Patsy Bee, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1980

249 N.L.R.B. 976 (N.L.R.B. 1980)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patsy Bee, Inc. and Northwestern District Council
of the International Ladies' Garment Workers'
Union, affiliated with International Ladies' Gar-
ment Workers' Union, AFL-CIO. Cases 17-
CA-8835, 17-CA-8884, and 17-RC-8710
June 2, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 18, 1979, Administrative Law
Judge James T. Barker issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel and the Charging Party filed exceptions
and briefs, and Respondent filed cross-exceptions to
the Administrative Law Judge's Decision.
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, cross-ex-
ceptions, and briefs, and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
We agree with the violations of the Act found
by the Administrative Law Judge and with his dis-
missal of an allegation concerning denial of a
scheduled wage increase. We do not agree with his
findings that certain conduct identical to that
which he found to be unlawful, namely, threats of
plant closure and job loss, is rendered lawful and
protected by Section 8(c) of the Act by virtue of
Respondent's president's predictions based on his
subjective belief that unionization of Respondent
would cause it to suffer severe economic hardships
leading to the threatened results. Further, we do
not agree with his conclusion that the gravity of
Respondent's conduct does not warrant a bargain-
ing order.
The Administrative Law Judge found that, start-
ing on January 2, 1979, when Supervisor Emmer-
ich told employee Flood that Bachofer, Respond-
ent's president, "would shut the doors" before he
would accept a union, and continuing throughout
the period prior to the election, Respondent,
through its supervisors and Bachofer, committed a
series of 8(a)(1) violations consisting of Emmerich's
' Respondent has exc pted to certain credibility findings made by the
Administrative LIaw Judge. It is the Board's established policy nlt tIo
overrule an administrative law judge's resolutions with respect Ili credi-
bility unless the clear preponderance of all of the relevat eidence cn-
vinces us that the resolutions are ilcorrecl Standard Dry Wall Producs,
In(, 91 NRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findinlgs.
249 NLRB No. 125
threat of plant closure to Flood; interrogating em-
ployees concerning their union activities and sym-
pathies as well as those of their fellow employees;
threatening employees with a loss of future benefits
because of their union activities; creating the im-
pression of surveillance of employees' union activi-
ties and engaging in actual surveillance thereof;
promulgating and enforcing an impermissibly broad
no-distribution rule which prohibited the dissemina-
tion of union literature at Respondent's plant
during nonworktime in nonwork areas; soliciting
employee grievances and indicating a willingness to
rectify them; threatening employees with termina-
tion because of their union activities; and emphasiz-
ing to an employee that Bachofer would indeed
"close the plant down" because of the "union
thing" and, moreover, that Bachofer could justify
the closure on pretextual grounds.
The Administrative Law Judge also found that,
during the preelection period, Supervisor Emmer-
ich told Smith that Smith "was going to lose her
job if she voted for the Union," but failed to deter-
mine the legal consequences of that statement. We
find the statement to be a clear violation of Section
8(a)(1) of the Act.
Despite his findings that Respondent's threats of
plant closure and loss of jobs constituted an imper-
missible assault on the employees' job security and
tenure as well as on their election rights, the Ad-
ministrative Law Judge also found that identical
conduct was permissible for reasons without any
legal foundation. Thus, he found no illegality in the
following credited conduct establishing that, on
January 3, 1979, the day following Emmerich's un-
lawful declaration to Flood that Bachofer would
cease operations before he would accept a union,
Bachofer summoned Flood to his office where he
informed her that his customers were not unionized
and would "pull their contracts" from Respondent
if Respondent became unionized. A week later, Ba-
chofer called employee Burgess to his office
where, after admonishing her for passing out union
literature and then promulgating and enforcing an
invalid no-distribution rule, he cautioned her that
Respondent "could not survive as a unionized en-
terprise and would have to close the plant," and
that "if the employees did go union his principal
customers . . . would 'pull their contracts."' Ap-
proximately a week later, Emmerich reinforced Ba-
chofer's position by warning employee Smith that
"Bachofer [is] going to have to close the plant if
you guys get the union in." Several weeks later,
Supervisor Westover carried the theme to employ-
ee Miller when he told her that Bachofer would,
indeed, "close the plant down" as he had said he
would because "the company would be unable to
PATSY BEE, INC. 977
get contracts because of the union." Westover also
inferred that Bachofer could find pretextual reasons
for closing. Westover was followed by Supervisor
Johnson who, about this same time, informed em-
ployee Cook that "if the Union came in, Bachofer
would have to lock the doors because [Respond-
ent's two principal customers] would 'pull their
work out' because . . . they did not use materials
or products made in union plants." A week later,
Bachofer carried the message to employee Smith
first by claiming that several companies had to file
in bankruptcy because of efforts to unionize them,
and then stating that one of Respondent's principal
customers "would 'definitely pull out' if the Union
came in." Finally, on March 1, 1979, Bachofer
again raised his economic specter by telling em-
ployee Stotts that a principal customer's contract
"could be lost . . . he knew that [the customer]
had not worked with a unionized firm for a
number of years." The election was held a few
weeks later and resulted in a union defeat.
The Administrative Law Judge found that Ba-
chofer's statements were permissible under the au-
thority of N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969), because, in his view, those state-
ments merely "postulated . . . economic conse-
quences reasonably foreseeable as a result of pre-
dictable responses by key customers." He found
that Bachofer was in a position to so postulate "by
reason of his experience in the industry, and his in-
sight into the business preferences and practices of
his principal customers," and concluded that the
statements are protected by Section 8(c) of the
Act.
He accorded similar protection to the statements
made by Supervisors Emmerich, Westover, and
Johnson because he viewed their statements as
nothing more than a reflection and iteration of Ba-
chofer's fears and of the "likely . . . economically
motivated . . . action to be taken by Bachofer in
the face of loss of contracts."
We fail to perceive the basis on which the Ad-
ministrative Law Judge found these statements to
be lawful when he found identical plant closure
and job loss statements to be unlawful. His ration-
ale of protection is fully applicable to the state-
ments he found to be unprotected, yet he failed to
apply it, and vice versa. More importantly, his ra-
tionale does not reflect either the thrust or the
holding of Gissel. Contrary to the Administrative
Law Judge, Gissel does not sanction predictions re-
garding the consequences of unionization which
are based solely on subjective considerations.
Under this test, a determination of legality or ille-
gality would be virtually impossible. To come
within the aegis of Gissel, such predictions must be
based on objective facts from which the employer
can convey a reasonable belief as to demonstrably
probable consequences of unionization. Here, Ba-
chofer had no indication from the Union that it
would make demands that would cause economic
hardship, let alone plant closure. Neither did Re-
spondent adduce any probative evidence that his
customers would, in fact or even might, "pull their
contracts." It is clear, therefore, that Bachofer's
statements to Flood, Burgess, Smith, and Stotts are
not "reasonable prediction[s] based on available
facts but a threat of retaliation based on misrepre-
sentation and coercion, and as such without the
protection of the First Amendment." 2 Moreover,
Bachofer's expertise and sincerity, on which the
Administrative Law Judge placed great store, are
meaningless factors because "[c]onveyance of the
employer's belief, even though sincere, that union-
ization will or may result in the closing of the plant
is not a statement of fact unless, which is most im-
probable, the eventuality of closing is capable of
proof." 3
It follows that the statements made by Supervi-
sors Emmerich, Westover, and Johnson to Smith,
Miller, and Cook, respectively, stand on the same
footing.
Accordingly, we find that the nature and effect
of those statements are implicitly to equate eco-
nomic adversity with a union election victory, and
that each of those seven statements violates Section
8(a)(l) of the Act. We also find that Respondent's
unfair labor practices unduly interfered with the
election held on March 27, 1979. We further find
Respondent's unfair labor practices are so outra-
geous and pervasive as to negate the possibility of
a free and fair rerun election. Here, Respondent
embarked on a course of unlawful conduct de-
signed to convince its employees that union repre-
sentation would in no way be advantageous to
them; that such representation would, in fact,
threaten their livelihood; and that "the source of
benefits now conferred is also the source from
which future benefits must flow and which may
dry up if it is not obliged." N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405 (1944). Inasmuch as Re-
spondent not only attempted to thwart the repre-
sentation desire of its employees but, in the proc-
ess, intentionally sought to abort a free election,
the odds for a free choice in a rerun election are
minimal. Indeed, Respondent's direct threats to
close operations is the hallmark of the type of case
in which bargaining orders issue. It is clear, there-
fore, that our traditional remedies cannot eradicate
the impact or lingering effects of Respondent's
2 . L R B. v. Gixel Packing Co.. Inc., supra at 618
:' Id. at 618-619
PATSY BEE, INC.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, and we shall require Respondent to bargain
with the Union.
CONCLUSIONS OF LAW
1. Patsy Bee, Inc., is an employer within the
meaning of Section 2(6) and (7) of the Act.
