Lenkurt Electric Co., Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1968

169 N.L.R.B. 941 (N.L.R.B. 1968)

LENKURT ELECTRIC CO. Lenkurt Electric Company, Inc. and San Francisco & Vicinity Printing Pressmen , Offset Workers & Assistants' Union No. 24, International Printing Pressmen and Assistants ' Union of North America, AFL-CIO Lenkurt Electric Company , Inc. and San Francisco & Vicinity Printing Pressmen , Offset Workers & Assistants ' Union No. 24 , International Printing Pressmen and Assistants ' Union of North America, AFL-CIO, Petitioner . Cases 20-CA-4284 and 20-RC-7154 February 19, 1968 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On October 10, 1967, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. In addition, the Trial Examiner found no merit in the Union's objections to the election filed in Case 20-RC-7154 and recommended that the objections be overruled, and that the results of the election be certified. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Deci- sion and supporting briefs and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- I The election results showed that of 14 eligible voters, 14 ballots were cast, of which 5 were for the Union, 7 against the Union, and 2 were chal- lenged. = In this connection, Linka testified that he advised employees as fol- lows. As far as coffee breaks, lunch hour, regimentation of the shop, that would be enforced . from what I had observed down at Building 4, [unionized] a bell rings and they go out, and a bell rings again and they come back, in ten minutes . . The same thing would apply to lunch. . a half hour for lunch. .. We have a rather casual arrange- 941 mendations of the Trial Examiner only to the extent consistent herewith. The complaint in Case 20-CA-4284 alleged, in substance, that the Respondent, through its super- visor, Linka, violated Section 8(a)(1) of the Act by threatening employees with more restrictive condi- tions of employment if the Union were selected as their collective-bargaining representative. In addi- tion, the Union's objections allege that such threats, as well as certain other conduct of Respondent such as its electioneering on its premises within 2 hours of the election; its distribution to employees of let- ters containing falsehoods; and its announced withholding of benefits because of the pendency of the petition, interfered with a free and untram- melled choice by employees in the election.' In dismissing the complaint in its entirety and finding the objections to the election without merit, the Trial Examiner discredited every witness for the General Counsel and accepted the version of every alleged unlawful incident as related by wit- nesses for the Respondent. He further concluded that "every incident alleged by the General Counsel to be a violation of Section 8(a)(1) has been unequivocally and categorically denied by the Respondent's witnesses." However, contrary to the Trial Examiner, we are satisfied that testimony of Supervisor Linka, a witness for the Respondent, substantiates material allegations of the complaint. Thus for purposes of this Decision we need not disturb the Trial Examiner's credibility findings, but nevertheless find merit in the positions of the General Counsel and Charging Party that the Respondent, during the critical preelection period, engaged in various acts violative of Section 8(a)(1) and that such conduct warrants setting aside the election. 1. The credited testimony of Supervisor Linka indicated that starting about 2 weeks before the election, he called employees in groups of three or four into his office several times for meetings. At these meetings he told them, either directly or by clear implication, that if they selected the Union their coffeebreaks and lunch hours would be tightly controlled; 2 their conversations during working hours would be restricted;3 and the Respondent would stop providing smocks and laundry service for employees and would run lesser grade paper stocks, which would make operating the presses meat for the salaried employees [nonunion] [they] probably averaged 40 or 45 minutes They only have a half hour for lunch, but . it wasn't really enforced that you get back in a half hour . Linka admittedly told employees that The whole environment and atmosphere is different now in the facto- ry [unionized] than it was before . the people sit at a bench, and there is a minimum of talking, conversation . I am sure they are ob- served if they have to go to the restroom or something It is definitely a production operation. 169 NLRB No. 127 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more difficult.4 In addition, Linka told employees that under a union shop they would not enjoy present sick leave benefits, and would not be paid when time was lost due to sickness.5 Linka also ad- mitted telling two employees, Brown and Birtwell, that their limited abilities could disqualify them for work in a union shop, because when the Union came in, employees would have to operate all presses, and those who could not might be replaced by other operators from the union hall. 6 In addition, Linka told Birtwell that if the Respondent wanted to rehire her, but found people at the hiring hall who could do better work, she would not be rehired and would forfeit her pension. 7 The Trial Examiner found that all the above statements were not threats of reprisals, but fair comments or predictions of unfavorable con- sequences resulting from unionization. He thus concluded that since in his view these statements were not motivated by union animus, they were neither violative of Section 8(a)(1) nor grounds for setting aside the election. Apparently, he also con- cluded that such remarks would not be unlawful in any event, since they were of an isolated nature. We disagree. Linka's remarks were made in the course of meetings conducted in his office with small groups of employees. Systematic interviews for the purposes of exposing employees to antiu- nion propaganda not dissimilar to those conducted by Linka have been held inherently coercive and grounds for setting aside an election." Although such a finding is unnecessary in this case, evalua- tion of Linka's remarks requires consideration of the context in which they were made. The clear im- port of his statements concerning coffeebreaks, Cross-examination of Lmka reveals the following Q (By General Counsel) Did you say that it was very possible that you might have to discontinue providing the smocks and laundry service for the employees9 A (Linka) I could have said that yes, and I also said that they would have to run lesser grade stocks possibly .. At Lenkurt, hav- mg a lesser skilled operation or type of pressman in there, it was to our advantage in most cases to run premium stock, heavier weight, to increase our production . There are less changeovers and problems in running the press. So I told them that if the Union were in there .. the first thing I probably would do would be to institute less expensive stock Q. Did you find in using cheaper stock that it did cause more problems for the operator? A Oh, yes Lanka explained the possible changes in sick leave benefits as follows- Q (By General Counsel) Now what other things might not be the same? A. (Linka) As I mentioned, their sick leave, the days off for illness or otherwise Q. Will you explain that? A. The arrangement had been that it was up to the department manager's discretion, within the limits of his authority, to approve a leave of absence up to five days with pay. My understanding of the Union was that if you didn't come to work you didn't get paid for it. . . lunch periods, sick leave, possible loss of jobs, regi- mentation, etc., was that present benefits would be endangered or diminished with the advent of the Union. Coming from Linka, who had been em- ployed by Respondent for 15 years and was manager of the unit in which the election was directed, these references concerning steps that could be taken by management in the event the Union were certified would quite naturally be given great weight by the employees. Accordingly, whether they be viewed as predictions or expres- sions based on Linka's experience with unions, his statements were reflective of restrictions Respond- ent was in a position to invoke if the employees designated the Union. "It is well settled that an em- ployer's `prediction' of untoward economic events may constitute an illegal threat if he has it within his power to make the prediction come true."9 And as "the likely import of respondent's pronouncements was coercive"10 and calculated to dissuade em- ployees from supporting the Union in the impend- ing election, the impact of Linka's repeated threats upon employee freedom of choice cannot be dismissed as isolated because they were not shown to have been motivated by union animus. Ac- cordingly, we find, contrary to the Trial Examiner, that Respondent, by Linka's threats to employees at a series of meetings within a 2-week period be- fore the election, violated Section 8(a)(1) of the Act. 2. The Union's objections to the election are based, inter alia, on the unlawful conduct detailed above, which occurred after the filing of the representation petition and before the holding of the election in Case 20-RC-7154. Since we find that this conduct interfered with a free and untram- 6 Linka's account of what he told the employees was highlighted by the following . In explaining this to [Wanda] Brown and [Eleanor] Birtwell, I told them that I felt they were specialized in what they could do If the plant were to go union and I needed an operator on one of these other presses, and I didn't feel they could operate it, or by their own action couldn't operate it, I would be compelled to say, "Go home," and I would have to call the Union hall and get somebody who could. This is what I explained to them * * In Wanda's and Eleanor's cases, being more or less specialized in the equipment they operated, ... in the event there was a union, and I couldn't use her on another job or another press if the work should slow down on hers, or couldn't move her into another department that wasn't an hourly-type operation, it was conceivable that she would be laid off. ' Here, Linka's testimony concedes I also explained to [Eleanor Birtwell] that if things were slow at Len- kurt for any period of time and she would go out on anotherjob and we wanted to bung her back and we found somebody else out of the hall that would probably do her job a little better, she would forfeit her pension if there wasn't a spot with Lenkurt. 8 General Shoe Corporation, 97 NLRB 499, 501-502; Economic Machinery, Division of George J. Meyer Mfg. Co, 111 NLRB 947, The GreatAtlantic & Pacific Tea Co., Inc., 140 NLRB 133, 134-135. International Union of Electrical, Radio and Machine Workers, AFL-CIO [NECO Electrical Products Corp ] v N L R B., 289 F.2d 757, 763 (C A.D.C.) 10 N.L.R B v. Kolmar Laboratories, Inc, 387 F.2d 833 (C A 7) LENKURT ELECTRIC CO. melled choice in the election, we find merit in the Union's objections and shall set aside the election of October 14, 1966, in Case 20-RC-7154 and direct that a new election be held by the Regional Director for Region 20.11 ADDITIONAL CONCLUSIONS OF LAW Delete paragraph 3 from the Trial Examiner's Conclusions of Law and substitute the new para- graphs 3,4, and 5 therefor: "3. By threatening employees with reprisals for their membership in or support of the Union, as set forth above, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." "4. The aforesaid unfair labor practices are un- fair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act." "5. Between August 29 and October 14, 1966, inclusive, the Respondent engaged in conduct inter- fering with its employees' freedom of choice in selecting a bargaining representative, and such con- duct warrants setting aside the election conducted on October 14, 1966, in Case 20-RC-7154." THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, there is hereby issued the follow- ing: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Lenkurt' Electric Company, Inc., San Carlos, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Threatening employees with reprisals for their membership in, support of, or activities on be- half of the Union. " Since we have set aside the election, we find it unnecessary to pass upon the Union's further objections to the election- ' 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " IS An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional 943 (b) In any like or related manner interfering T with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified'by the Labor-Management Re- porting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its San Carlos, California, plant, co- pies of the attached notice marked "Appendix.' 112 Copies of said notice, on forms provided by the Re- gional Director for Region 20, after being duly signed by Respondent's authorized 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 employees are customarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the election held on October 14, 1966, among Respondent's employees, be, and it hereby is, set aside, and that Case 20-RC-7154.be remanded to the Regional Director for Region 20 for the purpose of conducting a new election in the appropriate unit at such time as he deems that the circumstances permit the free choice of a bargaining representative. [Direction of Second Election13 omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: Director for Region 20 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No ex- tension of time to file this list shall be granted by the Regional Director ex- cept in extraordinary circumstances Failure to comply with this require- ment shall be grounds for setting aside the election whenever proper ob- jections are filed Excelsior Underwear Inc., 156 NLRB 1236 944 DECISIONS OF NATIONAL WE WILL NOT threaten employees with reprisals for their membership in, support of, or activities on behalf of San Francisco & Vicini- ty Printing Pressmen, Offset Workers & Assistants' Union No. 24, International Print- ing Pressmen and Assistants' Union of North America, AFL-CIO, for the purpose of inter- fering with, restraining, or coercing our em- ployees in the exercise of rights guaranteed them in Section 7 of the National Labor Rela- tions Act, as amended. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-or- ganization, to form labor organizations, to join or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment in conformity with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, or remain, or to refrain from becoming or remaining, members of any labor organization, as guaranteed by Section 7 of the Act. Dated By LENKURT ELECTRIC COMPANY, INC. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1350 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 556-3197. TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS STATEMENT OF THE CASE Background HENRY S. SAHM, Trial Examiner: Upon an initial charge filed on October 24, 1966, and amended on December 7, 1966, by San Francisco & Vicinity Printing LABOR RELATIONS BOARD Pressmen, Offset Workers & Assistants' Union No. 24, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20 (San Francisco, California), issued a complaint, dated February 3, 1967, against Lenkurt Electric Company, Inc., hereinafter referred to as both the Company and the Respondent. With respect to the unfair labor practices, the complaint charged that the Respondent Company, by a supervisor named Kenneth Linka, engaged in various violations of Section 8(a)(1) of the Act, which were alleged to have consisted of threatening its employees with reprisals in the event they selected the Union as their collective-bar- gaining representative and interrogating them concerning their sympathies for, membership in, and activity on be- half of the Union.' The Union initiated an organizational campaign in Au- gust 1966, among the employees in Respondent's printing department of its San Carlos, California, plant. On Au- gust 29, 1966, the Union filed a representation petition with the Board for an election and the Board, after hold- ing a hearing on September 16, 1966, directed, on Sep- tember 27, an election to be held October 14 (Case 20-RC-7154). The Regional Director thereupon con- ducted an election on October 14, 1966, to determine the employees' choice of a bargaining agent. The Union lost the election. The tally of ballots showed there were 14 eligible voters and that 14 ballots were cast, of which 5 were for the Union, 7 against the Union, and 2 chal- lenged. Thereafter, by a letter dated October 19, 1966, the petitioning Union filed objections to the conduct of the election. The objections allege: 1. That the Respondent engaged in electioneering on company premises within 2 hours of the commencement of the election. 2. The Company wrote and distributed a series of let- ters to each employee in the unit, some of which were un- truthful: specifically, there was an untrue claim in a letter dated October 7, 1966, in the third paragraph; the Union made no guarantees. In the last paragraph of the same letter the Company falsely stated that under a union agreement employees' initiative and ability could not be rewarded and that the "employees must wait for seniori- ty"; this was a basic issue in the campaign and the letter falsely fails to state that questions such as merit raises and seniority clauses subject to ability and payment above scale could all be subject matter of negotiations. 3. Company representatives conferred with groups of employees immediately prior to the election and specifi- cally told them that if the Union won the election their jobs could not be guaranteed. 