Yes9 That morning Mr Markey was there
A Oh, golly, most all of them were
The Respondent's counsel then developed in direct
examination from employee Jean Morton the following,
A
Q
A
Q
A
Yes
Did they fix a meal that day?
Yes
Do you recall what it was?
Yes, I do I remember , I think it was, they call
most of which related to the general outline of the General them sloppy Joes
Counsel's case in chief Q Did you see Mr Markey around noon time?
Q Did Mr Lopez (Umon representative) at some
time during that meeting, either before or after the
strike vote was held, say that the strike was for such
and such a reason
A
Q
A
Q
Yes
What was he doing?
Well, it was at noon He came down-
Where had he been Had he been taking some
A You mean, well, yes It was for more money and statements?
that-So to make the Company recognize the union A Yes Well, during the morning he was taking
Q Did he request to tell the employees not to say statements, yes As I recall , I think it was just a couple
something about the reasons? of girls that morning And about 12 00 or a little after,
A Oh, yes around noon, he came out and ate lunch
Q
to say9
A
What did he say, tell the employees not to say or
Well, that was about if someone ask us why we
Q
A
Q
Oh, he ate lunch9
Yes
There at the union hall?
were on strike , it was for unfair labor practices and not
for money
A
Q
Yes
Were some union representatives there around
Q And Mr Lopez said this? lunch time9
A Yes A Yes
Q What time of day was that election Q Who would that be?
A 3 30 to 4 00 , I believe A Mr Richards, (Union attorney) and Sarah was
Q Did you do anything that morning? there Bob Brown (Another Union representative)
A Just hung around the union hall David Lopez I believe Lopez's boss was there that day
Q Around the what? Q Is there a pool table there at the hall9
A At the strike headquarters A Yes
Q OK You were at the strike headquarters9 Q Was the pool table being used around lunch
A (The witness nodded in the affirmative) time')
Q Were you there most of the day prior to the A Yes
stnke7 Q And who was using it9
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Well, the representatives, they were just hitting
around
Q Mr Richards take up a cue and hit a ball or
two?
A Yes
Q Mr Markey join them?
A Yes I mean they were all laughing and acting
silly, is what they were doing
Q What activity did Mr Markey have around
lunch time with the rest of the ladies around?
A Just laughed and talking, that is all
Mr Kneese We are getting into the effect of this
conduct on the voter
Trial Examiner We had precisely the same situation
arse with the previous witness
Q What did you think about Mr Markey being
there that day? The day of the election
A Well, it just seemed odd to me just the way it
happened It just seemed odd because I mean the
Labor Board was supposed to be neutral And there
they were, I mean coming in like they were I mean it
just didn't seem right to me at that time
The testimony of Maldonado and Morton has been
quoted supra in extenso because it bears a critical
relationship to Respondent's objections to conduct affect-
ing the results of the election The Company apparently
desires that I draw certain inferences that Markey's
conduct, his presence in El Campo on the very day of the
election even though the election itself was conducted by
another Board representative other than Markey, and the
seeming camaraderie with union representatives in the
presence of voters all add up to conduct so serious as to
warrant sustaining Respondent's objections and requiring
that the election be set aside as being incompatible with the
neutrality required by the NLRB's own decisions and
supporting court adjudications in such situations In this
connection it must be borne in mind that no criticism has
been directed against the Board agent who conducted the
election While it appears to be poor practice for the
Regional Office of the Board to permit the presence of an
examiner to conduct an investigation into certain alleged
unfair labor practices of the Company on the same day
that the election was in progress this fact, standing alone, is
not a sufficient basis for setting the election aside As to the
evidence in support of Respondent's other objections
having to do with the alleged friendship and alleged
horseplay with union agents, Sarah Calvert flatly denied
that Markey played pool with the union men, thus creating
a clear conflict in the testimony Add to this the Union's
witness Ardie Collins denied that she saw Markey playing
pool and in fact she testified to the fact that she personally
was closeted with Markey most of the morning of the
election during which time he confined himself to the
business of taking her statement in the form of an affidavit
Collins also said her interview with Markey took from
about 9 a in until noon to complete
Resolving questions of credibility is difficult especially
when certain aspects of the testimony of a witness have
been credited and some have not been so evaluated At the
very least there appears to be some credence in the
substance of Respondent's objects on the point under
scrutiny However, on balance, I am persuaded that there
is insufficient solid evidence upon which it might be said
that Respondent 's evidence preponderates in its favor I
reach this conclusion by taking certain other factors into
consideration The results of the election demonstrate that
the overwhelming majority of the Company's employees
voted in favor of the Union A vote of 73 in favor of the
Union against only 14 employees who voted against
representation by the Union speaks for itself
It should also be noted that the Board has held, with
court approval, that one of the yardsticks for measuring
the impact of whatever practices were employed by the
Union is to be found in the results of the election By
extension the same overview as to the conduct of Board