2. Northwestern District Council of the Interna-
tional Ladies' Garment Workers' Union, affiliated
with International Ladies' Garment Workers'
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act
by coercively interrogating its employees concern-
ing their union activities and sympathies; by threat-
ening employees with a loss of future benefits be-
cause of their union activities; by creating the im-
pression of surveillance of employees' union activi-
ties and by engaging in surveillance of such activi-
ties; by promulgating and enforcing an impermissi-
bly broad no-distribution rule; by soliciting em-
ployee grievances and indicating a willingness to
rectify them; by threatening employees with termi-
nation because of their union activities; by threat-
ening to shut down operations before accepting a
union; and by threatening employees with plant
closure and with job loss in the event of a union
election victory.
4. The following-described unit is appropriate for
purposes of collective bargaining:
All full-time and regular part-time shipping,
production and maintenance department em-
ployees employed by Respondent at its Blue
Springs, Missouri, facility, excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
5. At all times material herein since February 21,
1979, the Union has been the exclusive bargaining
representative of the employees in the above-de-
scribed unit within the meaning of Section 9(a) of
the Act.
6. Respondent's unfair labor practice conduct in-
terfered with the holding of a free and fair election
which was conducted on March 27, 1979, in Case
17-RC-8710. 4
4 Member Penello, in agreeing that the 8(a)(l) violations found herein
require settling aside the election, relies on the fact that Petitioner's Ob-
jection 2 specifically alleged that Respondent threatened plant closure
and economic reprisals to discourage employees' union activities Thus,
Member Penello adopts the Administrative Law Judge's recommendation
that Objection 2 be sustained on the basis of the conduct specified by him
in sec. IV.A, of his Decision and, in addition, on the basic of the threats
of plant closure found herein which occurred during the critical period.
See Member Penello's dissenting opinion in Dayton Tire & Rubber Co..
234 NLRB 504 (1978), wherein he stated that he would not set an elec-
tion aside on the basis of conduct not specifically alleged in a written,
timely filed objection.
7. The unfair labor practices found herein affect
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in cer-
tain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies
of the Act. In view of the serious and egregious
nature of the violations found herein, we shall issue
a broad order to remedy the effects thereof.5
Upon the foregoing findings of fact, conclusions
of law, and the entire record in this proceeding,
the Board hereby issues the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Patsy Bee, Inc., Blue Springs, Missouri, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees con-
cerning their union activities and sympathies.
(b) Threatening employees with loss of benefits
because of their union activities.
(c) Creating the impression of surveillance of
employees' union activities.
(d) Surveilling the union activities of the employ-
ees.
(e) Promulgating and enforcing an invalid no-dis-
tribution rule.
(f) Soliciting employee grievances and indicating
a willingness to rectify them in order to undermine
the Union.
(g) Threatening employees with termination be-
cause of their union activities.
(h) Threatening to cease operations before ac-
cepting union representation on behalf of its em-
ployees.
(i) Threatening employees with plant closure
and/or loss of jobs in order to discourage their
support for the Union.
(j) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with
Northwestern District Council of the International
Ladies' Garment Workers' Union, affiliated with
International Ladies' Garment Workers Union,
AFL-CIO, as the exclusive bargaining representa-
tive in the below-described unit with respect to
s Cf. t'ickmott Foods, Inc., 242 NLRB No 177 (1979).
PATSY BEE, INC. 979
rates of pay, wages, hours of employment, and
other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed contract:
All full-time and regular part-time shipping,
production and maintenance department em-
ployees employed by Patsy Bee, Inc., at its
Blue Springs, Missouri, facility, excluding
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
(b) Post at its place of business in Blue Springs,
Missouri, copies of the attached notice marked
"Appendix." 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17,
after being duly signed by an authorized repre-
sentative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 17,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges vio-
lations not found herein.
IT IS FURTHER ORDERED that the election held
on March 27, 1979, in Case 17-RC-8710 be, and it
hereby is, set aside; that the petition therein be, and
it hereby is, dismissed; and that the proceedings
therein be, and they hereby are, vacated.
I 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 Pursu-
ant 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 coercively interrogate our
employees concerning their union activities
and sympathies.
WE WILL NOT threaten our employees with
a loss of future benefits because of their union
activities.
WE WILL NOT create the impression that we
are engaged in the surveillance of our employ-
ees' union activities, and WE WILL NOT, in
fact, engage in such surveillance.
WE WILL NOT issue and enforce invalid
rules prohibiting the distribution of union lit-
erature.
WE WILL NOT solicit employee grievances
and seek to rectify them for the purpose of in-
ducing our employees to abandon their sup-
port for the Union.
WE WILL NOT threaten our employees with
termination because of their union activities.
WE WILL NOT threaten to shut down our
plant before accepting a union.
WE WILL NOT threaten our employees with
plant closure or with loss of jobs in order to
undermine their support for the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their righ:s guaranteed by Section
7 of the Act.
WE WIIL, upon request, bargain with
Northwestern District Council of the Interna-
tional Ladies' Garment Workers' Union, affili-
ated with International Ladies' Garment
Workers' Union, AFL-CIO, as the exclusive
bargaining representative of all employees in
the appropriate unit with respect to rates of
pay, wages, hours of employment, and other
terms and conditions of employment and, if an
understanding is reached, embody such under-
standing in a signed agreement. The appropri-
ate unit is:
All full-time and regular part-time shipping,
production and maintenance department em-
ployees employed by Patsy Bee, Inc., at its
Blue Springs, Missouri, facility, excluding
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
PATSY BEE, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This
case was heard before me at Kansas City, Kansas, on
July 24 and 25, 1979,1 pursuant to a consolidation order
issued on July 19 by the Regional Director of the Na-
tional Labor Relations Board for Region 17, wherein the
captioned unfair labor practice cases were consolidated
for the purpose of hearing with timely filed objections to
conduct allegedly affecting the results of the secret-ballot
' Unless otherwise specified, all dates referred to the calendar year
1979
PATSY BEE INC.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election conducted in Case 17-RC-8710 on March 27.
The consolidated complaint and notice of hearing is
based upon a charge filed on March 13 in Case 17-CA-
8835, and a separate charge filed on April 6 in Case 17-
CA-8884. The consolidated complaint alleges violations
of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, as amended, hereinafter called the Act, arising
from certain alleged acts of interrogation, unlawful so-
licitation of employee grievances, impermissible threats,
coercive withholding of scheduled wage increases, and
implementation of an overly broad no-solicitation and
no-distribution rule on the part of the management and
supervision of the Respondent or Company, Patsy Bee,
Inc. Objection 2 alleges threats of economic reprisal for
the purpose of discouraging union activity, while Objec-
tion 5 avers company responsibility for the defacement
of an NLRB Notice of Election, with the result that em-
ployees were coerced in the exercise of their Section 7
rights. At the hearing, the parties were provided full op-
portunity to make opening statements, to examine and
cross-examine witnesses, to introduce relevant evidence,
and to file briefs with me. Counsel timely filed briefs.
Upon the basis of the entire record,2 my observation
of the witnesses, and the briefs of the parties, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At all times material herein, the Company has been a
corporation organized under the laws of the State of
Missouri, and has been engaged in the manufacture of
garments at a facility located in Blue Springs, Missouri.
During the course and conduct of its business oper-
ations within the State of Missouri, the Company annual-
ly purchases goods and services valued in excess of
$50,000 directly from sources located outside the State of
Missouri.
The Company admits, and I find upon the basis of the
foregoing, that at all times material herein Patsy Bee,
Inc., has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Company concedes, and I find, that at all times
material herein the Union, Northwestern District Coun-
cil of the International Ladies' Garment Workers' Union,
affiliated with International Ladies' Garment Workers'
Union, AFL-CIO, has been a labor organization within
the meaning of Section 2(5) of the Act.
Iii. THE ALLEGED UNLAWFUL CONDUCT
A. Pertinent Facts
1. Background
Respondent is an enterprise engaged in business as a
garment manufacturer. As a manufacturer, Respondent
maintains its own sales force; purchases piece goods,
2 The transcript of this proceeding is hereby corrected in accordance
with the unopposed motion of counsel for the General Counsel.
trim, and sundry items to be incorporated into finished
garments; sews garments and ships the finished items to
customers. At pertinent times, Respondent's principal
customers were Jantzen, Inc., and Artex Manufacturing
Company and they, like other customers of Respondent,
were nonunion enterprises.
Donald Bachofer is president of Respondent and Ba-
chofer has been associated with the garment industry for
25 years. At relevant times, Herb Westover has been Re-
spondent's vice president of manufacturing, while Imo-
gene Johnson and Michaelene Emmerich have been serv-
ice operators. Also at relevant times, Mary Cartee has
served in the capacity of inspector and Larry Wolf has
served as cutting room supervisor. The supervisory
status of each of the aforesaid individuals is conceded by
Respondent.
On February 23, the Union filed a representation peti-
tion seeking to represent a unit of the Company's em-
ployees employed at the Company's Blue Springs, Mis-
souri, facility. Pursuant to a Stipulation for Certification
Upon Consent Election approved by the Regional Direc-
tor on March 13, a secret-ballot election was conducted
on March 27 under the direction and supervision of the
Regional Director in the following described appropriate
bargaining unit:
All full-time and regular part-time shipping, produc-
tion and maintenance department employees em-
ployed by the Respondent at its Blue Spring, Mis-
souri, facility, excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
The tally of ballots revealed that there were approxi-
mately 85 eligible voters and that 74 ballots were cast in
the election, of which 33 were for the Union, 38 were
against the Union, 2 ballots were challenged, and I was
void. The challenged ballots were not sufficient in
number to affect the results of the election.