4. The Company, immediately preceding the election, advised all employees in the unit that raises would have been in effect had the Union not filed for an election and made available a schedule of these raises in a looseleaf ' The General Counsel's representative, in his opening presentation at the hearing, claimed that Linka interrogated employees in his office con- cerning their union sympathies and threatened that, in the event the Union was selected as the employees' collective-bargaining representative, they would not receive their regularly scheduled annual wage increases and that Respondent would subcontract the work performed by them; discharge employees, cease giving overtime work and sick leave pay to them, and change other conditions of their employment LENKURT ELECTRIC CO. book which could be reviewed by the employees at the supervisor's desk. None of the employees had ever been informed that such raises were contemplated prior to the filing of the petition. On April 5, 1967, the Regional Director issued an order directing that the hearing on objections (Case 20-RC-7154) be consolidated with the unfair labor prac- tice allegations (Case 20-CA-4234), both cases were set down for hearing , and the Trial Examiner was requested to prepare a report "containing resolutions of the credi- bility of witnesses , findings of fact, and [recommendations to the Board as to the disposition of said issues in order to resolve the issues raised by the Union's objections to conduct affecting the results of the representation election]." The answer of the Respondent was a general denial, disclaiming equivocally the commission of any unfair labor practices.2 On April 11 , 12, and 13 , 1967, the Trial Examiner, Henry S. Salim , held a hearing with respect to the issues in the consolidated case at San Francisco , California. Upon the conclusion of the taking of testimony , counsel for the various parties waived oral argument and filed briefs on June 2, 1967 , which have been fully considered. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a subsidiary of General Telephone and Electronics, Inc., has been engaged since 1947, in the design, development, engineering, and manufacturing of "telecommunications equipment at San Carlos, California, and other locations. Approximately 3,500 employees work at the San Carlos plant. During the past calendar year, Respondent, in the course and conduct of its busi- ness operations has purchased, transported, and received goods valued in excess of $50,000, which were shipped directly to its San Carlos plant from places located out- side the State of California. During the same period of time, Respondent shipped directly to customers located outside California goods valued in excess of $50,000. Respondent, during the past year, has received in excess of $1 million for services performed for the United States Department of Defense. No jurisdictional issue is in- volved. Upon the above-admitted facts, it is found that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.3 II. THE LABOR ORGANIZATION INVOLVED The Union herein is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Testimony Wanda Brown, who has been employed for over 3 years in Respondent's printing department, testified that 2 See Sections 102 20 and 102.21, of the Board's Rules and Regula- tions, Series 8, as amended ; Fed. R. Civ P . 8(b) and 11; Cyclopedia of Federal Procedure , 2d ed. § 1290; Mesirow v. Duggan , 240 F.2d 751,756 (C. A. 8) 3 The unit is as follows. "All employees employed by the Employer at its San Carlos , California, operation engaged in camera work, platemak- ing, assembly of negatives , opaquing and offset printing within the press- room, the process camera, and Itek sections of the Reproduction Services 945 the quality of her work and her coworkers was in- dividually evaluated annually by the Company to deter- mine if they were entitled to wage increases. Her super- visor, Kenneth Linka, had been preparing since March or April 1966 a report which was to be submitted to com- pany officials regarding, inter alia, his recommendations with respect to the reclassification of jobs and proposed salary increases in the printing department. Linka trans- mitted his recommendations to his superiors on May 9, 1966 .4 Brown testified, "We were always after Linka for more money," so in June 1966, 2 months before the Union made its advent on the organizational scene, she went to his office and inquired whether she would be receiving a wage increased. He informed her his report had already been forwarded to company officials and that he had recommended a reclassification of her job, subject to his superior's approval. The Union began its organizational campaign among the printing department employees sometime in August 1966. The Union filed its representation petition on Au- gust 29, and the Regional Director, on September 27, or- dered an election to be held on October 14. In the mean- time, the Union held three meetings with the unit em- ployees between August and the election, the last being a dinner meeting held at a restaurant the night before the election. During the same period of time, Linka, supervisor of the unit employees involved herein, met with the em- ployees of the first and second shifts during working hours, beginning on September 27. The first meeting of the employees working on the first shift was held in his of- fice when they asked to see him.5 Present were Wanda Brown and Arthur Horsell and for management, Linka and Walter Wood, a supervisor, who was replaced during the meeting by another supervisor, James Huchingson. Brown's testimony as to what occurred at this meeting follows: "I told Ken Linka that I would like to talk to him but that we had heard rumors to the effect that if the Union went in that Ken would lose his job and I told him that I was concerned and he said for us to come on in and to sit down and for us not to worry at all because his job-that he would not lose his job even if we did go union-and for us not to worry about that. He was pleased that we were concerned about him So we sat down and he wanted to know why we were doing this and if we really knew, really understood what we were doing, and did we have the right union to represent us, and could it offer- did we feel that it could offer us more than the Company could give us, and he said that he didn't feel that we would ever, even if the Union was voted in, he said that we were fighting a large concern, not just Len- kurt Electric of San Carlos, but that it included thousands of people and we were only 14 little people, and he said that negotiations would just go on and on and on and after a year we would still have nothing and yet in all this time we couldn't get any money, everything would be frozen; that they couldn't do it, that the Company couldn't do Division (Building No. 1), excluding all other employees, professional em- ployees, office clerical employees, watchmen, guards, and supervisors as defined in the Act." This unit is referred to herein as the printing depart- ment 4 G.C. Exhs. 2 and 3. The second-shift employees met separately with Linka as described in a later section of this decision. 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anything for us while this negotiation was going on, and he just stressed were we sure that we really knew what we were doing." "Then he said that Art [Horsell] and I had a real bad absentee record and that if we were Union we sure wouldn't get paid for the days that we were off and which he had paid us for. He had paid us for the days that we were absent .... That was about all we discussed, that he wanted us to be sure about this. That was his big point, that we were doing the right thing. As far as I can re- member, that was the discussion in our first meeting." Linka called employees Brown, Horsell, and Eleanor Birtwell into his office on October 3 or 4. Huchingson was also present for management. Brown's testimony as to what transpired reads as follows: ". . . Ken started off again , were we sure. He kept stressing that he was wor- ried about Eleanor Birtwell and I, that we did not have the qualifications to work in a union shop, and he said that we were his big concern, that he didn't think we were qualified to work-to hold down a job in a union shop-and he said that if we didn't have a job and had to go to the union hall , that we would have to go to different areas and that if Art [Horsell] happened to be out or ab- sent for the day and he had a job that came in-well, he turned around and said, `Wanda, I will expect you or Ele- anor to run it. -6 No, we had never any experience on [other machines]. He said that that didn't make any difference; if it was union , why, then we were expected to run the press and he wanted to know if I thought I was qualified to work in a union shop, and he said that if we went union ... that he would have to get cheaper paper and that he wouldn 't let us have our smocks, and that if there was no work that we would definitely be sent home, that he wouldn't pay us for not having any work, and he said that there would be no more overtime, and I said that that didn 't bother me, I never liked to work Saturdays any- how." Her testimony continues that Linka then told her and Art Horsell that it was time for them to be reconsidered for their annual work evaluation survey but that he told them "I can't do a thing about it until this union deal is set up. He said, `You are due for your interview and you will probably get a raise but I can't do anything about it now as long as the union deal is going on .' He said that he couldn't do anything until after we had voted in the union. He still kept stressing in the meeting, he kept repeating to Eleanor [Birtwell] and I, were we sure, did we know what we were doing, did we think we were capable of be- longing to a union .... Like I said, the main point that he stressed was did we know what we were doing.... He said that if we did go union and if he found that he could send the work out and get it done cheaper on the outside, why, he would do that and maybe that it would come to the place where they would just do away with the print shop." Brown testified to a third meeting in Linka's office on October 7. The same people who attended the second meeting were present at this one. ". . . [Linka] said .. . that our reclassifications had been approved, and that it was all ready, but he said as long as the Union was in the picture,7 he said, it was frozen and he couldn't do anything, and he said that the book was not out there, and then the discussion kept going on and pretty soon he said, `If you really want to see it,' he said, `here it is.' He pulled it out [G.C. Exh. 2] and threw it on the desk and I said, `I don't want to look at it. I won't look at it.' He said, `Well, there is nothing in it that will harm you. If you want to look at it, look at it.' He said, `There is one page that you cannot see,' and he opened the book and tore a page from the book," and he said that all three of us, Art Hor- sell, Eleanor Birtwell, and myself, could look at the book, and we none of us said that we wanted any part of the book and none of us looked at the book or touched the book." The same first-shift employees were present at a fourth meeting in Linka's office on October 11, which began at 10 am. Brown at first refused to attend but she finally did after Linka prevailed upon her to do so. Supervisor Huchingson was also present. Brown testified as follows: "Ken Linka started out by saying that he was sorry, that he had called us in, and that he wanted to apologize to us for the [last] meeting. He said that there had been some bitter words and that he had said some things that he was sorry he had said and was sorry the way he had said them to us. I told him that I was sorry, that I thought it was too late for an apology, that I . . . was still hurt very deeply from the way that he had upheld the boys, and I started to get up to leave, and he said that he wanted to say that he was sorry and that he wanted to make sure that Eleanor Birtwell and I knew-that we were sure about this. He said to remember that Eleanor was old and that she couldn't go out and get another job and that he still felt that Eleanor and I weren't qualified for a union job, and he said that we were jeopardizing a lot of jobs affecting a lot of people, a lot of innocent people, and he said that we were affecting their health, that George Stanley had al- ready had two bad seizures, and if the union mess wasn't straightened up that he was liable to have another one, that we had to think of him. . . . That was the discussion of this meeting , to make sure that the Union-if we felt that the Union could do more for us than the Company, to be real sure before we voted, that this was the last time he was going to talk to us, and for us to be sure and to think it over and to think of the other people that we could hurt, and to make sure that we knew what we were doing before we voted in the election." After this meeting ended, about 11 a.m., Brown, Hor- sell, Birtwell, and the other printing department em- ployees, about 14 in all, attended a luncheon given by the Company on the same day, October 11, 3 days before the election. Various company officials spoke to them regard- ing the October 14 election and later answered questions asked by the employees. Linka's explanation of how this meeting came to be held was as follows: "Well, during the talks that I had had with the people in the group, several questions arose that I didn't feel I was capable of answer- ing because they were decisions that had to be made by higher management than myself, and I told these people that I would arrange to get the Vice President-the Pre- sident, if he was available-the Industrial Relations Manager, and people who were in a position to better answer these questions, to get them together in a meeting r, This is an unmistakable reference that, under a union contract, the women would be expected to be able to operate Horsell's press in addition to their own , whereas the Company did not require them presently to be able to operate all the various machines in the printing shop. I Brown 's other testimony makes it clear that Linka meant as long as the election was pending , reclassifications would be held in abeyance. 8 G.C. Exh . 3 which was Linka's recommendations with respect to wage reclassifications. LENKURT ELECTRIC CO. and we would arrange to have all the people there with these executives." Kenneth Linka was employed by Respondent for over 15 years, 11 years as manager of the printing department until October 19, 1966, when he left to accept a position elsewhere. There were approximately 27 supervisory and nonsupervisory employees in the department but the unit involved in this proceeding comprised 14 employees. Linka testified that a few days before the Union filed its representation petition on August 29, he had learned of the Union's organizational campaign. Some months prior to the time the Charging Union began its organizational campaign, Linka, in either March or April 1966, started drafting a report recommending to his superiors that the jobs in his department be reclassified with concomitant salary range adjustments for these jobs because of a con- siderable increase in the volume of printing work which had necessitated the institution of a second shift.9 The re- port was completed on May 9, 1966, and forwarded to higher echelon company officials on that date. Linka testified that a rumor had started around the printing department that his salary recommendations were available for the employees' examination because Brown, Horsell, and Birtwell came to his office on Oc- tober 3 or 4, and asked to see his report.' ° He explained that the Company's labor relations official had given him instructions that from September 26, the date the Re- gional Director announced when the election would be held, until October 14, the date of the election, he was not to discuss wage increases with the employees and, there- fore, he could not show them his wage reclassification recommendations. Linka told these employees he was also notified by the Company that there would be no sa- lary increases during this same period of time preceding the election. Linka's testimony continues as follows: "At this point Eleanor Birtwell got somewhat emotional and accused me of taking their side [Huchingson and Ander- son] as opposed to hers and that I was being very unfair to her. . . . After Eleanor Birtwell's hysterics . . . I .. . pulled the book out [Resp. Exh. 2] and ripped out the [wage recommendation] page [from the book, Resp. Exh. 3] and said, `There it is."' The employees however refused to look at the proposals although Horsell picked it up and leafed through a few pages and then returned it. Linka's testimony reads as follows with respect to what he told the women on the first shift, Brown and Birtwell, regarding the possible working conditions which they might encounter in a union shop: "Well, Wanda [Brown] started in the department as a trim and fold clerk ... [and I told her] that she would do a fair' job of running the Systems press . . . and as far as I was concerned that was the only equipment that she was capable of running in the department. From my experience with unions and hiring halls, I felt that in the event that she would ever leave Lenkurt or be laid off for lack of work ... that if she went down to the hiring hall, being so limited in what she could do, that she would probably have a problem in getting another job or being sent on another job." On cross-examination , Linka testified as follows: ".. . Wanda [Brown] was inexperienced when she came to 9 These recommendations for salary revisions applied to various job classifications and not to individually named employees of his department See G .C. Exh 3. 10 It appears that these employees had heard that Linka's report and recommendations could be obtained from either Supervisors Huchingson or Anderson. 