employees can reasonably also be tied in by reference to
the extent of the union victory On this basis the election
results make it abundantly clear that the impact of the
behavior of the Union's representatives and the Board's
agent did not interfere with the holding of a fair election
Under well established precedent, the test to be applied to
determine whether an election should be set aside on the
basis of conduct attributable to both the Union and the
Board's agent is whether the character of the conduct was
so aggravated as to create a general atmosphere of fear and
reprisal rendering a free expression of choice of representa-
tives impossible It might be added that the conduct of
Markey was not such as to have destroyed the employees'
freedom of choice
The Company alleged in one of its objections that the
Union deceived the employees by representing to them
that the said Union was endorsed and favored by the U S
Government and the National Labor Relations Board, and
further that an affirmative vote for the Union in the
election was the voting choice endorsed by the Govern-
ment and the Board A consistent refrain appears in
Respondent's objections that the acts and conduct of the
Union and the Board's agent so affected the laboratory
conditions under which the employees voted as to destroy
their freedom of choice in the election
The Company also contended that the election should be
set aside because of union misrepresentations concerning
Respondent's profits The Union admittedly had no special
knowledge of the subject matter and plainly was talking
through its hat In any event the record is not clear as to
whether or not the Company sought to rebut this assertion
At no time during the pendency of the representation case
did the Company claim it was not making profits or even
that it was not making substantial profits In these
circumstances the Respondent cannot be heard to com-
plain that its profits were either overstated or understated
Specifically, in the exercise of its discretion, the Board is
reluctant to set aside elections because of allegedly
untruthful statements by the parties during an election
campaign See Linn v United Plant Guards, 383 U S 53,
60-61 (1966), Anchor Manufacturing Company v N L R B,
300 F 2d 301, 303 (C A 5, 1962) Thus, recognizing that
"absolute precision of Statement and complete honesty are
not always attainable in an election campaign ," Hollywood
Ceramics Company, Inc, 140 NLRB 221, 223 (1962), the
Board does not undertake to "police or censor propaganda
used in elections it conducts, but rather leaves to the good
ISAACSON-CARRICO MANUFACTURING 803
sense of the voters the appraisal of such matters, and to
opposing parties the task of correcting inaccurate and
untruthful statements " Linn v United Plant Guard Work-
ers, supra, 383 U S 53, 60, quoting Stewart Warner Corp,
102 NLRB 1153, 1158 (1953) "The ultimate consideration
is whether the challenged propaganda has lowered the
standards of campaigning to the point where it may be said
that the uninhibited desires of the employees cannot be
determined in an election " The Gummed Products Co, 112
NLRB 1092, 1094 (1955)
Indeed, even when a misrepresentation constitutes a
substantial inaccuracy rather than a "minor distortion,"
the Board may properly conclude that the surrounding
circumstances preclude an impact upon the employees'
votes significant enough to warrant setting aside the
election Anchor Manufacturing Company v N L R B,
supra, 302-304, N L R B v Allen Manufacturing Company,
supra, 816, Olson Rug Co v NLRB , 260 F 2d 255 (C A
7, 1958), Hollywood Ceramics Company, Inc, 140 NLRB
221, 224
Moreover, the burden is not on the Board to establish the
validity of the election, rather, the objecting party has the
burden of proving by specific evidence that the election
was unfair N L R B v Mattison Machine Works, 365 U S
123, 124 (1951), Anchor Manufacturing Company v
NLRB, supra, 933, 942 This burden is a heavy one,
Shoreline Enterprises v N L R B, 262 F 2d 933, 942 (C A
4, 1959), for "the results of a secret ballot conducted under
government sponsorship with all the safeguards which have
been developed throughout the years, should not be lightly
set aside " Liberal Market Inc, 108 NLRB 1481 As has
already been shown supra the Company has failed to meet
its "heavy" burden in this case
For all of the reasons explicated above I find and
conclude that the Objections to the Election and Conduct
Affecting the Election are insufficient to warrant setting
the results of the election aside and ordering a new election
to take place
Concluding Findings and Analysis
I have previously found that the interrogation committed
by Supervisor Sauers was violative of the Act However, in
view of the fact that it constitutes a single isolated event it
does not rise to the level of warranting the imposition of a
requirement to post the usual remedial notice
Without burdening the decision with a reiteration of the
findings with respect to the alleged unfair labor practices
which have been detailed supra, I hereby recommend that
the unfair labor practices be dismissed in their entirety
Similarly sufficient explication appears above with
respect to Respondent's Objections to the Election I find
and recommend that Respondent's objections be overruled
and that the Regional Director certify the results of the
election won by the Union
CONCLUSIONS OF LAW
1 The Respondent, Isaacson-Carrico Manufacturing
Company, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Texas District Council, International Ladies Gar-
ment Workers Union, AFL-CIO, is a labor organization
within the meamng of Section 2(5) of the Act
3 The Respondent has not engaged in any unfair labor
practices as alleged in the complaint within the meamng of
Section 8(a)(1) and 8(a)(3) of the Act
[Recommended Order omitted from publication ]