In the meantime, on February 23, the Union demanded
that Respondent recognize it as the exclusive bargaining
representative of the employees in the above-described
appropriate bargaining unit. At all times since February
23, Respondent has refused to recognize the Union. Sub-
sequently, on April 2, the Union filed timely objections
to the conduct affecting the results of the March 27 elec-
tion. The Regional Director caused an investigation of
the objections to be made, and, thereafter, on May 7,
issued his Report on Objections to Election and Recom-
mendations. In his report, the Regional Director recom-
mended that Objections 1, 3, and 4 be overruled in their
entirety and that Objections 2 and 5 be consolidated with
Case 17-CA-8835 for hearing and decision before an ad-
ministrative law judge. No exceptions were filed to the
Regional Director's report and, by direction of the
Board on June 6, Objections 2 and 5 were consolidated
for hearing in the manner recommended by the Regional
Director. The objections raised the issue of whether the
Company:
2. Threatened employees with economic and
other reprisals to discourage their union activities;
the most significant being the threat of plant closure
PATSY BEE, INC. 981XI
in the event employees supported the union and/or
organized the plant.
5. Defaced the NLRB Notice of Election thereby
unlawfully influencing and coercing employees in
the exercise of their Section 7 rights.
2. The alleged proscribed conduct
a. The alleged threats and interrogation and
surveillance
On Saturday, December 30, 1978, Donald Bachofer re-
ceived an anonymous telephone call informing him that
efforts were being made to organize his plant. Thereaf-
ter, on Tuesday, January 2, Michaelene Emmerich and
Imogene Johnson approached Donna Flood at her work
station in the plant. Emmerich initiated the conversation
with Flood, observing that she surmised that Flood had
been the person who had contacted Bachofer. Flood re-
sponded, "Yes, I guess I am, what did I say?" Emmerich
responded that Flood had told Bachofer that a union was
going to "come in" the plant. Flood responded, in effect,
that she was in favor of this, and Emmerich answered
that Bachofer had said he would "shut the doors first."
Flood responded, "Oh, baloney." And Emmerich stated,
"Oh, no, he'll shut the doors first." Johnson made no
comment during the course of this exchange.3
The following morning Bachofer requested Flood to
meet with him in his office. Flood went to Bachofer's
office, and Bachofer commenced their conversation by
stating that he had heard a rumor that a union was
"trying to get in here." Flood responded that this was
not merely a rumor but was true. Thereupon, Bachofer
stated that his customers were not unionized, and they
had stated that if the employees organized they would
pull their contracts. Bachofer observed that the Compa-
ny would then have no work. Bachofer added that he
personally had nothing against the union. Flood asked
Bachofer why he had elected to speak with her. Ba-
chofer answered that he considered Flood to be intelli-
gent, friendly with all the female employees, and he
wanted her to relay the message to them. Flood noted
that some of the other female employees had considered
coming in and talking with Bachofer. Bachofer invited
Flood to inform them to come in and see him, and he
would show them his financial statement. As the conver-
sation progressed, Bachofer declared, in substance, that
the Company was working on a narrow financial margin
and he also made reference to the loss of jobs experi-
enced by employees resulting from a successful union or-
ganizing effort in an operation in which his father had
had a management role. The conversation lasted approxi-
mately 30 minutes. At the 9:30 a.m. break, Flood related
her version of this conversation to a group of approxi-
mately eight employees. 4
:s The foregoing is based on the credited testimony rf Dolnna Flood.
which is not disputed Neither Emmerich nor Johnson was interrogted
concernig this incident.
I The foregoing is based on a comnlposite of the credited testinlllly of
Donna Flood and Donald achofetr I place prilncipal relihace on Ihe tes-
timony of Flood, and credit llachofer only to the extent that his testlilmo-
ny is consistent with the foregoing filndi igs Specifically, I credit Flood',l
testimony to the effect that Bachofer stlated affirmnatistcly that. if the em-
ployees organized, his custoners had infolrmed hil lhe sWould "pull1
On Friday morning, January 5, Mary Cartee, a super-
visor, spoke with Pat Laswell, a machine operator. The
conversation took place at Laswell's machine prior to
the morning break. Cartee asked Laswell what she
thought about the Union. Laswell asked the meaning of
Cartee's inquiry, and Cartee merely repeated the sub-
stance of her initial question. Laswell was noncommittal
and thereupon Cartee asked where the union meeting
was going to be held. Laswell informed Cartee that the
meeting would be held at the Country Squire Inn. Las-
well added that she did not think the meeting was very
well organized. On the morning of January 8, a group of
employees asked Laswell about her conversation with
Cartee. s5
On January 8, a group of employees met with repre-
sentatives of the Union at the Country Squire Inn. The
meeting transpired soon after 4 p.m., and many of the
employees who attended the meeting went directly from
the plant to the situs of the meeting. Pam Burgess was
one of the employees who drove from the plant to the
Country Squire Inn immediately after 4 p.m. when her
workday finished. As she was leaving the plant parking
lot, she observed Emmerich and Johnson entering Em-
merich's vehicle. She noted also that Emmerich drove in
the direction of the Country Squire Inn. When Burgess
arrived at the Country Squire Inn, she noticed that Em-
merich's vehicle was parked in the parking lot. Burgess
entered the lobby of the Country Squire Inn accompa-
nied by other employes. Burgess observed Emmerich
and Johnson sitting in the restaurant area. Likewise,
Debbie Stotts and Pat Laswell, who accompanied Bur-
gess, also observed Emmerich and Johnson. Similarly, as
Donna Flood, Carol Kilpatrich, and Candy Hinsacker
arrived at the Country Squire Inn and sought directions
to the room where the union meeting was to be held,
Flood observed Emmerich and Johnson looking at her.
Prior to the commencement of the meeting, Emmerich
and Johnson sat in the coffeeshop and observed the em-
ployees arrive and go to the room where the meeting
was held. As the employees would arrive, Emmerich and
Johnson would converse with each other and make writ-
ten notations"
The following morning Imogene Johnson approached
Donna Flood and asked if "very many" had attended the
union meeting "last night." Flood responded, "You
ought to know, you were there." Johnson responded
their conrract Accordingly, I reject the Icstimnon> of tlachofer suggestig
that ciontract termination was held olit merel as porsihle collrsequence of
a successful rganlrig effort on the part of empl rses ()1i the llther
hand. I reject Flood's teslmrnony to the efflTect that i3achofer stated. i
terris, that he would have to "shut the dorrrs" If hl stLlller c;lll.elcd
their conIitracts lCeaing he plant wilhoul aork \ st.ltemiit giser h
l:hrr.d 2 eeks after the cons ersi tion in questl lln cOir/talied n ri, s-ih rcft r-
elce. and I am c.tllso n icd thal tlhis attributlin cL sIoled fri 1O Fllodl s later
subjective inlterpretatllin of achofer's meaning
5 -the fregonig is based on the credited testtrrimon f P'atl I.asell
l.aswell's account of this criseriatnoll rith Cartce i, inll disputed In
finding that Cartec illqilired cillcernilng a rumored lil lion t iCIiii g alnd its
situs I h. carefull' esaluated l.asv ell's testl i)nri Ill Its total CrirtI
i he foregoinrg firlditigs ar hbased ron the credited etifnnn!r of )Dr'I;Ia
Florrd. l'anm Burgess. ebbhie S its. at I as, ell, and Jack ZInser I l
testilrn1nt is not disputed It ias onceded o1 the ec, rid tha li E llnitr.iclh
if Juohnlsol aver prestlet at the Cultr! Squilel I 11i hill thei1 lIIet llr
ia, held
PATSY BEE, INC.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, although she had asked to attend, her request was
not honored. 7
During the course of the workday on Tuesday, Janu-
ary 9, Jeany Smith, a machine operator, was standing at
her machine with a piece of white paper in her hand.
Emmerich approached Smith and inquired about the
piece of paper and the nature of her conversation with
Debbie Stotts, a seamstress in the plant. Smith was non-
committal concerning the piece of paper but stated that
she had been asked by Stotts about the union meeting.