947 work there. She was a specialist in running [a particular machine]. There were three other presses in the unit. To my knowledge she couldn't operate two of them. We were training her on one and she did an adequate job. She had .never worked on [another particular machine] ... [and] I didn't feel that she was qualified to operate that press either. In explaining this to Wanda [Brown] and Eleanor Birtwell, I told them that I [thought that] they were spe- cialized in what they could do. If the plant were to go union and I needed an operator on one of these other presses, and I didn't feel they could operate it ... I would be compelled to say, `Go home,' and I would have to call the union hall and get somebody who could. That is what I explained to them. ... In Wanda [Brown's] and Ele- anor Birtwell 's case, being more or less specialized in the equipment they operated, that in the event there was a union, and I couldn't use her on another job or another press if the work should slow down on hers, or couldn't move her into another department that wasn't an hourly- type operation, it was conceivable that she would be laid off and if she went down to the Union Hall to get out on a job, being somewhat restricted in her ability, I didn't feel that she would make out too well. I also explained to her that if things were slow at Lenkurt for any period of time and she would go out on another job and we wanted to bring her back and we found somebody else out of the [union] hall that would probably do her job a little better, she would forfeit her pension if there wasn't a a spot with Lenkurt. ... I asked her to naturally check with the [union] organizer to see what their pension benefits and plans were and that they might possibly be even better than Lenkurt's and that she should check it out.... To qualify as a pressman in the rate that they were told [by the Union] that they would receive I would assume that they could run all the equipment and naturally if I were in a position to have these people there I would like them to be able to move from machine to machine as required." With respect to the allegations in the complaint that Respondent threatened employees with loss' of sick leave pay, Linka testified that, under union contract, he told Brown that with the "excessive amount of time" she had taken off from work "during the year" that, "it is my un- derstanding of hourly wages that if an employee doesn't work they don't get paid for it and having seen what hap- pens down in the [Respondent's] factory with [unionized employees] and talking to associates of mine in the busi- ness, I knew that this was pretty well the case."11 On cross-examination, Linka testified that he had authority to grant a leave of absence up to 5 days with pay and he pointed out to the employees' under his supervi- sion that Respondent's unionized employees "if [they] didn't come to work [they] didn't get paid for it." He also told them that the Respondent's unionized employees "sit at a bench, and there is a minimum of talking, conversa- tion. They have a supervisor. I am sure they are observed if they have to go to the restroom or something. It is definitely a production operation." He also told the em- ployees that "they wouldn't be judged as individuals" if they were union employees "but they would be in a col- lective group as far as" wage increases were concerned. 11 Linka was making a comparison with the working conditions in Respondent's punting department and those departments of the plant which were operating under union contracts. 350-212 0-70-61 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination, when Linka was asked if he threatened employees with changes in their conditions of employment if they selected the Union, he testified that he explained to them as follows: Regarding coffeebreaks and lunchtime in Respondent's unionized departments of its plant, the employees were "regimented" in that they took their 10-minute coffeebreak and lunch when a bell rang and they returned when the bell rang again. He testified he told the printing department salaried em- ployees: "We have a rather casual arrangement for the salaried employees. They walk out and walk back in, in fifteen or twenty minutes ...." As contrasted with the Respondent's, unionized "hourly" employees, who had exactly a half hour for lunch, testified Linka, the printing department salaried employees "probably averaged 40 minutes or 45 minutes [for lunch]." Linka, in testifying about his two meetings with the second-shift employees, stated: "I believe in one of these meetings I had asked these individuals why they didn't approach, or, if they had approached Local 17 [of the Lithographers Union] as it was primarily an offset union. My understanding of Local 24 [the Charging Union] was that it was a letter press union and they had not made provisions in their contract at that time, or any contracts that I had seen, for offset workers. They were pressmen, I felt that as long as they were going into a union, or were entertaining the thought, that they should go in with a stronger union. It was known by me that the salaries and scale paid by Local 17 was higher than Local 24.. . . I be- lieve that one of [the employees at the meeting] had told me that they had approached Local 17 and that they were turned down." Linka, when asked about his discussion with the second-shift employees regarding Local 24, the Charging Union, testified: "Well, I think everybody talked more or less freely as to their meetings with the business agent, or organizer, or whoever he was, and they told me what was discussed at these meetings, the scale that they were proposing, the rate card that had been given to them, and I think this was all subsequent to my asking them why they didn't go in Local 17 because I knew the weekly scale was higher." Linka, in testifying about the charge in the complaint which alleges he threatened employees that Respondent would subcontract work performed by them if they selected the Union, stated: "It has been the practice ever since the print shop started [16 years ago] that we operate by a budget and we pre-estimate 90 percent of the jobs outside of possibly the Systems work. If we find that we, having limited facilities on the larger presses, espe- cially, and in some cases on the smaller presses, if we can produce or purchase work outside for less money than we can produce it inside, we would get estimates and send it out. This has been the case ever since the beginning. The people in the shop were well aware of that because many times they would have started a job that would have been pulled and sent outside for various reasons.... in 1966, I would estimate [that the printing which was done on the outside was]'$35,000 or $40,000." Linka, When asked whether, in these various meetings with the second-shift employees, the subject was brought up of what might happen to the subcontracting of work after the election, testified: "I probably told the em- ployees that if the Union were to get into the plant, it would naturally affect our production costs and we would follow our same policies for the subcontracting out of work.... there was some talk [between myself and the employees at these various meetings] regarding the clos- ing down of the shop if the Union were successful, and I believe I told [them] at that time that we could never exist without a printing facility, whether it would be con- sidered a print shop or a duplication center, we would have to continue with it." When Linka was asked by the General Counsel, on cross-examination, whether he told the employees that the Company could stall all negotiations for a year, he de- nied this and answered: "I said that if the Union were successful in their attempt that they wouldn't just come in and give their demands to Lenkurt and say, `This is it,' and that would be the way it would be done. They would negotiate and I couldn't tell them whether they would be successful in their negotiations or not." Linka testified that he told the employees that if the negotiations didn't succeed in a reasonable period of time that the employees could always go out on strike. When he was asked if he told the employees that those women in Respondent's plant working under a union contract would not honor a picket line for just 12 people,'2 he testified: "Having been around the Company for many years, I was friendly with many of the women employees and also the fellows. A lot of these women are widows or divorcees who are raising families on their own. Now, my understanding is that under the Union if they don't work they don't get paid, and I was just telling them if they projected themselves into the same situation how long could they afford to be off work because of a picket line.... If these women are raising children and if they are the sole support of these children, they are not going to want to stand outside and not get paid for it." Linka admitted he told the employees that if the Union were selected and wages were raised, the Company might have to discontinue providing working smocks and uniforms because of increased operating costs. He also volunteered the information in his testimony that in- creased costs might require that a poorer quality of paper be used on the presses which the employees knew made operation of their machines more difficult. This was necessary, he explained, in order "to remain competi- tive." Linka denied telling employees Respondent would discontinue overtime during any negotiations that might be carried on between the Company and the Union. Linka testified that prior to his first meeting with the employees, at their request on September 27, he was im- portuned repeatedly by them to divulge what his wage recommendations would be to management. After Au- gust 29, the date the Union filed its representation peti- tion, he was instructed by the Company's labor relations manager, John Weiss, that he was not to discuss wages or any aspect of the various matters then pending on Sep- tember 27. When the Regional Director set October 14 as the date of the election, he was instructed by the Com- pany's labor relations official that he could discuss the election but also told what subjects and topics he could not discuss with the employees. Linka testified: "I was told that I couldn't threaten them, that I couldn't promise them any money, that I couldn't coerce them in any way." Linka stated he was shown some material by the Company's labor relations official that outlined ". . . what I couldn't do or what I had to avoid doing in my talks with these people." 12 This is an unmistakable reference to the 14-unit printing department employees. LENKURT ELECTRIC CO. 949 James K. Huchingson, who was a supervisor until Oc- tober 17, 1966, when he left Respondent's employ to ac- cept a job elsewhere, attended the various meetings described above. He corroborated all that Linka testified to and added the following: ". . . the tone of the conversa- tions that were held was more or less a period of having the employee think, an atmosphere of, `Think out the pros and cons. This is a decision you will have to make. You will have to make it yourself. Just make sure you think of all sides of the coin and look at it in the most logical manner you can. In other words, this is a period to ask questions and get the answers to anything you don't know about. In the end it is for you to decide, so just think it out and make sure your decision is right."' John B. Weiss, Respondent's labor relations manager for the past 8 years, testified that the Company's San Car- los plant has had collective-bargaining agreements with the Electricians Union since 1947 and the Machinists Union since 1952 and that of its 3,500 employees, ap- proximately 2,800 are members of these two unions. Furthermore, he testified, the Company has never had an election in its, plant, it has had no labor trouble, no strikes, lockouts, nor has an unfair labor practice charge ever been filed against the Respondent. On cross-examination, Weiss testified as follows when he was asked what his instructions were to Linka: "Well, basically, to make sure that [the employees] ... un- derstood what they had at Lenkurt, and to suggest to them that they should very carefully check with the peo- ple who were making suggestions and promises to them as to what was being offered by the Union; and I sug- gested to him that he suggest in turn to them that they should not just accept these words but should attempt to find out, if possible, from other union people within that union, if they could, just what the conditions were in other plants so that they would have some active com- parison. That he was to point out to them that they were making a big decision here and that it was wholly their decision to make. We could live with the Union or without the Union. We have been doing it for many years with other unions. One more wouldn't make that much difference. However, that he should check with these people and make sure that they were aware of the choice that they were making and to try honestly to answer questions that they might pose insofar as he could legally do so and if he had any questions he should bring them up to us.... Basically, it was to make sure that they knew what they were doing; it was their choice to make; but that they should not act without having full information because Mr. ^Linka had been telling us and Mr. Acton [Linka's superior] had been telling us of all sorts of promises that, were being made to these people and this is why we final(^y decided and agreed to let them talk to the people because we felt that there was misinformation being passed out here. The people had the impression that all they had to do was to join the Union and the entire package, as presented in the [Union's] little green booklet that they had been given, [Resp. Exh. 1] was going to be given to the people automatically. We tried to impress on them that no matter what happened there would be negotiations on this and the negotiations would determine what their contract would be ultimately. It could not be based on promises but it would have to be based on negotiations." Credibility' 3 The complaint alleges that the Respondent Company, during the period from October 4 to October 10, 1966, inclusive, interrogated and threatened its employees. The witnesses of the General Counsel and those of Respond- ent are diametrically opposed in their respective ver- sions as to what occurred with respect to these alleged 8(a)(1) violations. The General Counsel's witnesses are contradicted on all the salient issues by the witnesses for the Respondent. Their stories are mutually exclusive. This requires an analysis of their conflicting testimony, the resolutions of pure questions of fact, as well as the resolution of their credibility. It might be well, therefore, in view of the General Counsel's and Respondent's witnesses' versions being directly adverse to one another, to consider first this matter of credibility in some detail. After observing the witnesses, analyzing the record and inferences to be drawn therefrom, and reconciling, where possible, the conflicting evidence, the Trial Examiner has made certain credibility findings, where necessary, with respect to the substantive testimony of the witnesses. In doing so, recourse will be made to the consistency of certain un- disputed and demonstrable facts in this case. Conclusions have been reached also which are based on observations of the witnesses with respect to the accu- racy of their memories, their comprehension, and their general demeanor on the stand in answering the questions put to them. However, it is not meant to imply that the trier of these facts accepts as credible everything that was said by these various witnesses. It suffices to say, in the words of that eminent jurist, Learned Hand, that "[i]t is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." 14 In crediting some witnesses and discrediting others, the Trial Examiner has given weight to certain evidence as against other evidence, drawn inferences from circum- stantial and conflicting evidence, and come to certain conclusions requiring the detection and appraisal of vari- ous "potent imponderables permeating this entire record."15 One of these "potent imponderables" is the demeanor of witnesses in testifying, particularly where the trier of facts' findings rests on the evaluation of the credibility of oral testimony. The Board has recognized that the "demeanor of witnesses is a factor of con- sequence in resolving issues of credibility."16 Credibility findings rest to varying degrees upon the evaluation placed by the trier of the facts upon the demeanor of wit- 13 See N.L.R.B. v. Lewisburg Chair and Furniture Company, 230 F 2d 155, 156-157 (C.A. 3); N.L.R B. v Local 420, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL [J. J. White, Inc.], 239 F.2d 327, 328 (C A. 3). 14 N L.R.B. v Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2), reversed on other grounds , 340 U.S 474 15 International Association of Machinists, Tool and Die Makers Lodge No 35 [Serrick Corp ] v. N.L R.B , 311 U.S. 72, 79. is Hadley Manufacturing Corporation, 108 NLRB 1641, 1643; Roxboro Cotton Mills, 97 NLRB 1359, 1368, where the Board said:". . the Trial Examiner made no reference to the demeanor of either wit- ness-as to which it is our policy to attach great weight." 