Thereupon, Emmerich asked Smith what the union meet-
ing was about. Smith responded, "Didn't you go?" Em-
merich responded in the affirmative but added that "they
w-uldn't let us in." Emmerich then inquired again about
the piece of paper which Smith was holding, and Smith
was again noncommittal. 8
At approximately this point in time, Emmerich again
spoke with Jeany Smith and stated that Smith was going
to lose her job if she voted for the Union. Smith an-
swered that Emmerich could not fire her, and Emmerich
stated, "Don's going to have to close the plant if you
guys get the union in." Smith later repeated her version
of this conversation to her mother and to Debbie Stotts,
both of whom were employed at the plant at the time in
question. 9
At the union meeting on January 8, Burgess had ob-
tained some literature, and the following day she placed
a copy on each of the lunch tables. Soon after the morn-
ing break, Burgess was called to the office by Emmerich,
and when she arrived there, Bachofer and Herb Wes-
tover were present.' 0 Bachofer asked Burgess what she
was passing out, and Burgess answered that it was union
literature. Bachofer asked for a copy, and Burgess pre-
sented him with one. Bachofer responded that Burgess
needed his permission to pass out literature on his prop-
erty and in his building. Burgess answered that she had a
right to do this on her breaks and lunch hour, and before
and after work. Bachofer responded that she still needed
his permission because the literature was being passed
out on his property. Burgess asked for permission to dis-
tribute the literature, and Bachofer gave her no direct
answer. Burgess left the office.
A few minutes later, Westover approached Burgess at
her machine and advised her not to put her job in jeop-
ardy over the union literature. Westover added that Ba-
chofer had the right to request Burgess to get his permis-
sion before she passed out the literature, and Westover
noted that he had worked in union shops before. "
7 The foregoing is based on the credited and undisputed testimony of
Donna Flood.
s The foregoing is based on the credited and undisputed testimony of
Jeany Smith
0 The foregoing is based on the credited testimony of Jeany Smith
Smith testified, in substance, that she received the impression from the
remarks Emmerich made at the close of the conversation that Emmerich
desired Smith to repeat the admonition concerning plant closure to other
employees. I make no other specific finding to this effect, for Smith's tes-
timony in this regard was too imprecise to support a finding of a direc-
tive or request emanating from Emmerich.
0 Marvene Woolford. who worked in the cutting room and in the
office. was also present.
" The foregoing is based on the credited and undisputed testimony of
Pam Burgess.
A short time later, Bachofer called Burgess to his
office. Bachofer spoke first to Burgess concerning some
work-related problems Burgess was experiencing with
Emmerich, and in the course of this discussion Burgess
stated that she was encountering delays in receiving
binding. Bachofer asked what else was the matter, and
Burgess asserted that Emmerich's attitude towards some
of the employees was bad. Bachofer stated that he would
talk with Emmerich. Burgess then asked if Bachofer had
read the literature that she had given him. Bachofer re-
sponded that he had sent the literature to his attorney.
He added, "By the way, this is grounds for dismissal but
I'll overlook it as you were honest with me and gave me
a copy when I asked for it." As the conversation pro-
gressed, Burgess asked Bachofer why he could not grant
a raise to the employees. In substance, Bachofer attribut-
ed this to the financial condition of the operation and
asked Burgess if she wanted to see his financial state-
ment. Before Burgess could answer this inquiry, Ba-
chofer mentioned production costs stating, in substance,
that, due to the cost of producing principal products, the
operation could not survive as a unionized enterprise and
would have to close the plant. He added that if the em-
ployees did go union his principal customers, Jantzen
and Artex, would "pull their contracts."
Later in the day, Burgess repeated her version of her
earlier conversations with Bachofer and her conversation
with Westover to a group of employees.12
In mid-February, Betty Miller, a machine operator,
asked Herb Westover if Bachofer was "really going to
close the plant down." Westover answered in the affirm-
ative and added that he had been acquainted with Ba-
chofer for a number of years and Bachofer "means what
he says." Miller asked Westover the reason for closing
the plant down, and Westover answered that the Compa-
ny would be unable to get contracts because of the
Union. He said the "union thing" was the reason. In sub-
stance, Miller contested the legitimacy of any need for a
shutdown, and Westover stated, in effect, that a shut-
down could be justified due to vacations, no work, loss
of work, and the need to renovate the plant. 13
At approximately the same time, Betty Cook, a ma-
chine operator, conversed with Imogene Johnson con-
cerning a number of matters and, during the course of
the conversation, Johnson stated that, if the Union came
in, Bachofer would have to lock the doors because Artex
and Jantzen would "pull their work out" because, in
effect, they did not use materials or products made in
union plants.' 4
12 The foregoing is based on the credited testimony of Pam Burgess
which finds no direct refutation in the testimony of Bachofer. Herb Wes-
tover was not called to testify I have carefully considered Burgess' testi-
mony with respect to her separate meeting with Bachofer, and although
she was unable to testify concerning sonime f the salient elements of that
conversation without having her memory refreshed, I conclude, on bal-
ance, that she testified truthfully and accurately concerning the state-
ments made to her by Bachofer on that occasion
'' The credited testimony of Betty Miller supports the foregoing. Herb
Westover as not called to testify.
14 The credited testimon(y (of Betty Cook establishes the fioregoing. I
have carefully considered Cook's responses to questions posed to her
during the course of her cross-examination, and I have considered the
Continued
PATSY BEE. INC. 983
Approximately 1 week later, on or about February 21,
Bachofer spoke with Jeany Smith while she was in the
office on personal business. Bachofer asked Smith if she
knew "what" the female employees were "getting into"
by seeking to unionize. Smith answered that she did not.
Bachofer explained that two other companies had to file
bankruptcy because of efforts to unionize those plants,
and he stated that Artex would "definitely pull out" if
the Union came in. He added that he was meeting with
Jantzen the next day. 5
A few days later, on or about February 26, Johnson
approached Betty Miller as she was working and said,
"Betty, where's your union bag?" Miller answered that it
was at home, and Johnson said, "You're looking for a
permanent layoff, aren't you?"' 6
On the morning of March 1, Michaelene Emmerich in-
formed Bachofer that Debbie Stotts, a seamstress in the
plant, had made some damaging and disparaging remarks
concerning her. They discussed the nature of Stotts'
statements and thereupon Bachofer called Stotts to his
office. Emmerich was present throughout the conversa-
tion, which lasted approximately 50 minutes. Bachofer
chastised Stotts for the allegations she had made con-
cerning Emmerich, and Stotts conceded that she had
acted improperly. She said that she had tried to handle
the matter in a personal way and assured Bachofer that
there would be no repetition of her conduct. Thereupon,
Bachofer stated that the "egg throwing" between the
employees had to cease. He stated that production was
down and attributed this decline to the union activities in
progress at the plant. He asserted that if the shop were
closed down it would be the employees who had
brought it about and not himself. In this connection, he
expressed concern that the Jantzen contract would be
lost because Jantzen representatives had been in the plant
and had observed the physical evidence of union activity
in progress in the plant. He noted that he had arranged a
favorable contract with Jantzen to cover I full year, but
he knew that Jantzen had not worked with unionized
firms for a number of years. As the conversation pro-
gressed, Bachofer asserted that he was losing money and
could not afford to operate a union shop. He quoted fi-
nancial data to support this assertion. He added, howev-
er, that if the employees selected a union he would work
with them. As the conversation neared its completion,
Bachofer noted that he had observed the name of one of
the employees on the employee union committee list,
testimony of Johnson I find nothing therein to warrant rejection of
Cook's credible testimony supporting the above findings
5 The foregoing is based on the credited testimony of Jeany Smith.
Bachofer did not specifically deny the substance of this conversation, al-
though his testimony, in totality, may be reasonable viewed as a denial of
statements of the type attributed to him by Smith on this occasion In
other respects, I find Smith's testimony of record too fragmented to
credit an apparent attribution on her part to Bachofer of a specific threat
to close down following his conversation with Jantzen to which he had
alluded.
i6 The credited testimony of Betty Miller supports the foregoing find-
ing I have carefully considered Imogene Johnson's testimony wherein
she denied the comments attributed to her by Miller. Johnson's testimony
on cross-examination cast some doubt upon the accuracy of Johnson's
recollection concerning this incident as she testified before me at the
hearing. I find no basis for disbelieving Betty Miller, and I credit her tes-
timony concerning this conversation and reject Johnson's denial
which had been posted in the plant, and had called that
employee in and expressed his disappointment in her. He
stated that he had also told that employee that she
should never again ask him for "anything." Bachofer
again stated that he wanted the "egg throwing" stopped
and for the employees to work in harmony for the 3
weeks left before the representation election. He request-
ed Stotts to inform the other employees concerning their
conversation.