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nesses. This type of evidence being comprised of elusive intangibles and "potent imponderables" leaves the trier of the facts with the difficult task of conveying his impres- sions of credibility. Judge Learned Hand has observed this difficulty and called such findings as "[findings] based on that part of the evidence which the printed words do not preserve."17 [C]redibility findings may rest entirely upon evidence through observation which words do not, and could not, either preserve or describe."18 (Emphasis sup- plied.) "[Demeanor evidence] may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he de- nies." 19 In N.LR.B. v. Dixie Gas, Inc., 323 F. d 433, 435, 437 (C.A. 5), the court stated: "The Board accepted the Ex- aminer's credibility findings. The Supreme Court has recently reiterated the point that the Trial Examiner `sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records.' N.L.R.B. v. Walton Manufacturing Co., 1962, 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829. . . . Thus, in N.L.R.B. v. Pittsburgh S.S. Co., 1951, 337 U.S. 656, 69 S.Ct. 1283, 93 L.Ed. 1602, the Supreme Court upheld the Board against the contention that it showed bias to credit all of the general counsel's witnesses and to discredit all of the respondent's witnesses, but the Court excepted from the general rule of deference to credibility findings credited testimony which `carries its own death wound' and dis- credited testimony which `carries its own irrefutable truth."' In determining credibility in this proceeding, the fol- lowing has been considered inter alia : the demeanor and conduct of witnesses; their candor or lack thereof; their apparent fairness, bias, or prejudice; their interest or lack thereof; their ability to know, comprehend, and un- derstand the matters about which they have testified; whether they have been contradicted or otherwise im- peached; the interrelationship of the testimony of wit- nesses and the written evidence presented; and the con- sistency and inherent probability and plausibility of the testimony and the probative diminution of answers elicited by leading questions asked of witnesses by counsel.2o Despite uncontr.dicted direct testimony to the contra- ry, human quantities such as motive may be shown cir- cumstantially where the circumstances outweigh in credi- bility the direct statrement.21 Of course, in the type of issues disputed in this proceeding, where the witnesses of the General Counsel and Respondent are in sharp conflict and diametrically opposed in their respective versions as to what actually occurred, the process of hearing can produce only a belief concerning what the facts are, rather than a disclosure of the facts themselves. Impeccable witnesses and perfect testimony are a rarity. Witnesses are frequently fouled by the air of partisanship making impartiality a rare attribute. Therefore, the trier of the facts must be content with a be- lief concerning the facts rather than a knowledge of what are the true facts. Moreover, unconscious and uninten- tional inconsistencies , mistakes , and confusion un- derstandably creep into a record when it is considered that the witness testified from memory as to events and conversations that may have taken place under emotional circumstances and long before the hearing was held and their testimony given. If, in order for the trier of the facts to credit a witness, his testimony must be found to be lucid, unambiguous, and consistent in all details, there would be few, if any in- stances, where witnesses could meet such exacting and unrealistic requisites. This would result in an inability to "make specific credibility findings as to testimonial evidence necessary to support material findings of fact"; one of the most vital functions of a Trial Examiner.22 Therefore, to point out inconsistencies in the testimony of a witness credited by the trier of the facts adds nothing and may amount to petty carping for "[I]t is no reason for refusing to accept everything a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all."23 Accordingly, the one who hears and sees the witnesses testify must, where the conflicting versions are diametri- cally opposed, often necessarily depend upon subtle in- terpretations, delicate nuances, and indefinable impres- sions which the cold record does not convey. To this must be added one cogent caveat: If, after analyzing the record and evaluating the witnesses' demeanor, the evidence is in equipoise, in such a situation the ultimate finding must be adverse to the party who has the burden of proof. It would appear that in such a situation, the com- plaint must be dismissed since the General Counsel has not proved the allegations of his complaint by a preponder- ance of evidence . Such a probability is not an academic proposition as evidenced by the frequency with which ju- ries in courts of law are unable to arrive at a verdict. ".. . the test is not satisfied by evidence . . . which gives equal support to inconsistent inferences."24 Of course, the record may reveal, exclusive of demeanor testimony, where the truth lies. It is only where, at the end of the trier of facts' deliberations and analysis of the entire record, his resolutions of credibility still remain balanced in doubt that recourse must be had to the witnesses' demeanor. The difficulties encountered in describing, by written word, the impressions derived from observing a witness testify explain why a conclusion logical to one mind may N L.R B. v. Universal Camera Corporation, 190 F 2d 429, 430, 431-17 (CA 2) 8 Roadway Express, Inc., 108 NLRB 874,975 is Dyer v MacDougall, 201 F 2d 265, 269 (C A 2) This was quoted in N L R B. v. Howell Chevrolet Company, 204 F.2d 79, 86 (C A 9), affd. 346 U.S. 482 Cf N.L.R B v. Dimon Coil Company, Inc , 201 F.2d 484,487 (CA 2) 20 See Liberty Coach Company, Inc., 128 NLRB 160 21 1 Wigmore, Evidence § 25 (3d ed. 1940). Cf. N L R B. v Howell Chevrolet Company, 204 F 2d 79, 86 (C.A 9), affd 346 U S 482, quot- ing Judge Learned Hand in Dyer v. MacDougall, 201 F 2d 265, 269 (C A 2). See also N L R B v Dimon Coil Company, Inc., 201 F 2d 484, 487 (C A. 2). 22 Cf Casa Grande Cotton Oil Mill, 110 NLRB 1834, 1836 21 Fn. 14, supra 24 Eastern Coal Corporation v N L.R.B., 176 F 2d 131, 135, 136 (C.A 4). LENKURT ELECTRIC CO. 951 be the opposite of a conclusion in another 's mind, or be totally unexplainable to a third mind.25 It serves no useful purpose and only prolongs unduly a decision to describe a witness as having a furtive look, a nervous twitch, becoming flushed in the face or perspir- ing freely . Such indicia are better left in the mind of the trier of the facts than detailed in the written decision. Then too, in evaluating a witness ' testimony as credible or incredible , which is based exclusively on demeanor evidence, the trier of the facts must necessarily adopt an empirical approach as he is not dealing with absolutes or generic matters . Therefore , human factors , emotions, and the "intangible imponderables " present at every hearing militate against the substitution of another 's judgment as to where the truth lies. Judge Medina discussed the indicia involved in judging credibility when he commented as follows:26 "By what yardstick and in accordance with what rules of law are you to judge the credibility of the witnesses ... ? This judging of testimony is very like what goes on in real life. . You ask yourself if they know what they are talking about. You watch them on the stand as they testify and note their demeanor. You decide how their testimony strikes you." By this discussion of the evaluation placed upon the demeanor of a witness in testifying , it is not intended to convey the impression that consideration was given ex- clusively to this type of evidence in this proceeding in determining credibility. Concomitant consideration has been given equally to the surrounding circumstances, and the consistency or inconsistency of individual witnesses' testimony with uncontroverted evidence and demonstra- ble facts in determining which version should be credited. Moreover , in crediting one version as against another, the trier of the facts frequently derives considerable aid in comparing the witness ' testimony on direct examination with what he testified to on his cross-examination or stated in his affidavit . "A would-be deceiver weaves a tangled web ... and cross-examination is usually an ef- fective device to enmesh the perpetrator of the em- bellished lie."27 It must be remembered that witnesses often innocently give contradictory versions of events because they are emotionally involved. Reference has been made above to the question of bur- den of proof and its being inextricably interwoven with resolutions of credibility , a fact overlooked by those criti- cal of the use of demeanor evidence . 28 It might be well therefore , in arriving at the ultimate conclusions in this case, to consider not only the burden and quantum of proof necessary to make a finding of an unfair labor prac- tice but also the fact that necessary recourse must be made to demeanor evidence when the testimony is in equipoise.29 The Supreme Court had held30 before the enactment of the Labor Management Relations Act of 1947 (67 Stat. 136) that the evidence necessary to make a finding of an unfair labor practice must be "substantial ." Substantial evidence is such evidence as affords a substantial basis of fact from which the fact in issue can be reasonably infer- red.31 Substantial evidence must be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . Substantial evidence must have rational probative force; it must carry conviction ; it must be more than a scintilla , and must do more than create a suspicion of the existence of the fact to be established. And the test is not satisfied by evidence which gives equal support to inconsistent inferences . 32 This precept particu- larly has application to the case at bar with respect to the alleged violations of Section 8(a)(1), in those instances, where the unequivocal assertions of the General Coun- sel's witnesses are categorically denied by the witnesses for the Respondent. In N.L.R.B. v. Stafford Operating Company, the court said: 33 The insertion of the word "substantial" in the Act by the amendment of 1947 did not, therefore , enlarge its meaning in that respect , but the insertion of the words "on the record considered as a whole" and the historical background of the Act and the amendment do have significance .... * * * * * When the mental process actuating a person in the performance of an act is the fact for determination, oftentimes circumstantial evidence is the only type available.... whether the facts and circumstances constituting such evidence be of such weight as to be substantial depends upon the nature of the facts shown , the consistency of those facts and circum- stances with each other , their consistency with the truth of the ultimate fact, and their inconsistency with a reasonable inference of the truth of the con- verse of the fact sought to be shown , when viewed in the light of the entire record . And these facts may not be viewed "in isolation." Universal Camera Corp. v. N.L.R.B ., supra. "Granting that an inference may be drawn from the mere fact of participation [in union activities] followed by [evidence] that such participation was its cause , the inference disappears when a reasona- ble explanation is presented [for the alleged unlawful act]." * * * * * "In each case such membership may have been the cause, for the union was not welcomed by the [employer]. If no other reason is apparent, union membership may logically be inferred. Even though the [employer] disavows it under oath, if he can as- sign no other credible motive or cause, he need not be believed . But it remains true that the [employer] knows the real cause ... it is a fact to which he may swear. If he says it was not union membership or ac- tivity , but something else which in fact existed as a ground , his oath cannot be disregarded because of 25 Retail Store Employees Union , Local 400 , affiliated with Retail Clerks International Association [Amalgamated Clothing Wkrs. of America ] v. N.L.R . B , 360 F 2d 494 (C.A.D.C.). 36 Consolidated Edison Co . of New York , Inc v N L R B., 305 U.S 197,229. 31 N L R B. v Columbian Enameling & Stamping Co., Inc , 306 U S. 26 U.S v Foster, 9 F R D 367 , 388-390 (S D N.Y.). 292,299 27 Santa Clara Lemon Association , 112 NLRB 93,104. 32 Eastern Coal Corporation v N L.R B , 176 F 2d 131 , 135, 136 28 Liberty Scrap Materials , Inc., et al., 152 NLRB 480, 484. (C A 4). 29 See supra. 33 206 F.2d 19, 22,23 (C A 8) 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suspicion that he may be lying. There must be im- peachment of him, or substantial contradiction, or if circumstances raise doubts, they must be incon- sistent with the positive sworn evidence on the exact point." The evidence "must do more than create a suspicion of the existence of the fact to be established. '134 Moreover, the burden is upon the General Counsel to prove affirma- tively and by substantial evidence that the acts alleged in the complaint were illegally motivated.35 Moreover, the Board and the courts, in other cases, where it had been found that the respondent had com- mitted unfair labor practices, considered a respondent's union animus. Evenhanded justice would require that, where there is no substantial evidence produced by the General Counsel to show such antiunion bias, that this factor should be considered in evaluating whether the Respondent in this proceeding has committed any unfair labor practices. There is no substantial evidence, if any evidence at all, in the record of this case to support such a conclusion. The Respondent Company's labor record is faultless: 2,800 of its 3,500 employees are union mem- bers; it has never had an election in the plant; no strikes; and never had an unfair labor practice charge filed against it. Linka, who the General Counsel alleges committed all the unfair labor practices, belonged to a union for 3 years and, as an indication of his lack of union bias, he naively suggested to some of the employees which union he be- lieved was preferable for them at the risk of being con- fronted with an 8(a)(2) charge. 36 Resume and Analyses of Testimony In determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by the Act.37 To determine whether Section 8(a)(1) has been violated, consideration must be giver) to Respondent's entire course of conduct, as it is not required that each item of Respondent's actions be considered separately and apart from all others, but con- sideration must be given to all such conduct as a whole with a view to drawing inferences reasonably justified by their cumulative probative effect. The complaint, in paragraph VI, alleges that "... on or about October 4, 6, and 10, 1966, Respondent, by Linka threatened employees with changes in their condi- tions of employment in the event the Union was selected as their collective bargaining representative; ... that they would be discharged" if they selected the Union; ".. . they would not receive their regular annual wage in- creases" and if the Union came into the plant, they would lose their ",overtime work and sick leave pay" and that Respondent would subcontract the printing work. Also the complaint alleges in subparagraph 6(d) that Respond- ent interrogated employees regarding their "activities" and "sympathies" on behalf of the Union, and in subpara- graph (g) that Linka interrogated "employees ... at a restaurant in San Mateo, California." 34 Universal Camera Corporation v N L.R B , 340 U S 474, 477. 35 See Martel Mills Corporation v N L R B ., 114 F 2d 624 (C.A 4), N L R.B. v Entwistle Mfg Co, 120 F 2d 532 (C.A 4) 19 See fn 43 A distillation of Brown's, Horsell's, and Russell's testimony with respect to its relevancy to Section 8(a)(1) of the Act is summarized below. Their testimony has been quoted in haec verba copiously because the General Counsel bases his entire case on the testimony of these three employees as to what Linka told them. In the in- terests of accuracy, those three witnesses' testimony has been quoted in extenso, along with Linka's, to avoid the ambiguities created by paraphrasing. The fact that some of the testimony of Horsell, a rebuttal witness, has been footnoted should not be construed to detract from the im- port of his testimony. Nor should any invidious com- parison be drawn as this format was followed in the in- terests of clarity and continuity. Brown, who worked on the first shift, testified that, when she asked Linka about a pay raise, he told her in June 1966, 3 months before organizational activity began, that he had recommended a wage increase for her, subject to company approval; that on September 27, 1966, his recommended wage increase for her could not be ap- proved until the results of the union election were an- nounced; that Linka asked her on September 26, 1966, after the employees asked to see him in his office, why she was interested in the Union, if she understood what she was doing, was she sure she selected the right union to represent her, and could the Union do more for her than the Company. He also told her, Brown testified, that she had a "real bad" absentee record and if the Union became the employees' collective-bargaining representa- tive, the Company would not pay her for the days she was absent from work, as it did now, pointing out that this was the system which prevailed in other departments of Respondent's plant that were unionized. At the meetings with Linka, Brown testified that he told her she was not qualified to run the various machines in the printing department (which she admitted) as she would be required to under a union shop and this might jeopardize her security of tenure with the Company because of the contract provisions that might be entered into between the Company and Union. At another point, Brown testified that Linka asked her if she thought she was "capable of belonging to a union." Also, she testified, Linka told her that, if the union wage scale would be higher than what they now receive, this might increase operating costs and thus result in the use of cheaper paper stock on the printing machines and also that the smocks presently furnished by the Company might be discon- tinued. Also, Brown testified, Linka told her that there might not be overtime, to which she replied that this did not "bother" her as she "never liked to work on Satur- days." Linka also said, testified Brown, "that if we did go union and if he found that he could send the work out and get it done cheaper on the outside, why, he would do that and maybe that it would