Subsequently, at the beginning of her lunch period,
Stotts recorded her recollections of the content of the
conversation in a small notebook. The notebook did not
purport to be a verbatim account of the conversation and
in some instances, consisted of mere notations or jog
words. In the week that followed, she showed the note-
book to approximately 13 employees. t 7
On Friday, March 2, Toni Hagebusch spoke with Em-
merich incident to picking up her paycheck. She asked
Emmerich when she was going to be called back to
work, and Emmerich said she did not know because Ba-
chofer had said he would have to shut the plant because
there was not any work. 8
Approximately I week later, Emmerich approached
Letha Burnett at her work station and said, "Letha, you
don't have to answer this, but are you for or against the
union?" Burnett answered that she did not know. 19
b. The alleged withholding of wage increases
As considered more fully below, in distributing and re-
ceiving job application forms as part of her office duties,
Marvene Woolford would answer general questions
posed by applicants concerning wage rates, wage policy,
and other work procedures and benefits. Woolford did
1" The foregoing is based on a careful consideration of the testimony
of Debbie Stotts. Donald Bachofer, and documentary evidence of record
Principal reliance is placed on the testimony of Debbie Stotts which has
been considered in light of the entries made in the notebook which she
prepared shortly after her conversation with Bachofer. A careful consid-
eration of her oral testimony, in light of the contents of the noteboxxk.
reveals that, for the most part. Stotts testified accurately concerning the
salient elements of her conversation with Bachofer. However. I reject the
testimony of Stotts to the effect that Bachofer stated during the course of
the conversation that the contract which he had consummated with Jant-
zen had been canceled Rather, I credit Bachofer's testimony to the effect
that he expressed concern over the possibility of this happening More-
over, contrary to Stotts' testimony on cross-examination, I find implausi
ble her statement that Bachofer averred he would cancel the Jantzen
contract rather than lose money. Similarly, I find insufficient support for
Bachofer's testimony to the effect that incidents of verbal abuse on the
part of employee advocates of the Union vis-a-vis other employees had
motivated him to speak with Stotts I find, contrary to the thrust and in-
ference of Bachofer's testimony, that such verbal abuse was not wide-
spread and had not reached a level justifying concern on the part of Ba-
chofer over the wisdom of continuing operations. I eject Bachofer's tes-
timony to the effect that he threatened to close the plant only if verbal
abuse on the pan of employees continued.
1' The credited testimony of Michaelene Emmerich establishes the
foregoing I have considered the testimony of Toni Hagebusch to the
effect that she was told by Emmerich that Bachofer was going to shut
the plant "if the Union tried to come in." I am convinced that Emmer-
ich's testimony is more reflective of the circumstances that existed at the
plant on March 2 and more accurately comports with the expressed atti-
tude of Bachofer. than is the testimony of Hagebusch I credit Emmerich
with full recognition that on January 2, in the earl phases of the orga-
nizing efforts, she had been less than circumspect in speaking with Smith.
as found above
19 The foregoing is based on the credited testimony of Letha Burnett
PATSY EE, INC q
984 DECISIONS OF NATIONAL LABOR REILATIONS BOARD
not have access to wage data or schedules for machine
operators, but was aware of the starting salary, which
was at minimum wage. Woolford told Burgess, Flood,
Laswell, Miller, and Stotts at the time they initially ap-
plied for work that they would receive a 10-cent-per-
hour wage increase at the end of 3 months' employment.
However, when Woolford imparted this information to
Donna Flood, Emmerich, who was present, answered, in
effect, that the 10-cent-per-hour wage increase was not
automatic but depended upon the quality and quantity of
work produced. This exchange transpired in August
1978.
Subsequently, in mid-February, Betty Miller overheard
another employee speaking with Herb Westover con-
cerning a raise. Consequently, Miller inquired of Wes-
tover into her own prospects for a 10-cent raise. Wes-
tover told Miller "nobody" was getting a raise, and
Miller protested, stating that she was promised an auto-
matic 10-cent raise at the end of 3 months of employ-
ment. 2 0 Nonetheless, Westover reiterated that nobody
was going to get a raise.2 '
B. Conclusions
I find that the General Counsel established by the pre-
ponderance of the credible evidence that, in the period
prior to the election, Respondent, through its president,
and by virtue of separate conduct of its supervisors, un-
lawfully interrogated employees concerning their union
activities; threatened employees with reprisals because of
their union activities; engaged in surveillance of employ-
ees' union activities, and separately gave employees the
impression that their union activities were under surveil-
lance; enforced an impermissibly broad no-distribution
rule in the plant; solicited employee grievances and im-
plied a willingness to rectify them; threatened employees
with termination as a consequence of their union activi-
ties; and threatened to close the plant if employees se-
lected a union to represent them. On the other hand, I
find insufficient evidence to support the allegation that
employees were denied a scheduled wage increase and
conclude that the threats of plant closure and termination
were not as widespread as the General Counsel con-
tends.
The interrogation of employees coincided closely with
the first stirrings of union activity. This is revealed by
Bachofer's interrogation of Donna Flood on January 3,
which was marked not only by Bachofer's impermissible
inquiry into the union activities of Flood and her fellow
employees, but also by Bachofer's invitation to Flood to
disseminate the substance of their conversation to other
employees. This instance of unlawful interrogation was
followed within 2 days by Cartee's inquiry to Laswell as
to Laswell's feelings regarding the Union, and this ques-
tion was accompanied by an inquiry as to the location of
a scheduled union meeting. Then, 4 days later, Johnson
interrogated Flood and Emmerich, and separately ques-
tioned Jeany Smith, as to events transpiring at the union
meeting which had been held the previous evening. Sub-
20 The credited testimony of Betty Miller reveals that, in October 1978
when she applied for work, Miller was told by Woolford that she would
receive a 10-cent raise at the end of 3 months of employment.
21 The foregoing is based on the credited testimony of Betty Miller
sequently, on March 8, approximately 2 weeks following
the filing of the representation petition, Emmerich asked
employee Burnett whether or not she favored the Union.
It must be concluded that this pattern of interrogation
violated Section 8(a)(l) of the Act. See Jim Baker Truck-
ing Company, 241 NLRB 121 (1979); Northern Indiana
Tool, Inc., 233 NLRB 917, 921 (1961); Production Plating
Company, 233 NLRB 116, 120 (1977).
The above conduct on the part of Bachofer, Cartee,
Emmerich, and Johnson, respectively, also served to
communicate to employees the impression that their
union activities were under surveillance by supervisors
and management. This impression resulted perforce from
the nature of Bachofer's questions of Flood and the in-
quiries into matters relating to the union meeting posed
by Cartee, Emmerich, and Johnson. This evidence must
be analyzed together with other proof of overt conduct
by Emmerich and Johnson resulting in their physical
presence at the situs of the January 8 meeting of employ-
ees with union representatives at the Country Squire Inn.
The presence of these supervisors, in circumstances re-
vealing purposeful scrutiny on their part of employee in-
gress and egress from the union meeting, establishes not
only thefact of unlawful surveillance, but supports also a
finding of an intention to convey to employees the im-
pression that their union activities were under scrutiny
and evaluation by and supervisors management. I find
Section 8(a)(1) of the Act was iolated by virtue of this
conduct on the part of supervisors. See Production
Stamping, Inc., 239 NLRB 1183 (1979); Jim Baker Truck-
ing Company, supra; Keystone Pretzel Bakery, Inc., 242
NLRB No. 77 (1979).
The record evidence further establishes that, in the im-
mediate aftermath of the January 8 meeting, Bachofer
orally promulgated an impermissibly broad prohibition
against the distribution of literature on plant premises
during nonworktime in nonwork areas. Moreover, in im-
plementing this rule, Bachofer inferred that employees
would place their jobs in jeopardy if they distributed lit-
erature in violation of his broad prohibition against pass-
ing out union literature on plant property. I find this
conduct violated Section 8(a)(l) of the Act as did the re-
lated advice given employee Burgess by Westover, a su-
pervisor, that Burgess not put her job in jeopardy over
the distribution of union literature. See Essex Internation-
al, Inc., 211 NLRB 749, 750 (1974); Paceco, a Division of
Freuhauf Corporation, 237 NLRB 399 (1978), and cases
cited therein at footnote 9.
Further evidence of Bachofer's attempt to unlawfully
impede the organizing efforts of employees is found in
Bachofer's veiled but nontheless implied threat emanat-
ing from his statement to Debbie Stotts, during the
course of their March I meeting in Bachofer's office,
that he had told another employee she should never
again ask him for anything. This comment uttered con-
textually with Bachofer's expression of disappointment in
employee membership in the union organizing committee
signaled a warning to Stotts that her involvement in the
organizing efforts could result in a future loss of benefits
to her and to other employees. See Jamaica Towing, Inc.,
236 NLRB 1700 (1978).
PATSY BEE, INC. 985
Akin to this, indeed, the other side of the coin, so to
speak, is Bachofer's initiative during the course of his
January 9 meeting with Burgess in soliciting Burgess'
complaints concerning working conditions and offering
to address himself to a resolution of the difficulties asser-
tedly encountered by employees arising from the attitude
of their supervisor, Emmerich. While, to be certain, Ba-
chofer's initiative was low-keyed, it was not benign, for
it transpired during the course of a meeting devoted to
Burgess' distribution of union literature in support of the
employees' organizing activities, and followed by I day
the meeting of employees with representatives of the
Union. Moreover, the initiative was advanced in the
course of a meeting in which he endeavored to dissuade
Burgess from supporting the Union. In the total context
of this incident I find that Bachofer's remarks constituted
a violation of Section 8(a)(l) of the Act. Eagle-Picher In-
dustries, Inc., Electronics Division, Precision Products De-
partment, 171 NLRB 293, 299 (1968); Lasco Industries,
Inc., 217 NLRB 527, 531 (1975); Landis Tool Company,
Division of Litton Industries, 190 NLRB 757, 758 (1971),
enfd. 460 F.2d 23 (3d Cir. 1972).
A singular threat of reprisal to be visited upon an em-
ployee for involvement in union activity is found in
Johnson's late-February admonition to Betty Miller that
she was "looking for a permanent layoff' by reason of
her involvement with the Union. As found, this comment
followed Johnson's reference to Miller's possession of
union paraphernalia, including a union bag.