come to the place where they would just do away with the print shop." On Brown's cross-examination, it was elicited from her that Linka advised her that the quality of her work was such that it might not meet requisite work standards if the Union came into the printing department, whereas the Company did not presently require her to know how to operate all the various machines in the printing depart- ment. She also admitted that her relationship with Linka 37 Time-O-Matic, Inc. v. N.L.R B., 264 F 2d 96,99 (C A 7), N.L R B v Illinois Tool Works, 153 F 2d 811, 81 (C A 7); Russell-Newman Mfg Co, Inc., 153 NLRB 1312, 1315; Neco Electrical Products Corporation, 124 NLRB 491,482 LENKURT ELECTRIC CO. was informal and on a friendly basis both during and after working hours. The general import of her testimony reveals that at these various meetings the employees had with Linka, they were all on a first- name basis with him, that the atmosphere was, for the most part,311 friendly and cordial, and the tone of the various meetings was advisory and not argumentative or authoritarian. Horsell testified Linka told them that increased operat- ing costs might necessitate using lower grade paper and not supplying smocks and work clothes. Horsell also testified Linka told them, "I can't tell you whether to join the Union or not" and that it was unlawful for him to promise raises nor could he assure them they would earn more or less if the Union came in, but he told them to take a day off and find out what they could about the Charging Union; compare it with other unions and then talk to members of the Charging Union before making a decision as to how they would vote. Horsell testified that he fol- lowed Linka' s suggestion.39 Horsell also testified that after Brown and Birtwell left the October 3 meeting, and he and Linka were alone, Linka told him that the Union might be better for him but not for the two women, Brown and Birtwell, because of their lack of skills, they would be unable to operate all the machines which might be required of them under a union- shop contract, and this, in turn, could affect their ability to hold on to their job S.40 Horsell testified that Linka told Brown, Birtwell, and himself, in the event of a strike or increased operating costs, it might become necessary, in order to remain com- petitive, to have outside shops do more of the printing than what such shops had done in the past as the Com- pany is always "interested in saving money." Horsell stated that it was well known in the printing department that the Company frequently has its printing done by out- side shops. It is uncontradicted that in 1965, Respondent had $35,000 to $40,000 worth of printing done by outside shops. Horsell also testified that he stated in his Board af- fidavit that something was mentioned about whether there "would be overtime with a union, but [he did not] remember what." see lnfra.41 Cross-examination revealed that Horsell was the union observer at the election, an ardent proponent of the 38 Except at one meeting where Brown and Linka argued 31 The transcript reads as follows. "[Lmka] said to Wanda Brown, `Do you really think you are capable of doing Art's work? You haven't got a prayer.' Wanda Brown responded, `No, I don't think I can, but under the union rules I wouldn't have to I can stay at my press 'Then I believe Mr Linka responded, `No, if you are all getting the same scale, you would be expected to run all three presses.' Then Ken commented, `Guys like Nishinaka might not have a job here when they come back' Ken proceeded to talk to us about our skills He told us that if the union came in we might have to go to lower grade papers Instead of running 60-pound book, we might have to go to 20-pound or even as low as newsprint Then Ken went on to say that he would have to do away with my uniform and the girls' smocks He would have to cut costs somewhere . There was mention made of a 35-hour week He said, `You know, this thing can go on and on in negotiations and eventually this thing will run out if it is not signed 90 Horsell testified "The girls started to leave and so did I and Ken said, `Wait a minute, Art. -I want to see you ' So I sat down again and the girls left. Then he said, `Art, the Union might be better for you but let the girls go You know they can't make it in the Union.' . . he said, `Art, you know I have been working on a salary survey now for months I have just gotten it now and I can't do a thing until after this Union election. It is just dead."' 41 Horse]l testified as follows "At the second meeting, and I believe it was right after we talked about the negotiations , that this took place. . . 953 Union, and that it was he who turned over to the union or- ganizer the letters sent by the Company to the unit emplo- yees.42 It is reasonable to assume that it was he who con- tacted the Union with a view to having the printing de- partment unionized. Donald Russell, who worked on the second shift and attended three meetings between the end of September and October, testified that Linka told the second-shift employees that the Charging Union (Local 24) was not orientated to represent the type of printers they were and that they would be well advised to investigate Local 17 of the Lithographers Union, to which Linka belonged for 3 years.43 Russell testified Linka told them "... he had put in a request for raises. ... and he didn't know whether it would go through or not, but even if it did the raises would be frozen until after the Union election was over," and that Linka ". . . told us that they didn't necessarily need the print shop there and if the expenses got too high they could do away with the print shop and send the print- ing out." On cross-examination, he amplified and clarified this statement by testifying that Linka said if the printing became too expensive to do in Respondent's shop, it might be necessary to have it done on the outside. Russell testified that after the October 11 luncheon meeting of all the employees, Linka asked him, ". . . how I thought the voting would turn out.... I told him that I didn't have any comment on it." On cross-examination, Russel admitted that Linka stressed they should consider it carefully and that it was up to them to make up their own minds as to how they would vote. Resolutions of Credibility Brown did not favorably impress the trier of these facts. Her testimony was disjointed, incoherent in many critical aspects, and lacked continuity. She was inarticu- late, ineffective, and not an arresting witness. On cross- examination, when the questions were not to her liking, Brown took refuge in obscure replies. It seems that she became disgruntled and hostile toward Linka at the Oc- tober 3 meeting when she believed, for some unexplained reason, that he was favoring others over her This an- He said, `If the Union goes in, this will probably curtail overtime because we have to cut costs somewhere and you couldn't expect any more over- time It will have to be done away with probably We have to cut costs somewhere. Something has got to give. You can't have your product going up and up and everthing else at the same time We have a budget to work with Of course, I can always send these things out to non-union shops in the event of a strike or in the event the costs get too high. but a lot of these jobs we don't need right now "' 42 Horsell testified on cross-examination that his first contact with the Charging Union was sometime in the first 2 weeks of August 1966 He later attended two meetings of the employees with Arnold Rowell, busi- ness agent of the Union, and was the Union's observer at the October 14 election The evening before the election, the Union held a dinner meeting at a restaurant which was attended by Brown, Horsell, and other printing department employees. At that time, the 35-hour week and money matters were considered and Horsell discussed and turned over to Rowell letters (Appendix A) he had received from the Company regarding the election. 43 Linka's version reads as follows ". . I had asked these individuals why they didn't approach, or if they had approached Local 17 [of the Lithographers Union] as it was primarily an offset union . Local 24 [Charging Union] was ... a letter press union and they had not made pro"isions in their contract for offset workers They were pressmen I [thought] as long as they were going into a union, or were entertaining the thought, that they should go in with a stronger union It was known by me that the salaries and scale paid by Local 17 was higher than Local 24 " 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tagonism toward him was evidenced by her refusing to examine his reclassification report44 when he offered to show it to her (with the exception of the proposed salary increases), although she testified she had kept after Linka for more money. She testified with considerable vehemence that she did not "look at the book or touch the book." Brown attended the meeting on the morning of October 11 only when prevailed upon to do so by Linka. When Linka apologized for the heated discussion at the October 7 meeting, Brown refused to accept his apology stating "it was to [sic] late for an apology" and that she "was still hurt very deeply. " Also significant is Brown's testimony that she jotted down in a notebook the details of what transpired at all these various meetings with Linka. It is reasonable to assume that this was in preparation for presentation at anticipated litigation. Based upon observation of Brown while testifying, as well as her manifested dislike of Linka, and after analyz- ing the record and the inferences to be drawn therefrom, it is believed her testimony is untrustworthy and can be characterized as that of a malcontent which is colored and distorted by dissatisfaction with, and resentment of, Lin- ka. For these reasons her testimony is not credited except to the extent that it is in agreement with the credited testimony. Russell's testimony that Linka told the second-shift employees that if the printing department's "expenses got too high they could do away with the print shop and send the printing out" is not credited, as on cross-examination, he hedged and stated Linka said: "It might be necessary to have it done on the outside." This prophetic possibility certainly does not attain the stature of an unfair labor practice within the meaning of Section 8(a)(1) of the Act. Not crediting this version of Russell as to what Linka said is not to indicate that Russell is not believed to be a credible witness; rather, it is believed that Russell did not fully understand what Linka said at the meetings. It is felt that he was honestly mistaken and confused as to what Linka said at these two meetings when it is considered that he was testifying with respect to technical and precise legal terminology bordering on semantics. It is not believed Russell lied but rather that he was prey to the fallibility of the human memory, in light of the fact that he was testifying to events that occurred 7 months prior and often the most intelligent witnesses will see, hear, and re- call inaccurately, or perhaps hear only what they want to hear. After forgetting much of what he sees or hears within a matter of days, or perhaps weeks, a witness typi- cally appears at a hearing many months later, retaining only his most emotional memories. Horsell, the last of three witnesses produced by the General Counsel on "rebuttal," testified Linka told him that in the event of a strike or increased operating costs, it might become necessary, in order to remain competi- tive, to have outside shops do more of the printing than is presently subcontracted. Horsell's hesitant and faltering manner in testifying on cross-examination, contrasted with his prompt and positive testimony on direct ex- amination, militated against his credibility. 44 G.C Exh 2 4s Interstate Circuit v. U.S, 306 U.S. 208, 225, 226; N L R.B. v Sam Wallick and Sam K. Schwalm, dlbla Wallick and Schwalm Company, et al., 198 F.2d 477,483 (C.A. 3); Concord Supplies & Equipment Corp., 110 NLRB 1873, 1879. 46 Paudler v. Paudler, et al, 185 F 2d 901, 903 (C A. 5), cert denied 341 U.S 920. 47 Horsell testified that Lmka told Brown and him. "I can't tell you A cogent reason for crediting Linka's version of all these various meetings with the first- and second-shift employees, is the General Counsel's failure to call other witnesses, namely; Eleanor Birtwell, Corbett, Zaplacin- ski, and Cox, who were present during various meetings at which the incidents referred to transpired. The failure of the General Counsel to produce these four important witnesses at the hearing to corroborate Brown's, Hor- sell's, and Russell's testimony, renders their versions of what occurred dubious, and also warrants drawing an in- ference that if produced, their testimony would not have been favorable to the General Counsel.45 Their absence "not only strengthens the probative force" of Linka's ver- sion which was corroborated by Supervisor Huchingson, "but of itself is clothed with a certain probative force."46 Linka appeared to be a candid, forthright, and sincere witness. It is interesting to note that Horsell, in evaluating him, testified, "Ken is honest." Then too, in believing Linka, the fact that he was no longer in Respondent's em- ploy is a practical consideration in evaluating his credi- bility. As such, he was no longer beholden to Respondent and, coupled with the normal workings of human nature, has led the trier of these facts to place considerable cre- dence upon his testimony. Then too, all of the General Counsel's witnesses agreed that Linka repeatedly stressed that they should ascertain all the facts, pro and con, carefully consider them, make up their own minds, and then vote accordingly.47 Moreover, it appears Linka has no union animus: he was a former union member; Respondent's plant em- ployed 2,800 union workers; Ray Saavedra, whom Linka hired "just prior" to August 29, 1966, was known by Linka to be a member of the Charging Union at the time he hired him; and the employees in the plant where Linka is presently employed are represented by five different unions. Linka's denial that he made various alleged "threats" and that he "interrogated" Brown and Horsell is credited for the following reason .48 Linka had worked for Respond- ent over 15 years. Having been a union member himself and worked in a plant that employed 2,800 union mem- bers, it would seem contrary to Linka's demonstrated commonsense and industrial background to disregard his employer's labor relations official's admonishment not to interrogate, threaten, or make promises to the employees and compromise his employer by indulging in conduct and intimidating statements, to which the General Coun- sel's witnesses testified they were subjected. Discussion and Conclusions The allegation in the complaint that Respondent "threatened employees that they would not receive their regular annual increases" in the event they selected the Union is not substantiated by the evidence. It is difficult to perceive the General Counsel's theory that "by failing and deliberately withholding the increases [the employ- ees] were told they were entitled to but couldn't get, that that also violated Section 8(a)(1)." This is not only a mis- whether to join the Union or not," and that it was unlawful for him to promise them raises or whether they would make more or less under a union contract Horsell admitted Linka told him that although he might be better off in a union, he did not think that Brown would be for the reasons explicated under the section entitled "The Testimony," supra, andfn 39. 48 Russell being asked by Linka how he thought the union election would come out and Russell replying that he had no comment, is an iso- lated incident and de mmimus See supra LENKURT ELECTRIC CO. understanding of the facts but also a misconception of the applicable law, as discussed in a later section of this Deci- sion. The record clearly reveals that Respondent's annual review system did not include automatic wage increases. The only thing automatic was the annual review of an em- ployee's work record. A wage increase might result from a favorable evaluation but this is left to the discretion of Respondent; herein lies General Counsel's error. With respect to the General Counsel's contention that the proposed employees' reclassifications were intended as an unlawful inducement to influence their vote -it is without merit as this study was commenced in March or April, some 5 months before the Union began its or- ganizational campaign. Moreover, the unit employees not only were aware of this before the Union came on the scene, but Linka's testimony is credited that he told them he could not discuss wage increases with them during the period preceding the election.49 Furthermore, it is uncon- tradicted that not only did Brown and Horsell refuse to look at Linka's recommendation report, but before he of- fered to show it to them he first removed the wage schedules.50 Various incidents show Horsell's bias so as to reflect on his credibility: his cautioning of his fellow employees "not to look at the book but get a company representative to show you the book"; his admission that he discussed with the union organizer the question whether it was un- lawful for the Company to increase wages during the pen- dency of the election; his presence during the election as a union observer; and his turning over to the Union let- ters which Respondent sent to the employees. In the light of all this, it is not too unreasonable to conjecture whether Horsell intended to maneuver the company officials into a position where they would unwittingly disclose the sal- ary revisions. Evidently, although it is not clear, the allegation in the complaint that Respondent threatened employees with discharge is based on testimony that Linka told them, if the Union won the election, the Company's practice of shifting employees to other jobs in the plant when work was slack might have to be abandoned if the printing de- partment operated under a union contract. Linka ex- plained to them that, both as a former union member for 3 years and from current practices in union printing shops, unions were averse to their members being tem- porarily transferred to jobs in other parts of the plant when work in their own unit was slack. This is undoubt- edly true as neither the Charging Union nor the General Counsel refuted or questioned the validity of Linka's ex- planation on cross-examination. Moreover, it was not an unfair labor practice for Linka to point this out as possible disadvantage which the employees should consider in deciding how to vote in the election. The same observa- tions are applicable to Linka's comments to Brown that under a union contract she might be required to know how to operate all the presses in the printing department, and, since she presently was not qualified to do so, it might affect the security of her tenure with the Company. These were all fair comments and did not exceed the bounds of permissible electioneering. 