The General Counsel contends that throughout the or-
ganizing campaign employees were additionally threat-
ened with plant closure and loss of employment resulting
from their efforts to obtain union representation. I view
the evidence of possible plant closure differently. The
initial question arises whether these additional references
were threats of economic reprisal to be taken solely at
the volition of Bachofer, or merely communications of
Bachofer's reasonable belief of the probable conse-
quences of unionization beyond his control. See N.L.R.B.
v. Gissel Packing Co., Inc., 395 U.S. 575, 618-619 (1969).
In addressing this issue, the Court in Gissel stated:
Thus, an employer is free to communicate to his
employees any of his general views about unionism
or any of his specific views about a particular
union, so long as the communications do not con-
tain a "threat of reprisal or force or promise of
benefit." He may even make a prediction as to the
precise effect he believes unionization will have on
his company. In such a case, however, the predic-
tion must be carefully phrased on the basis of objec-
tive fact to convey an employer's belief as to de-
monstrably probable consequences beyond his con-
trol or to convey a management decision already
arrived at to close the plant in case of unioniza-
tion.... If there is any implication that an em-
ployer may or may not take action solely on his
own initiative for reasons unrelated to economic ne-
cessities and known only to him, the statement is no
longer a reasonable prediction based on available
facts but a threat of retaliation based on misrepre-
sentation and coercion, and as such without the pro-
tection of the First Amendment. We therefore agree
with the court below that "[c]onveyance of the em-
ployer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is
not a statement of fact unless, which is most im-
probable, the eventuality of closing is capable of
proof." . . . As stated elsewhere, an employer is
free only to tell "what he reasonably believes will
be the likely economic consequences of unionization
that are outside his control," and "threats of eco-
nomic reprisal to be taken solely on his own voli-
tion."
I find that, by reason of his experience in the industry,
and his insight into the business preferences and practices
of his principal customers, Bachofer, at pertinent times,
entertained a genuine fear that successful organization of
his operation by a union would result in the loss of con-
tracts and economic viability sufficient to sustain his
present operation. 2 2 I further find that, upon learning of
the effort of employees to organize, Bachofer articulated
this fear and belief to his supervisors and, early in the or-
ganizing campaign, endeavored through Donna Flood to
convey his apprehensions to employees. I also find that,
in speaking to Donna Flood on January 3, Bachofer was
expressing his belief of the probable consequences
beyond his control of the employees' selection of a union
to represent them in collective bargaining. It is not deci-
sionally significant that customer policy of using non-
union contractors had been decreed in advance of the in-
stant organizing campaign and not as a direct response to
it. Bachofer knew the policy and characterized it accu-
rately. I further find that this was the character of his
later comments to Burgess, Jeany Smith, and Stotts, on
separate subsequent occasions. Nothing in Bachofer's
statements conveyed the notion that he would act with
retribution or from personal hostility towards the Union.
In those instances, found above, wherein he expressed
concern over the impact of union conditions upon profit-
ability, he offered to support his assertion with financial
data. When he spoke pointedly concerning employee re-
sponsibility for the economic perils of organizing (as he
did with Jeany Smith and Stotts) he inferred no retali-
atory action, but postulated only economic consequences
reasonably foreseeable as a result of predictable re-
sponses of key customers. I therefore conclude that,
evaluating Bachofer's statements in the context of their
labor relations setting, including the nature of Respond-
ent's operation as a contractor in the garment industry,
Bachofer's insight into industry practice garnered over
approximately 25 years of experience, his assessment of
the labor relations practices of his two principal custom-
ers, and the nonunion status of his entire array of cus-
tomers, it must be held that Bachofer's utterances were
permissible statements protected by Section 8(c) of the
22 Bachofer credibly testified that a representative of one of his tuo
principal customers was in the plant "quite a few times" during the uion
organiiig campaign Bachofer further testified that the same representa-
tiLe had also observed some official election notice, posted in the plant
According to Bachofer's estimony, which I credit. the representatist in-
quired if there were uniton actisity in the plant and stated that his organi-
altlon was "I(X) percent non-union" I find this transpired after JanuarN
1
PATSY BEE, INC. q
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, and not threats violative of Section 8(a)(1) of the
Act. See N.L.R.B. v. Gissel Packing Co., Inc., supra;
Southern and Western Lumber Company d/b/a Gray
Flooring, 212 NLRB 668, 673 (1974); Emily Tweel Jacobs,
Russell Jacobs, and Emil Tweel, d/b/a L. Tweel Importing
Co., 219 NLRB 666, 674 (1975); cf. East Side Shopper,
Inc., Tri-County Printers, Inc., Circulation Service, Inc., d/
b/a Dawn (Detroit Area Weekly Newspapers, Inc.), 204
NLRB 841, 844-845 (1973); Plastic Film Products Corp.,
238 NLRB 135 (1978).
In a similar vein, I find that Emmerich's assertion to
Jeany Smith, to the effect that Bachofer would have to
close the plant if the Union came in; Westover's answer
in response to Miller's question relating to the possible
closing of the plant; and Johnson's response to Betty
Cook in mid-February were similarly protected as state-
ments of opinion as to the economically motivated, likely
action to be taken by Bachofer in the face of a loss of
contracts. I find that these line supervisors who pos-
sessed no skills in the vocabulary or nuances of labor re-
lations parlance were repeating their interpretation of
fears, apprehensions, and predictions which Bachofer had
conveyed to them in their own councils. Contrary to the
General Counsel, I find that the statements and responses
were devoid of threat and were utterances which the
three separate employees to whom they were directed
were capable of accurately evaluating.
On the other hand, I find that, in expanding his re-
sponse to Miller's inquiry in mid-February relating to
possible closing of the plant, Westover implied an unlaw-
ful threat by inferring that pretextual reasons for closing
the plant were available to Bachofer, as well as econom-
ic justification for his action. Likewise constituting a
threat was Emmerich's statement to Flood on December
2 asserting that Bachofer would "shut the door" before
he would accept the Union.
In a related sense, I reject the General Counsel's con-
tention that Emmerich unlawfully implied that Hage-
busch would not be recalled from layoff in the event the
Union won the election. The credited testimony of Em-
merich refutes the basis for the General Counsel's aver-
ment.
Finally, I find that the General Counsel failed to prove
that employees were deprived of a scheduled wage in-
crease because of the viability of a union organizing cam-
paign. The principal evidence to support the notion that
wage increases were scheduled evolves from testimony
of employees to the effect that, in processing their appli-
cations for hire, Woolford had informed them that raises
would be forthcoming at the end of 3 months of employ-
ment. The record suggests, however, that Woolford was
not empowered to bind the Company, and wage in-
creases were dependent upon work performance and
proficiency. The evidence does not establish the exist-
ence of either an authoritative promise of wage increases
to specific employees at specific times or a failure to
abide by established practice. It does suggest that eco-
nomic concerns were a factor. The inference that some
employees had been frustrated in their expectation of a
wage increase is not sufficient, on the instant record, to
establish a union-related improper motivation.
IV. THE REPRESENTATION CASE
A. Objection 2
As found, Objection 2 alleges interference with the
conduct of the secret-ballot election arising from threats
of economic reprisals on the part of the Company calcu-
lated to discourage employees in the exercise of their
union activities; I have found that on February 26 Imo-
gene Johnson unlawfully threatened Betty Miller with
loss of employment because she was engaged in union or
other protected concerted activities; and on March 1, Ba-
chofer impliedly warned that he would withhold benefits
because of union activity. This conduct, hereinbefore
found violative of Section 8(a)(l) of the Act, which tran-
spired subsequent to the filing of the representation peti-
tion and prior to the election, constitutes conduct which
interfered with the laboratory conditions requisite to the
conduct of a fair election. See The Ideal Electric and
Manufacturing Company, 134 NLRB 1275 (1961); Dal-
Tex Optical Company, Inc., 137 NLRB 1782 (1962). 1 sus-
tain Objection 2.
B. Objection 5
Prior to the election an official notice of election was
posted in approximately six areas of the plant, including
the cutting room. Incorporated in the official notice was
a sample of the official secret ballot to be used in the
representation election scheduled to be conducted on
March 27. On March 21, Walter Massey, a machine op-
erator assigned to the cutting room, observed a large
"X" marked in black tailor's chalk through the "NO"
box in the sample ballot appearing in the notice of elec-
tion posted on the wall in the cutting room. He informed
Larry Wolf, supervisor in the cutting room, of what he
had seen and asked Wolf if he had seen it. Wolf stated
that he had. Approximately 2 days later, Massey spoke
again with Wolf and asked him if he had spoken to Ba-
chofer about the notice. Wolf stated that he had and that
Bachofer was angry about the marking because there
was nothing he could do about it once the ballot had
been marked.