49 The wage reclassifications matter arose during the election campaign as a result of Brown's and Horsell's importuning Linka to tell them whether they were going to get a pay raise 50 See G.C. Exhs. 2 and 3. 955 It is uncontradicted that, since the establishment of Respondent's printing department approximately 15 years ago, the Company always had subcontracted apart of its printing because of too heavy a workload in its shop or for other economic reasons. Linka's testimony is credited that he told the employees that, in the event they selected the Union, the printing department would con- tinue to operate as the Company could not exist without it, particularly that printing tied in with Respondent's na- tional defense contracts which required those employees working on this type of printing to obtain security clearance. Assuming, arguendo, that what Linka told the employees could conceivably be construed to be a threat of an adverse change in the event the Union prevailed, it is at most a prediction of the possible impact and effect of the Union's wage demands upon Respondent's costs and not a threat that Respondent would use its economic power to make its prophecy come true.51 There is no threat present in these discussions to indicate that Respondent would employ the long existing practice of subcontracting as a retaliatory measure. Per contra, Linka explained that the present policy of subcontracting uneconomic and overflow printing would remain unchanged. The alleged threats of loss of overtime and sick leave in the event the Union was selected by the employees are not substantiated by the record. Brown's testimony is in- conclusive on this52 and Horsell's version was that Linka, in speaking as to what might happen if the Union won, predicted that increased wage costs might eventuate in curtailing or eliminating overtime. Moreover, Horsell's afterthought version, testified to for the first time at the hearing, is not credited as overtime had been virtually eliminated when the second shift was started in 1965. Also casting doubt on Horsell's veracity is his prior sworn affidavit given to a Board investigator in which he inconsistently stated: "Something was said [by Linka] whether there would be overtime with a union, but I don't remember what."53 Regarding sick leave, sick pay, and possible changed working conditions (coffeebreaks -lunchtime), Linka re- minded Brown and Horsell how these matters were presently handled with respect to the salaried printing de- partment employees as compared with those employees working in the unionized departments of Respondent's plant. Nor was it an unfair labor practice for Linka to have told the employees that based on his experience when he was a union member for 3 years during negotia- tions there was no overtime, because unions did not want employers to build up their inventories in anticipation of a strike. Though such comparisons were invidious, there is no evidence to refute their factual validity nor any authority cited to indicate they were not fair comments in the context of an election campaign. The evidence reveals that statements were made and events occurred against an emotionally charged background of an impending election. Such a background often lends itself to rancor and animosity but not neces- sarily to the commission of unfair labor practices. The campaign immediately preceding a Board elec- tion is usually such [a hard and bitter conflict that] 51 Chicopee Manufacturing-Corporation, 107 NLRB 106. 52 See supra. 53 See supra. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... the Act provides both affirmative rights and prohibited acts governing the conduct of both management and union. Each is accorded the right of persuasion and denied the use of coercion. But it would be unrealistic indeed to expect management to use words of conviction in an effort to persuade an employee to vote against unionization without the presence of "anitunion animus." In the matter of the election the management is, of course, antiunion. The union is equally anticompany. It is necessarily so. And hostility toward each other in such regard is not an unfair labor practice.54 In this proceeding, however, the bare recital of the facts is sufficient to show no restraint, coercion, or inter- ference within the meaning of Section 7 nor substantial evidence of unfair labor practices- encompassed by Sec- tion 8(a)(1). Recourse was had and reliance placed upon accompanying circumstances, necessitating the detailed discussion which has been made of the facts in this case in extenso and in haec verba. Consideration has been given also to all the attendant circumstances in the con- text of this overall perspective here presented. 55 These circumstances have been considered composite- ly and inferences drawn which are reasonably justified by their cumulative, probative effects. "Events obscure, am- biguous, or even meaningless when viewed in isolation may, like the component parts of an equation, become clear, definitive, and informative when considered in rela- tion to other action. Conduct, like language, takes its meaning from the circumstances in which it occurs."56 "The fact that there is evidence considered, of and by it- self, to support an administrative decision is not sufficient where there is opposing evidence so substantial in character as to detract from its weight and render it less than substantial on the record as a whole."57 With respect to the alleged violations of Section 8(a)(1), the test is whether the conduct charged was reasonably calculated to interfere with the employees' free choice as to whether they desired to be represented by the Union for the purpose of collective-bargaining.58 Interference, restraint, or coercion is not measured by the employer's intent or the effectiveness of his action, but rather by whether the conduct is reasonably calculated, or tends to interfere with the free exercise of employees' rights under the Act.59 The language and legislative history of Section 8(a)(1) shows that Congress intended in banning "interference" to proscribe any employer activity which would tend to limit employees in the exercise of their statutory rights. The key to interpretation of Section 8(a)(1) is the purpose of the Act as expressed in the preamble: to preserve to employees an atmosphere in which they have full freedom of choice with respect to collective bargaining and the designation of a bargaining representative. In- herent in the very nature of the rights guaranteed by Sec- tion 7 is the concomitant right of full freedom from em- ployer intermeddling. Employees have as clear a right to organize and select their representatives for lawful pur- 54 N.L.R.B. v Colvert Dairy Products Co, 317 F 2d 44,46 (C.A. 10). 55 N.L.R.B. v. Popeil Brothers, Inc , 216 F.2d 66, 68 (C.A 7) 56 Stafford Trucking Inc., 154 NLRB 1309, 1310. See Arch Beverage Corporation, 140 NLRB 1385, 1386-87; The Lord Baltimore Press, 142 NLRB 328,329; I.A.M. [Serrick Corp.] v. N.L R.B., 311 U.S. 72, 79. 57 Russel H. Williams v. U.S., 127 F Supp. 617, 619, citing Universal Camera Corporation v. N.L.R.B., 340 U.S 474, 487. poses as the employer has to organize its business and select its own officers and agents. One of the purposes of the Act is to insure that em- ployees shall have a free choice as to the question of their representation in negotiating with an employer. This, of course, does not preclude the employer from stating his views as to whether or not his employees should join a union. In the light of these principles, with respect to the vari- ous allegations of unfair labor practices which have been discussed above, and found to be without merit, it may be stated that as to all these alleged violations of Section 8(a)(1), involving the wage reclassifications and changed working conditions, that the Act does not require an em- ployer pending an election to refrain from making economically motivated decisions involving business matters or any changes in wage rates or other working conditions necessary to the continued and orderly opera- tions of his plant, absent a promise of benefit conditioned upon rejection of the union and/or any casual connection between such changes and the rights accorded to em- ployees by the Act. No causal connection has been shown here. Normal business decisions must continue to be made and frequently are necessary for the efficient operation of the plant, even though it occurs during an or- ganizational campaign. The proof adduced by the General Counsel in this proceeding does not indicate that these matters were abnormal or unusual so as to warrant an unfair labor practice finding in the light of the various insubstantial incidents detailed above.60 "Naturally, certain business decisions will, to some degree, interfere with concerted activities by employees. But it is only when the interference with § 7 rights out- weighs the business justification for the employer's ac- tion that § 8(a)(1) is violated. See, e.g., Labor Board v. Steelworkers, 357 U.S. 357; Republic Aviation Corp. v. Labor Board, 324 U.S. 793.. . . some employer decisions are so peculiarly matters of management prerogative that they would never constitute violations of § 8(a)(1), whether or not they involved sound business judgment, unless they also violated § 8(a)(3)." 61 And as stated in N.L.R.B. v. American Ship Building Co., "... the cor- rect test for determining whether § 8(a)(1) has been vio- lated in cases not involving an employer antiunion motive is whether the business justification for the employer's action outweighs the interference with § 7 rights in- volved." (Emphasis supplied.) 62 Any finding that the Respondent could not continue to make normal business decisions such as pay increases during the Union's campaign in keeping with its established company policy of many years clearly is con- trary not only to the realities of industrial life but also to the actualities of industrial relations and the law, as such action on the part of the Company, under the circum- stances here revealed, and the test stated by the Supreme Court in the American Ship Building case, supra, could not have interfered with, restrained, or coerced the em- ployees within the meaning of Section 8(a)(1). Moreover, 56 N.L.R.B v Wilbur H. Ford, dibla Ford Brothers , 170 F.2d 735, 738 (C.A 6) 59 Dixie Shirt Company, Inc., 79 NLRB 127, 128. 60 Cf Cranston Print Works Company , 115 NLRB 537, 540, 541 61 N.L.R.B. v Darlington Manufacturing Co., 380 U.S. 263, 268. Ac- cord N L.R.B. v. Brown , et al, d/b/a Brown Food Store, et al, 380 U S. 278 62 N L.R.B. V. American Ship Building Co , 380 U.S 300,339. LENKURT ELECTRIC CO. no objective evidence has been presented to show that the wage reclassifications were to be conditioned on one's voting for or against the Union, nor was any causal con- nection established between voting for or against the Union and reclassification. Additionally, there was no showing that these matters were arranged or discussed with the intention of inducing the employees to vote against the Union or influence the outcome of the elec- tion. Conduct which serves legitimate business ends dispells a claim of illegitimate motives. An employer is free during an organizational campaign to increase wages or other- wise to institute improved conditions of employment if the changes are motivated by legitimate business consid- erations.63 Action taken by an employer in the pursuit of legitmate business ends and without any intent to invade employees' statutory rights, but to accomplish business objectives acceptable under the Act, is the overriding consideration in situations of this type. There is no evidence here that either the timing of these "employee efficiency evaluations" was intended by the Respondent to discourage union activity nor conceived to counteract the organizing campaign. At most, it was purely a tem- poral coincidence because the wage reclassifications were begun 5 months prior to union organizational activ- ity.64 "Certainly it cannot be laid down as a governing rule that during a union campaign, management must deny to its employees increased advantages which in the absence of the campaign would be granted."65 Assuming, arguendo, that some or all of the matters discussed above would ultimately lead to wage increases, nevertheless, if the Respondent Company was motivated by a legitimate business purpose, it is not prohibited by Section 8(a)(l), even though its incidental effect conceivably may be to discourage union membership. Only if it were the Respondent's express purpose to discourage such mem- bership is the . claim of legitimacy ... totally dispelled."66 Not only is causal connection between the reclassification and voting absent but the timing and the circumstances under which the reclassification occurred do not convince the Trial Examiner that they constitute a substantial basis for an unfair labor practice finding.67 Moreover, the changes effected in this proceeding, if such they were, were not inherently discriminatory or destructive of the rights guaranteed to employees by the Act. Section 8(a)(1) implements Section 7's guarantees by prohibiting interference, restraint, and coercion on the part of the employer. These provisions must be con- sidered in light of the expressed policy of Section 1 of the Act to protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing." Hence, it follows that the "dominant purpose" of Section 8(a)(1) is to in- sure "the right of employees to organize for mutual aid without employer interference. "68 In applying these principles to the facts in the case at hand, it is evident that there was no violation of Section 8(a)(1), as the matters complained of by the General 63 Burns Brack Company, 80 NLRB 389, 391 64 See T. L. Lay Packing Company, 152 NLRB 342, 347. 65 N.L.R.B. v. W T Grant Company, 208 F.2d 710,712 (C.A. 4) 66 N.L.R.B. v Erie Resistor Corp., 373 U.S 221, 228. 67 See Republic Aviation Corporation v. N L.R.B., 324 U.S. 793, 798; N L.R B v New England Web, Inc., 309 F.2d 696, 700-702 (C.A. 1); N.L R.B. v. Houston Chronicle Publishing Company, 211 F 2d 848, 855 (C.A. 5). 957 Counsel had little, if any, tendency to restrain or coerce the employees' free choice when they voted in the representation election. For, if it is apparent to the em- ployees that there is a legitimate business purpose for the employer's action, they are not likely to consider this as something which could be gained and retained if there were no union. Also, when one considers the rather intimate and infor- mal relationship that existed between the employees and Linka in the printing department, the fact that they may have discussed employment problems, working condi- tions, and the Union, and that many of these conversa- tions were initiated by the employees themselves and, in some instances, Linka was provoked, or at least piqued, into discussing the union campaign, it would seem to be rather captious to hold that, under the circumstances, these ingenuous often rhetorical inquiries, require a ruling of an independent violation of Section 8(a)(l), or that any useful purpose would be served by issuing a cease-and- desist order based on them. Moreover, as found above and which ties in with the credibility resolutions hereto- fore made, there is insufficient evidence based on an overall perspective upon which to predicate a finding that Respondent interfered with, restrained, or coerced the employees within the meaning of Section 8(a)(1) of the Act.69 There is only one instance when this area can be inquired into and that is when these judgments are motivated by antiunion considerations. No credible evidence was found that the actions of Linka were motivated by union animus and if such actions can be justified by the Company's interest in the normal opera- tion of its business, such right must be respected. Nor is there manifest here, any evidence of minimizing the in- fluence of organized bargaining and interfering with the right of self-organization "by emphasizing to the em- ployees that there is no necessity for a collective bargain- ing agent. -70 It is found, therefore, that in the present case, there is not substantial evidence to sustain the General Counsel's contention that these alleged threats and interrogations, and the incidence flowing from these incidents, were in- tentionally timed or calculated to illegally influence the employees in the election or to subvert the Union's or- ganizational activities. In addition to the reasons explicated above, none of the reclassification actions proposed to be taken or changes which might be made were unexplained departures from company policy not previously contemplated or in effect. It is uncontradicted that printing had been subcontracted for over 15 years, so that these various actions had been made pursuant to company policy and a pattern which had been established before the Union's organizational campaign in issue began. It is concluded there is no basis for finding that Respondent's actions tended to interfere with the free exercise of employee rights under the Act. 71 The allegations of the complaint have not been proved. The most that can be said is that there is some evidence that Linka was opposed to the unionization of the unit 68 Republic Aviation Corporation v N.L.R B., 324 U.S 793, 798. 