On the morning of March 27, just prior to the election,
Bachofer and officials of the Union toured the plant with
a Board agent for the purpose of checking the notices
posted in the plant. When this inspection was conducted,
the notice which Massey had observed in the cutting
room was still posted and, in addition to the mark in the
"NO" box, a question mark approximately the same size
as the letter X contained in the "NO" box had been en-
tered on the face of the sample ballot in the close vicini-
ty of the "YES" box. Between March 21 when Massey
observed it and the morning of March 27 when it was
removed, the official notice had remained posted in the
cutting room. 23
I shall recommend that Objection 5 be overruled.
Where, as here, the defacement or improper marking of
an official notice of election cannot be attributed to the
successful party to an election, the Board has refused to
set aside the election solely on the basis of such misuse.
23 The foregoing is based on a composite of the credited testimony of
Walter Massey and Kay Barker
PATSY BEE, INC. 987
E.g., Keller Dye Finishing Company, 184 NLRB 524
(1970). Moreover, there is no basis here for concluding
that the defacements which occurred were of a type rea-
sonably suggesting the Company's misuse of the defaced
notice for partisan campaign purposes. Cf. Mademoiselle
Shoppe, Inc., 199 NLRB 983, 984, 990 (1972). While the
defaced notice remained in place for a period in the
plant, this appears to have been due entirely to nonfea-
sance and a lack of awareness on the part of the Compa-
ny of its rights and responsibilities in seeking to accom-
plish a prompt removal of the notice from its posted po-
sition in the plant. Cf. Murray Chair Company, Inc., 117
NLRB 1385 (1957).
V. THE UNION'S CARD MAJORITY
A. Gissel Remedy Request
The General Counsel requests a remedial order direct-
ing Respondent to recognize and bargain collectively
with the Union concerning the terms and conditions of
employment of employees in the unit found appropriate
for the purposes of collective bargaining. It becomes es-
sential, therefore, to determine whether or not the
Union, at a point in time prior to March 27, commanded
a card-based majority in the unit herein found appropri-
ate. I find that it did.
B. The Size of the Bargaining Unit
The parties stipulated that, on February 23, the collec-
tive-bargaining unit included, but was not limited to, 84
employees. The inclusion of Raymond Hightower,
Robert Jones, Frank West, and Marvene Woolford is in
dispute. Assuming for analytical purposes their inclusion,
88 employees would comprise the unit.
Between January 4 and February 21, 47 unit employ-
ees executed union authorization cards and the authentic-
ity of the signatures is not in issue.2 4 The validity of four
authorization cards is in issue.
Deborah Snow signed an authorization card on January
23, which had been presented to her by Donna Flood. In
the presence of Toni Hagebusch, Flood asked Snow to
sign the card. Snow testified that she was initially reluc-
tant to do so. Snow further testified that she did affix her
signature to the card after Hagebusch urged her to do so
and after Flood asserted that the cards were being passed
out for the purpose of "trying to get an election, trying
to get this union started," and that if she did not sign she
would lose her job. 2
William Coffey signed an authorization card on Febru-
ary 11. He testified he did so after Mike Smith asked him
if he wanted a union election. According to Coffey's fur-
24 At an early point in the hearing, counsel for Respondent stated, in
effect, that, as the hearing progressed, substantial evidence would be de-
veloped revealing that the cards were signed "in an atmosphere and
under representations that would invalidate virtually all" of them. The
record contains no credible showing to this effect. Moreover, the evi-
dence relating to the circumstances surrounding the signing of authoriza-
tion cards by Letha Burnett and Jeany Smith is such as to form no basis
for excluding their cards. They are found to be valid designations.
25 The testimony of Deborah Snow reveals that, in advance of the in-
stant hearing, she was interviewed by a counsel for the General Counsel,
Mary Cracraft, and that she then recounted the substance of the forego-
ing to Counsel Cracraft.
ther testimony, he answered the question in the affirma-
tive, whereupon Smith presented a card and asked him
to sign it. Coffey testified that he did so voluntarily.
Jacqueline McComas signed an authorization card on
February 16 which was presented to her by Donna
Flood. McComas testified that Flood had spoken to her
on three or four previous occasions about signing an au-
thorization card. In addition, McComas testified that she
had heard conversations about the Union and that, when
Flood had first spoken to her about signing a card, there
had been some conversation concerning the benefits of
unionization. In speaking with Flood on occasions prior
to February 16, McComas had told Flood that she did
not want to commit herself on the union matter. Accord-
ing to McComas' further testimony, when Flood again
approached her on February 16, she told Flood again
that she was not ready to commit herself on the issue of
unionization but Flood had answered, according to
McComas, that the card was just for the purpose of
holding an election. McComas testified that she could
not recall all of the conversation between Flood and her-
self on February 16. Flood credibly testified that she did
not tell McComas that the only purpose of the card was
to obtain a Board election, and she further credibly testi-
fied that McComas had been present with other employ-
ees during lunch hours when the topic of the organizing
campaign had been discussed in a context revealing the
purpose and function of authorization cards.
Atsuko White signed an authorization card on February
21. White testified that the card was presented to her by
an individual whose identity she could not recall. White
did not read the card before signing it, but she affixed
her signature after being directed "just to sign" the card.
Before signing the card, White had heard conversations
concerning the benefits of unionization. After signing the
card, she heard rumors to the effect that the plant would
"close down." On February 28, White obtained a piece
of paper from the office on which she wrote, "I have
changed my mind going to the union and I would like to
have my card back." White signed the paper and dated
it. She testified that she presented the paper to Donna
Flood, but Donna Flood denies having received it.26
C. Numerical Majority
No genuine issue was developed with respect to 43 of
the authorization cards obtained by the Union in the
period between January 3 and February 21. I conclude
that those 43 cards which authorized the Union to repre-
sent the signatory employees "for purposes of collective
bargaining . . . as to wages, hours, and working condi-
tions" constituted valid authorizations and must be in-
cluded in calculating the Union's numerical majority.
Moreover, I find that the authorization cards of William
Coffey, Jacqueline McComas, and Deborah Snow must
be included in the computation of the Union's majority
2s Atsuko White is of Japanese origin and prior to the hearing had
lived in the United States for approximately 13 years. As she testified
before me at the hearing, she impressed me as an individual who pos-
sessed a workable but limited proficiency in the use of the English lan-
guage She impressed me also as a witness who endeavored to testifS ac-
curately but whose descriptive capabilities were limited because of lan-
guage deficiencies
PATSY BEE, INC.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status. I reach this determination upon an application of
the rationale expressed by the Board in Keystone Pretzel
Bakery, Inc., 242 NLRB No. 77 (1979); cf. Serv-U-Stores,
Inc., 234 NLRB 1143, 1145-46 (1978). 1 am convinced
that the totality of the circumstances surrounding the
signing of authorization cards by Coffey, McComas, and
Snow combined to render the cards valid. This proof in-
cludes the unambiguous nature of the language on the
face of the card; and the absence of evidence, (1) of any
deliberate effort on the part of the person who solicited
the signatures to direct the employees to disregard the
language on the card, or (2) of misrepresentation to the
effect that the cards would be used solely for the pur-
pose of obtaining an election, and for no other purpose.
The realities are that these cards were signed at a time in
the organizing campaign when the pros and cons of
unionization had been widely debated and discussed by
the employee complement, and this factor must be con-
sidered in any "totality of circumstances" assessment of
the climate surrounding the execution of authorization
cards by Snow and McComas, if not Coffey. In the ab-
sence of any misrepresentation as to the purpose of the
cards, and considering evidence suggesting an awareness
on the part of Coffey, McComas, and Snow of the pur-
pose of the cards, I find them to be valid designations of
the Union as the collective-bargaining representative of
the signatory employees. It follows, therefore, that the
Union possessed a minimum of 46 valid designations at a
point on or before February 21.27 Accordingly, I find it
unnecessary to determine whether the authorization card
of Atsuki White may be included in computing the
Union's majority.
Having concluded that the Union had 46 valid authori-
zations at a point in time prior to the election, it becomes
unnecessary to resolve the issue relating to the unit
placement of Raymond Hightower, Robert Jones, Frank
West, and/or Marvene Woolford. However, it appears
appropriate, in the interest of a full determination of the
factual issues raised, to make findings pertinent to the job
duties and responsibilities of each of the aforesaid em-
ployees. Respondent would include each of the four em-
ployees while the General Counsel would exclude them.
Respondent contends that inquiry into the status of
Hightower and Jones is here precluded by reason of the
fact that their names appeared on the Excelsior list and
they voted in the election without challenge. Moreover,
Respondent takes the view that present inquiry into the
status of West and Woolford is essential in that their bal-
lots were challenged in the election and the challenges
were not resolved in the postelection proceedings before
the Regional Director because their ballots were not de-
terminative of the results of the election. Respondent
would include both Woolford and West on grounds, in
substance, that at times pertinent herein they were em-
ployees with a clear community of interest with unit em-
ployees. On the other hand, the General Counsel asserts
that neither Hightower nor Jones possessed a sufficient
community of interest to have justified their inclusion in
the unit at times pertinent herein, and that West and
2' Employees Latta Massey, and Steele executed authorization cards
on February 20, and these valid authorizations were sufficient to bring
the total of the number of valid cards possessed by the Union to 46.