69 See Howard Aero, Inc, 119 NLRB 1531; General Electric Com- pany, Apparatus Service Shop, 119 NLRB 1821. 70 May Department Stores d/b/a Famous-Barr Company v. N L.R B., 326 U.S 376, 385. 71 True Temper Corporation, 127 NLRB 839, 843-844. Cf Imco Con- tainer Co. of Harrisonburg v. N.L.R.B., 346 F.2d 178 (C.A. 4). 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees by the Charging Union, a not uncommon phenomenon, and hardly enough to indicate a strong an- tiunion animus, much less enough on which to base a con- clusion that the alleged unfair labor practices were predicated upon proscribed considerations. In fact, Linka suggested the union he formerly belonged to was prefera- ble to the Charging Union. If the acts of Respondent in this case were mechanically held to violate Section 8(a)(1) per se, employers might be inhibited from improv- ing working conditions, increasing wages, and reducing or increasing hours of labor when a representation election is pending.72 At most, the testimony reveals that Linka expressed doubt that the Charging Union could adequate- ly represent the employees and if they selected this Union, their working conditions would be similar to other unionized departments in Respondent's plant and, in his judgment, less favorable than the conditions they presently enjoyed. Such sentiments, however, are shielded by Section 8(c) of the Act, for it is not an unfair labor practice to dislike or oppose a union or to state one's reasons for feeling so.73 General hostility to unions, and opposition of an employer to union organization, without more, does not supply an unlawful motive.74 The display of antiunion hostility, without more, during the course of an organizational campaign, is to be expected and not regarded as an unfair labor practice.75 Of course, whenever motive determines the legality of conduct, the actor runs the risk that his motive will be subject to scru- tiny; but the burden of proving that the employer has acted unlawfully rests upon the General Counsel. This burden of proof, it is found, the General Counsel has not maintained.76 Interrogation Much has been made of whether Respondent coercively interrogated77 employees within the meaning of Section 8(a)(1). In determining this, the following fac- tors must be considered: The background in which the conversation took place, the time and manner under which it was made, and all of the surrounding circum- stances necessary to conclude whether such incidents and conversations had the coercive characteristics proscribed by Section 8(a)(1) of the Act.78 Interrogation of employees by their employer about union matters is not per se a violation of the Act. Whether it tends to interfere with, restrain, or coerce employees in their organizational rights depends upon the facts of each case, but the Board and the courts have delineated certain factors which should be considered. In Bonnie Bourne, an individual d/b/a Bourne Co. v. N.L.R.B., 332 F.2d 47, 48 (C.A. 2), the court set forth five factors to be con- 72 True Temper Corporation, 127 NLRB 839,843 78 N.L R.B. v Threads, Inc., 308 F.2d 1, 8 (C A. 4); Surprenant Manu- facturing Co. v. N.L R B., 341 F 2d 756, 769 (C A. 6) 71 N L R.B. v. South Rambler Company, 324 F 3d 447,449-450 (C A. 8); N.L R,B v Redwing Carriers, Inc , 284 F.2d 397, 402 (C.A. 5) 75 See N.L.R B. v Colvert Dairy Products Co, 317 F.2d 44,46 (C A. 10) 76 Campbell & McLean, Inc, 106 NLRB 1049, W. C. Nabors Co., 89 NLRB 538, 540, N L.R B. v W T Grant Company, 208 F 2d 710, 712 (C A 4), N.L R B v Cleveland Trust Co , 214 F.2d 95, 99-100 (C A 6), N.L.R B. v The Newton Company, 236 F.2d 438, 446 (C A 5). 77 N L.R B. v, Nashua Manufacturing Corporation of Texas, 218 F 2d 886, 887 (C.A. 5), Welch Scientific Co, Inc v. N.L R B , 340 F.2d 199, 204 (C.A 2) sidered in weighing the lawfulness of company interroga- tion of employees: (1) The background, i.e. is there a history of em- ployer hostility and discrimination? (2) The nature of the information sought, e.g. did the interrogation appear to be seeking information on which to base taking action against individual em- ployees? (3) The identity of the questioner, i.e. how high was he in the company hierarchy? (4) Place and method of interrogation, e.g. was employee called from work to the boss's office? Was there an atmosphere of "unnatural formality"? (5) Truthfulness of the reply. In a recent case, Cannon Electric Company, 151 NLRB 1465, 1470, the Board discussed some of these factors which it considered relevant, particularly those referred to in Bourne Co. v. N.L.R.B., supra, stating: "With a caveat that we consider these factors tentative only and not of general applicability, we shall apply the Bourne factors in the present case." However, the Board since then had cited Bourne in Harris Paint Company, 150 NLRB 72; Rosen Sanitary Wiping Cloth Co., Inc., 154 NLRB 1185; United Mineral & Chemical Corporation, 155 NLRB 1390; and Gruber's Food Center, Inc., 159 NLRB 629.79 Judge Waterman of the Court of Appeals for the Second Circuit commented on the Bourne decision, stat- ing that: "Under our decisions [referring particularly to Bourne] interrogation, not itself threatening, is not held to be an unfair labor practice unless it meets certain fairly severe standards.... At the same time, these decisions have looked also to the rank of the interrogator in the company hierarchy and to the setting in which the questioning took place." He concluded, "In view of the apparent brevity and amicable atmosphere of the questioning, we hold that the `fairly severe standards' required for a finding of coercive interrogation have not been met."80 Based on these indicia, and assuming arguendo that Linka did interrogate employees, although many of the questions were rhetorical and not asked in order to seek information for retaliation, it would appear that the alleged interrogation in this case by Linka, a minor supervisor, who was not acting at the instigation or with the approval of Respondent and on his own responsibility,81 does not amount to interference, restraint, or coercion within the meaning of Section 8(a)(1).82 Before inquiries as to union membership and state- ments by employers or supervisory employees can be held to be unfair labor practices, they must be shown to have some relation to the coercion or restraint of the em- 78 United Fireworks Mfg. Co, Inc. v N L R B., 252 F 2d 428, 430 (C A. 6). 78 The Fifth Circuit adopted, with reservations , the Bourne tests in N.L.R B v. Camco, Inc, 340 F 2d 803, 804 Bourne was cited with ap- proval in N L R B v Park Edge Sheridan Meats, Inc , 341 F 2d 725 (C.A 2), reversing 146 NLRB 289, N L.R B v M & B Headwear Co., Inc, 349 F.2d 170 (CA 4), affg. on this point , 146 NLRB 1634; N.L R.B v Ritchie Manufacturing Company, 354 F 2d 90 (C.A. 8), affg on this point 147 NLRB 1257. Cf. Welch Scientific Co , Inc v N L R.B., 340 F 2d 199, 203-204 (CA 2) 80 N L.R B v I. Posner , Inc., 342 F 2d 826, 828 (C.A. 2), enfg. as modified 145 NLRB 1190 81 See supra 12 See Clermont's, Inc, 154 NLRB 1397, 1401. LENKURT ELECTRIC CO. ployees in their right of self-organization. Infrequent, iso- lated, and innocuous inquiries of a relatively small number of employees, standing alone, do not constitute interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act.83 Moreover, merely asking an employee what benefits he expects to derive from union membership is not unlawful. Nor was Linka asking Russell how he anticipated the election would come out a violation in the circumstances here revealed.84 Furthermore, many of the incidents al- leged by the General Counsel to be unfair labor practices were the outgrowth of, and had their genesis in, "give and take" discussions between Linka and the employees about the Union which in itself, is not proscribed.115 These questions were merely innocuous, which do not attain the stature of interference, restraint, or coercion within the meaning of Section 8(a)(1). In making this evaluation and resolution, each incident has been considered on its own facts taking an ad hoc rather than a per se approach, as a too literal and mechanistic approach here may ignore the realties of the informal, casual, and friendly relationship which existed between Linka and the employees in this small department. Here Linka's questioning was neither systematic nor purposive, indeed taken on his own initia- tive and responsibility in a few isolated instances, even though repeated intensive instructions had been given him by the Respondent's labor relations manager as to what he could not do during an election campaign. Applying these indicia, it is found that the General Counsel's contention that the alleged interrogation in- cidents in this proceeding are unlawful is without the sup- port of substantial evidence in the record taken as a whole, as it has not been shown to have been improperly or unlawfully motivated. Moreover, in this case, such sporadic questioning was not followed by reprisals against union adherents,86 nor is there any background of illegal hostility to unions by the Company. Furthermore, the conversations of Linka with the employees named above were no more than impersonal, inconsequential, and casual conversations which, in most instances, were directed to a group and not an individual, inquisitional in- terrogation. As was said in Blue Flash Express, Inc., 109 NLRB 591,597: There are, of course, instances of interrogation which can be properly regarded as isolated, casual, and too inconsequential in their impact to constitute a violation of the Act or to warrant a Board remedy. The impact of these alleged interrogations on the em- ployees determine its legality and there is nothing in the record to show, or from which it might be inferred, that these incidents were interpreted by these various em- ployees as being coercive within the meaning of Section 83 N L.R B v. Armour & Co , 213 F 2d 625 (C A. 5), Burke Golf Equipment Corp v. N.L R B , 284 F.2d 943 (C.A 6) 84 Willard Bronze Company, 148 NLRB 1686, N L.R.B v. Mid-West Towel and Linen Service, Inc , 339 F.2d 958, 960-961 (C A. 7). 85 Ripley Manufacturing Company, 144 NLRB 1132, 1149. 86 See Johnnie's Poultry Co., 146 NLRB 770, 775, The Regulation of Campaign Tactics, 78 Harv L. Rev 38, 107 Professor Bok states at page 11 I of his article that "one may well be reluctant to find that an [employer] has broken the law on the basis of inadvertent or uncalculat- ing behavior which has created no more than a speculative risk of in- timidating employees `and that in cases of that sort' one may justly question whether much can be done by faulting the employer long after the conduct in question has occurred." 87 Schwab Manufacturing Company v N.L R.B., 297 F 2d 864, 870 (C A. 5). 959 8 (a)(1). These incidents were neither threatening nor con- ducted otherwise than in a sometime friendly, and other times, perfunctory and casual manner. Moreover, the record is devoid of any evidence that it had the slightest effect in actually preventing or discouraging membership in the Union. "Isolated statements by minor supervisory employees made casually in conversation with fellow em- ployees without the knowledge of their employer and not in the course of their duty or in the exercise of their delegated authority over those employees ought not to be too quickly imputed to their employer as its breach of the law."87 The record shows that Linka's questions were mere inquiries and sometimes answers to the employees' questions concerning unionization which, standing alone and wholly divorced from any atmosphere of coercion, cannot be regarded as violative of the Act, because such casual inquiries do not reasonably tend to restrain or in- terfere with the employees in the exercise of their statuto- ry rights.88 Neither do we find here a "campaign of 'harassment," 89; nor is coercion implicit in the question- ing.90 The testimony with respect to employee interrogations detailed above, were de minimis and did not interfere with, restrain, or coerce these employees within the meaning of Section 8(a)(1) of the Act. This finding is based, in part, upon the premise that interrogation becomes unlawful only when it is part of the means by which the employer's hostility carries with it the purpose to retaliate against union sympathizers, and by threats or other reprisals for employees' union activities.91 Applying these concepts to the alleged interrogation in- cidents, it is not believed that these incidents violated Section 8(a)(1) or that the issuances of a remedial order would effectuate the policies of the Act, as these queries do not seem injurious to the employees' untrammeled rights to organize, as guaranteed by Section 7 of the Act.92 Moreover, the casual circumstances under which these conversations occurred and the knowledge that any determination of the exact nature and effect of such state- ments can be made only with due regard for the context of the statements and the relationships existing between Linka and the employees, and that the conversations did not occur in any context of coercion or restraint, and the fact that Brown and Horsell, with whom Linka discussed the campaign, were union adherents who not only were not intimidated but who argued the union side with him, persuade the Trial Examiner that these incidents do not amount to unfair labor practices. 93 The Trial Examiner is further persuaded by the fact that Linka was on a first- name basis with the employees; he hired all of them, he was close to them, they not only consulted him as their supervisor but also as a friend to whom they came with 88 Lily-Tulip Cup Corporation, 113 NLRB 1267 , Blue Flash Express, Inc, 109 NLRB 591, N.L R B v Mississippi Products , Inc, 213 F 2d 670, 673 (C.A. 5); N.L R B v. Armco Drainage & Metal Products, Inc., 220 F.2d 573 , 583 (C A. 6); N.L R B. v . J. E McCatron , et at, d/b/a Price Valley Lumber Co , et al , 216 F . 2d 212 (C.A 9). 81 N.L R.B v M J McCarthy Motor Sales Co, 309 F.2d 732 (C.A. 7) so N.L R B. v. Beaver Meadow Creamery, Inc , 215 F.2d 247 (C A. 3). si N L R B v. T A. McGahey, Sr, et al., d/bla Columbus Marble Works, 233 F.2d 406, 410 (C.A 5) 92 See Commercial Printing Company, 99 NLRB 469; Silver Knit Hosiery Mills, Inc, 99 NLRB 422, 424, 425, West Texas Utilities Com- pany, Inc., 85 NLRB 1396, 1400 93 N L R B v. Morris Fishman and Sons, Inc, 278 F 2d 792 (C.A. 3) Cf G H Hicks and Sons, Incorporated, 141 NLRB 1272, 1278 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their personal problems, and who fraternized with them socially after working hours. Threats The allegations in the complaint that Respondent warned and threatened reprisals against employees for engaging in union activities or for being union adherents has not been show affirmatively by a preponderance of the evidence. Nor does the record support the allegations of the complaint with respect to these alleged unfair labor practices, either by direct proof or reasonable inferences, as isolated instances cannot be drawn upon to establish a violation where the totality of the Respondent's conduct conforms not only to the dictates of the statute but does not violate the employees' statutory rights.94 Nothing in what was said to the 33 employees, as detailed above, can fairly be considered intimidatory or coercive. Nor do the statements made by them reasonably lend themselves to an interpretation, considering the entire record, that they contain any warning, threat of reprisal, or promise of re- ward. In fact, the tenor of the testimony indicates affirma- tively that not only were the employees free to voice their support of the Union, but that the employees even in- itiated conversations themselves with Linka, in some in- stances, regarding their union feelings with no apparent fear of reprisal on the part of the Respondent. There was not a scintilla of evidence showing any reprisals. The record, therefore, fails to sustain these allegations of the complaint. In sum, the essence of the evidence with respect to the alleged violations of Section 8(a)(1) is reduced to the General Counsel picking out a few random, minimal, and isolated incidents. It is not too unreasonable to charac- terize these incidents as such because the record does not reveal a pattern of flagrant conduct on Respondent's part. Under such circumstances, the incidents were isolated.95 Moreover, an analysis of the testimony on this point reveals that at most, such "threats" were predictions of unfavorable consequences resulting from unionization rather than a threat on the part of Respondent to visit such consequences upon the employees in the event of unionization.96 This conclusion is fortified by the fact that Linka did not have the requisite authority to implement his predictions. Moreover, utterances during an election campaign ought not to receive a narrow or strained con- struction. "Section 8(c) of the Act not only gives the em- ployer the right to express his opinion in opposition to the Union, but also the right to express `argument' in support of such opinion. The right would be of very little value if the employer in expressing opposition to a union was for- bidden to, point out in what ways the advent of the union would not work to the benefit of the employees, but to their serious harm."97 In the case at bar, what the General Counsel's representatives characterize as threats to employees are, in some instances, merely explanations by Linkawhy he told the employees to consider carefully whether they wanted