Woolford were supervisors within the meaning of the
Act. In this latter regard, counsel for the General Coun-
sel contends that, if Woolford is found not to possess su-
pervisory authority, she must properly be unit because
she was a dual-function employee, and her production
duties were not sufficiently extensive to include her in
the unit.
Raymond Hightower worked as a part-time employee in
the capacity of a spreader. His duties were to spread
piece goods. At all pertinent times he was a high school
student and had no defined schedule of duty hours. He
was called to work as needed and performed his duties
on Saturdays, Sundays, or after the normal working
hours of the production and maintenance employees.
Only infrequently did he work during the normal 7:30
a.m. to 4 p.m. hours of the production and maintenance
employees. Over the 12 pay periods between January 5
and March 23, Hightower worked a total of 97 hours, or
an average of approximately 8.5 hours per week. High-
tower was a close friend of Bachofer's son, Pat, a high
school student who also worked on a part-time basis
with the Company. They shared a ride to work, and
their schedule of hours closely coincided. To a degree,
Hightower's work schedule was arranged to accommo-
date his participation in high school basketball and base-
ball. 28
Robert Jones was employed by the Company during
the period February through April or May. Jones was
employed on a temporary basis to fill an existing and
urgent need for a mechanic. In employing Jones who re-
sided in the State of South Dakota, Bachofer negotiated
a salary arrangement and permitted him to retain his resi-
dence in South Dakota and commute to the plant in Blue
Springs, Missouri. Jones was initially interviewed by
Herb Westover and, prior to hire, Jones came to the
plant on a Saturday and was interviewed by Bachofer
who agreed to accede to Jones' stipulation that he be
paid a salary and be permitted to commute from his resi-
dence in South Dakota. Jones continued to reside in
South Dakota throughout the term of his employment. 2 9
Frank West worked in the cutting department as a
cutter. His primary responsibility was the operation of
the slitting machine and he performed subsidiary duties
in the cutting department, as required. West worked
under the supervision of Larry Wolf, and his weekly
gross compensation was second only to that of Wolf.
Operation of the slitting machine requires a high degree
of skill and accuracy due to its interrelationship with
other functions performed in the sewing department.
2~ The foregoing is based on the credited testimony Iof' Donald Ha-
chofer. the stipulation of the parties, aind documentary evidence of
record The stipulation of the parties entered into the record is at appar-
ent variance with information contained on the ace of Hlightower's time-
cards, also entered into evidence. but the stipulation ws.as forillulated from
payroll records and is accepted as accurate
", The foregoing is based on the testimony of Donald achofer As his
testimony evolved Hachofer modified his initial statemen to the effect
that Ashen Jones as hired the Company was in "desparate need of a me-
chanlic on a temporary basis" by testifying in effect that Jones was hired
for a trial period to evaluate his skills and that his employment would
have been permanient had it worked out to the satisfaction of both par-
ties I conclude that Bachofer's initial testimnony was the more reliable
and that his subsequent refinement going to the anticipated length of
Jones' enure was rationalized. I do rot credit it
PATSY BEE, INC. 989
While West worked closely in a functional sense with
another employee, Maryanna Bouse, he possessed no au-
thority to direct the work of Bouse or to hire, discipline,
transfer, or in any other manner affect her terms or con-
ditions of employment. West's consultation with Bouse
was for the purpose of coordinating their work functions
only. 3
Marvene Woolford was employed in the office and in
the cutting room at Respondent's plant during pertinent
times. Her office duties consisted of computing cutting
room needs and issuing cutting instructions, computing
daily production of each machine operator, issuing and
receiving employee job applications, and answering the
telephone. In preparing cutting room orders, Woolford
worked in conjunction with Larry Wolf, and their com-
putations and instructions were to an extent based on the
size of the contractor order to be filled. The time spent
by Woolford in connection with this duty would vary
depending on the size and number of orders, and she
might spend a maximum of 25 percent of her workday in
this pursuit. Similarly, the time spent in computing daily
production would vary but would generally require ap-
proximately I hour per day. Woolford's duties in con-
nection with issuing and receiving job applications were
limited to presenting blank application forms to individ-
uals requesting them, receiving completed application
forms from applicants, and making the application availa-
ble to the plant manager. However, in conjunction with
issuing or receiving the application forms, Woolford
would answer questions concerning wage rates based on
her own comprehension of company wage practice and
policy. In addition to her office duties, Woolford also
worked in the cutting room making markers and tickets,
bundling materials, and performing other miscellaneous
tasks to assist cutting room personnel. In connection
with her total overall duties, Woolford spent approxi-
mately 50 percent of her time in the cutting room and a
like percentage in the office. Woolford possessed no au-
thority to hire, terminate, recall, assign, or transfer per-
sonnel, or to effectively recommend such action. Wool-
ford was hourly paid and punched a timeclock."'
Upon the foregoing findings of fact, and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Patsy Bee, Inc., is, and at all times ma-
terial herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Northwestern District Council of the International
Ladies' Garment Workers' Union, affiliated with Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time shipping, produc-
tion and maintenance department employees employed
by Respondent at its Blue Spring, Missouri, facility, ex-
30 The foregoing is based on the crediled lesllrno of D)onald 1Ba-
chofer and a stipulation of the parlie,
:l The foregoing is based on the credited testmiron of Nlarerne vWool-
ford I have also considered the teslimny ov of l)onia Fl ood, I';n Buurges,,
Debbie Stotts. Patl .aswvell, and Betty Miller. hich is deemed consistent
with the fregoillg filndigs
eluding office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act, consti-
tute a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. By interrogating employees concerning their in-
volvement in union or other protected concerted activi-
ty; by threatening employees with loss of employment
and benefits if they supported or selected the Union as
their collective-bargaining representative; by engaging in
surveillance of the union and protected concerted activi-
ties of employees, and by giving employees the impres-
sion that their union and other protected concerted ac-
tivities were under surveillance; by implementing an un-
lawfully broad no-distribution rule governing the distri-
bution of union literature in nonworking areas during
nonworking time; by soliciting employee grievances and
implying a willingness to correct or rectify said griev-
ances, both for the purpose of inducting employees to
abandon their support for the Union; and by implying
that future favors or benefits would be denied employees
because of their support of the Union and/or their par-
ticipation in protected concerted activities, Respondent
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act,
and violated Section 8(a)(l) of the Act.
5. The Union's Objection 2 to conduct affecting the re-
sults of the secret-ballot election conducted in Case 17-
CA-8710 is meritorious and it is recommended that the
objection be sustained. The Union's Objection 5 is with-
out merit and it is recommended that it be overruled.
6. At a relevant point in time prior to March 27, the
Union had secured valid authorization cards from a ma-
jority of employees in the aforesaid appropriate unit.
7. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
8. Respondent did not withhold a scheduled wage in-
crease because employees had engaged in union activi-
ties, as alleged by the General Counsel in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I conclude, however, that a bargaining order is not
warranted in this case. Rather, I am convinced and find
that the effects of Respondent's conduct can be effective-
ly eradicated by the imposition of traditional remedies
without resort to extraordinary remedial action of the
type requested by the General Counsel.
At the outset, it is noted that Bachofer, Respondent's
president, and the source of ultimate authority in the
Company's enterprise, engaged in no impermissible
threats of plant closure and launched no assault upon the
job tenure or security of individual employees in the
work complement. Moreover, the discussion of plant clo-
sure and job loss that did occur was in context of predic-
tion as to the likely response of customers to the unioniz-
ing of the plant, thus suggesting to employees that Ba-
chofer's response to their selection of a union would not
be retributive in nature, but defensive in character as a
PATSY BEE, INC 98Y
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
means of conserving financial resources. Thus, the isolat-
ed comments of Westover and Emmerich dealing with
job loss were susceptible of ready evaluation by the two
employees to whom the comments were made, or by em-
ployees who may have learned of the statements.
The other violations of Section 8(a)(1) of the Act per-
petrated by Respondent were not of a character suffi-
cient to merit a bargaining order. Rather, viewed in the
total context of the 3-month organizing effort, the unlaw-
ful conduct is not deemed flagrant, pervasive, or egre-
gious, when assessed in context of the totality and con-
tent of the actual occurrences (particularly l(b), (c), (f),
(g), and (h) below), and not facially and in numerical
terms. Thus, it is concluded that the conduct had only
minimal effect on the election process and may best be
remedied by traditional means and by setting aside the
election and directing the conduct of a new election,
thus protecting the rights of employees to voice their de-
sires through the preferred forum and devise of a secret-
ballot election. See, e.g., Stoutco, Inc., 180 NLRB 178
(1969); Capitol Foods, Inc. d/b/a Schulte's IGA Foodliner,
241 NLRB 855 (1979); Dependable List, Inc., 239 NLRB
1304 (1979); cf. N.L.R.B. v. Gissel Packing Co., Inc.,
supra; General Stencils, Inc., 195 NLRB 1109 (1972);
Chatfield-Anderson Co., Inc. d/b/a Truss-Span Company,
236 NLRB 50 (1978); Keystone Pretzel Bakery, Inc., supra,
Jamaica Towing Co., supra; World Wide Press, Inc., 242
NLRB No. 40 (1979).
[Recommended Order omitted from publication.]