a union. Moreover, using their in- formal relationship as justification, Brown and Horsell engaged Linka in frank discussions regarding the Union and solicited responses. Furthermore, the Company had instructed Linka re- peatedly as to what the law prohibited him from doing in dealing with employees during an organizational cam- paign. And then, too, it must be borne in mind that this was the first election ever held at the plant and the first election for Linka. And Linka's actions, as found above, were not taken with the express purpose of impinging on the employees' freedom of choice for or against union representation. Nor was it reasonably calculated to have that effect.98 In view of the foregoing conclusions, and upon a realistic appraisal of the entire record, including the trivial nature of these noncoercive colloquies between the employees and Linka, it is concluded, both because of the realties of present day employer-union relationships and the absence or resort to systematic intimidation, that no statutory rights were violated. "Some twenty years ago when the war over the unionization of industry was at the critical stage, em- ployees might well and with good reason have feared to reveal their union sentiment and might well have been swayed one way or another by an employer's statement as to his position on the subject Now, labor and industry speak with equal dignity and it requires something more than mere suspicion to read coercion into an employer's [actions] which, upon its face, is in all respects within the proprieties."99 It is found, therefore, upon the basis of the entire record and the applicable law, that the General Counsel has failed to sustain the burden of proving by a preponderance of the credible evidence that the Respond- ent Company interfered with, coerced, or restrained the employees encompassed in the complaint within the meaning of Section 8(a)(1). The word "credible" immediately above, has been emphasized because every incident alleged by the General Counsel to be a violation of Section 8(a)(1) has been unequivocally and categorically denied by the Respondent's witnesses. Suspicion, surmise, and conjec- ture cannot displace legally sufficient proof nor can one inference be piled upon another. The positive denials of Respondent's witnesses should not be discarded in favor of an inference drawn from tenuous circumstances that at best can support not even an anemic suspicion. A viola- tion of the Act cannot be so established in the absence of evidence to show unlawful motivation. There must be im- peachment, or substantial contradiction, or if circum- stances raise doubts, the evidence adduced by the General Counsel must be inconsistent with the positive sworn denials of the Respondent's witnesses on the exact point.' Such a showing has not been made in this case. Thus, the General Counsel has failed to establish by ac- ceptable, probative, and substantial evidence on the whole record such unlawful motivation. The burden was on the General Counsel's representa- tive to prove his case affirmatively against Respondent by a preponderance of the evidence 2 and not upon Respond- 94 See N.L.R.B. v Poped Brothers, Inc., 216 F.2d 66, 68 (C A. 7). 95 Armco Steel Corporation v NLRB., 344 F.2d 621, 625 (C A 6). 9s Surprenant Manufacturing Co. v NLRB., 341 F.2d 756, 759 (C A 6), Union Carbide Corp. v N L.R B , 310 F. 2d 844, 845 (C A. 6); N L.R B v. Transport Clearings, Inc., 311 F.2d 519, 523-524 (C.A. 5). 97 Surprenant Manufacturing Co v N.L.R B , 341 F 21t 756, 759-760 (C.A. 6). 98 See N.L R B v. Exchange Parts Company, 375 U.S 405, 409. 99 N.L R B. v. Roberts Brothers, 225 F 2d 58, 60 (C A. 9) See also Diamond GingerAle, Inc., 125 NLRB 1173, 1178 1 N L.R B. v Drennon Food Products Co , 272 F 2d 23,27,28 2 Section 10(e) of the Act, N L.R.B v. Cleveland Trust Co, 214 F 2d 95, 99 (C A 6) See American Flint Glass Workers' Union of North America, et at. [Bartlett Collins Company, Intervenor] v. N L.R B., 230 F 2d 212, 216 (C.A D C ), cert. denied 351 U.S 988 LENKURT ELECTRIC CO. ent to disprove it.-' This burden may be met by drawing reasonable inferences from established facts,4 provided it is supported by substantial evidence when viewed on the record as a whole.5 Unless there is a reasonable basis in the evidence for findings of unfair labor practices, the employer need not excuse or justify his action . 6 It is not the burden of the employer to show the absence of proscribed motivation , but that of the General Counsel to establish its presence .7 However , the evidence adduced here, at most , merely raises some speculation , but specu- lation cannot suffice for substantial proof nor can such speculation be accepted as justifiable inference , if to do so means ignoring positive evidence arrayed against such inferences." To be sure, every reasonable inference is permissible but suspicion must not be allowed to take the place of proof. Accordingly , viewed as a whole , and bearing in mind that in controversies of this kind , the paramount purpose of the Act is to secure to the employees freedom of choice in the selection of their collective -bargaining representa- tive,9 it is found that the General Counsel 's representative has not proved affirmatively by substantial , credible evidence the allegations of the complaint.10 IV. REPORT ON OBJECTIONS Conduct Alleged to Have Affected the Results of the Election The Letters The Union , in its objections to the election and request that a new election be ordered, contends that two letters Respondent sent employees during the election cam- paign, were false and "untruthful." The other three objec- tions which are the same as the allegations of the com- plaint are set out under the section entitled "Background ," supra, and the letters are attached hereto as Appendix A. Both letters , in their tone, were not antiunion , although one has the constitutional right to campaign against a union by expressions of views and opinions free of coer- cion and restraint , cannot be gainsaid . A preelection letter, containing no threat of reprisal or promise of benefit as would reasonably have tended to coerce, or restrain , or intimidate employees in the exercise of their right to organize and bargain collectively but consisting of noncoercive argument and protected free speech, is not an unfair labor practice.) i Moreover , the contents of the letters are not only the type of legitimate campaign propaganda which the Board consistently refuses to censor or police , but also it does 3 N.L R B. v. Soft Water Laundry , Inc , 346 F 2d 930, 935 (C.A 5). 4 N L.R B v. Nevada Consolidated Copper Corporation , 316 U.S 105, 107. 5 Universal Camera Corporation v N L.R .B., 340 U.S. 474 6 N.L R .B. v Wagner Iron Works , 220 F 2d 126 (C A 7), cert. denied 350 U.S. 981 9 New Big Creek Mining Company , 105 NLRB 97, 104 8 N L R.B . v. Murray Ohio Manufacturing Co., 326 F .2d 509, 513 (CA 6), N.LR.B v. Ace Comb Co., 342 172d 841 (C.A. 8) Cf. N L.R.B . v. Brady Aviation Corporation , 224 F 2d 23 , 25 (C A 5). 9 1.A M (Serrick Corp ) v N L.R.B, 311 U S 72 , N L.R.B. v Pennsylvania Greyhound Lines, Inc., 303 U S . 261, N L R B . v Jones & Laughlin Steel Corporation , 301 U.S. I 10 Cf. American Newspaper Publishers Association v N L R B., 193 F.2d 782 , 805 (C A 7) 961 not exceed the bounds of permissible electioneering. These letters do not violate the voters' rights of exercis- ing a reasoned , untrammeled choice for or against the Union as they are neither misleading nor misrepresent so as to prevent the exercise of a truly free choice by em- ployees in selecting a bargaining representative. Moreover , the letters , when viewed in their total context, are not calculated to deprive the employees of their freedom of choice in selecting a bargaining representa- tive.12 An employer generally is entitled under the First Amendment to the Constitution to express his views and preference in a labor dispute, absent restraint or economic coercion and such right is expressly recognized also in Section 8(c).13 Congress intended to guarantee the right of the employer and the union to air their views because , through the free exchange of ideas, the in- dividual employee's voting preference would be aided in making his choice. The Supreme Court in speaking of Section 8 (c) has stated : "The remedial function of §8(c) is to protect noncoercive speech by employer and labor organization alike in furtherance of a lawful object. 1114 An employer has the right to speak up against unionization. 15 The test is whether the writing, charged to be coercive and threatening , was reasonably calculated to interfere with the employees' free choice as to whether they desired to be represented by the Union for the purpose of collective bargaining. 16 In determining if the letters involved in this proceed- ing17 are protected by these constitutional and statutory provisions , a study of the cases reveals that the Board has held the touchstone to be whether the statement , because of its nature , tends to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, or tends to unfairly influence employees ' freedom of choice in an election. In Linn v. United Plant Guard Workers of America, Local 114, 383 U.S . 53, the Supreme Court noted that , "although the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees , it does not in- terpret the Act as giving either party the license to injure the other intentionally by circulating defamatory or in- sulting material known to be false." It is found, ac- cordingly , that the Respondent's letters, which it sent to its printing department employees , were neither false nor misleading so as to interfere with their free and untram- meled choice in the election. The Board has stated its responsibility in connection with the conduct of elections as follows: Our function , as we see it , is to conduct elections in which the employees have the opportunity to cast their ballots for or against a labor organization in an " Cf King Ventilating Company, 60 NLRB 1, 8. The Lord Baltimore Press, 145 NLRB 888 13 Section 8(c) provides that "The expressing of any views , argument, or opinion, or the dissemination thereof , whether in written , printed, graphic, or visual form , shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit " 14 International Brotherhood of Electrical Workers, Local 501, et al [Samuel Langer] v. N L.R .B., 341 U .S. 694, 704. 15 N L .R.B. v Virginia Electric and Power Company, 314 U S. 469, 319 U S . 533, N L R , B. v American Tube Bending Co., Inc, 134 F 2d 993 (C A. 2), cert. denied 320 U S. 768. 1 ° N L.R .B. v Wilbur H . Ford, d/b/a Ford Brothers, 170 F.2d 735, 738 (C.A 6) 17 See Appendix A 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD atmosphere conducive to the sober and informed ex- ercise of the franchise, free not only from inter- ference, restraint, or coercion violative of the Act, but also from other elements which prevent or im- pede a reasoned choice.' 8 In N.L.R.B. v. Gorbea, Perez & Morell, S. en C., 328 F.2d 679, 680 (C.A. 1), the court used this language in determining whether there was interference with the em- ployees' freedom of choice: The question whether there is interference with the employees' freedom of choice is often subtle and difficult. However, we start with one simplifying principle, avoiding the necessity of making the often impossible determination of its actual impact in the particular instance , that an inducement normally is material if objectively it is likely to have an apprecia- ble effect. The Respondent's actions in this proceeding neither prevented a reasoned choice nor had an appreciable ef- fect on the printing department employees, and it is so found. Accordingly, it will be recommended that the ob- jections to the election be overruled and the results of the election certified.' 9 CONCLUSIONS OF LAW 1. The Lenkurt Electric Company, Inc., is engaged in commerce within the meaning of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent has not committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. In view of the foregoing conclusions, and upon the en- tire record, it is found that the evidence warrants no find- ing that the Respondent committed unfair labor practices within the meaning of Section 8(a)(1) of the Act, and it will, therefore, be recommended that the complaint be dismissed in its entirety, and that the objections in Case 20-RC-7154 be overruled and that the results of the elec- tion be certified because Respondent's conduct did not interfere with the exercise of a free and untrammeled choice by the employees in the election. 1 " Sewell Manufacturing Company, 138 NLRB 66, 70. 1 See Oak Manufacturing Company, 141 NLRB 1323; Storkline Cor- poration, 142 NLRB 875; Carl T. Mason Co., Inc., 142 NLRB 480; Sewell Manufacturing Company, 138 NLRB 66. APPENDIX A October 7, 1966 In my last letter I questioned what, if anything, the union could offer you in exchange for your becoming dues paying, rank and file members. I believe the specific reason you are being asked to join is so that you can contribute to the union treasury and increase their weak "captive" shop membership. I question if the union is truly concerned with your working con- ditions and individual welfare. We at Lenkurt have always acted in the belief that our people must be well and fairly treated. This belief is responsible for our long standing policy of provid- ing one of the best benefit and working condition packages in the electronics industry. Remember, Lenkurt voluntarily established group insurance and pension plans long ago. No union had anything to do with their establishment. A comment about their so called "Industry" Agree- ment . They would have you believe there is something magic about it. That you will get all those goodies merely by voting for the union ! Don't be mislead by union guarantees of higher wage rates. Our wages are governed by the economics of the electronics industry and by our competition -not by the printing industry. We must keep flexible to suc- cessfully compete for business- our job security will continue as long as we are competitive. Many of you have been here five, ten, and fifteen years. You are the best ones to judge what the union has to say about "job security." They say we discharge at the boss' whim! This is simply ridiculous as you well know. You know how stable work has been in the print shop. The union promises "job security." No union provides jobs except for the union organizer, business agents, international of- ficers and their staffs. No union can provide job security if your work is unsatisfactory, if you violate reasonable work rules, or if it becomes economically necessary to reduce the size of the work force. When all is said and done our jobs actually depend upon you and our customers. Before you decide to assign your individual rights to a union consider: 1. It costs money, month after month, year after year, to belong to a union. It is supported by your monthly dues, fines, "chapel" funds, as- sessments, strike funds, etc. Salaries and ex- pense accounts cost money- your money. 2. You may be required as a union member to devote considerable time to attending meetings and other activities including picket duty-here or elsewhere-and you might be subject to fines and assessments for failure to do so. 3. You are considering a printing craft union- oriented to the printing industry with its jour- neyman-apprenticeship considerations. We are in the electronics industry, the printshop is a ser- vice department and economically must be geared to our electronics business. Where would you stand in a printing union organization? It is perhaps obvious where many of you being promised the most would stand. The organiza- tion material of the union itself does not even list your classification and rate on their wage scale sheet. They had to write in the Multioperator and rate! Is` this what your $75.00 plus a year dues, "chapel" funds, strike assessments, etc. will buy you? LENKURT ELECTRIC CO. 963 Without a union, management can recognize and re- ward an employee's initiative and ability. With a union, you must wait for seniority. We respect the rights of our people to join labor unions. We simply believe, however, that a union would not benefit you and Lenkurt, and that your thoughtful consideration of the facts will prove this to you. Sincerely, LENKURT ELECTRIC CO., INC. A. George Ewing Vice President, Manufacturing October 11, 1966 As you know, on Friday of this week, we will hold an election to determine whether or not you will hereafter be represented by a printing union or whether we will continue our individual relationship as before. In an earlier letter I pointed to the fact that joining a, union does not guarantee job security, in- creased wages or benefits. Today I would like to point out still another reason why I sincerely believe it would not be to your advantage to join a union. Should a majority of those who vote Friday cast their ballots in favor of the printing union, everybody else in the designated unit, regardless of their personal preferences will have to be represented thereafter by the union in all their associations with the company. There would be no way to avoid this short of quitting your job. We think you should know that once you are represented by a union it is very difficult to get it out. In the future, should you become dissatisfied with the manner they conduct your affairs with the com- pany, represent you in your personal relations with the company , or fail to deliver on their promises to you as to what they will get the company to do, then you can do nothing until their contract expires. Then only by expensive legal process can you decertify the union as your agent . IS THIS WHAT YOU WANT? WE DON'T THINK SO! We are concerned that some of our people who have never belonged to a union don't fully appreciate what authority they give to the union by a certification vote. A union is not just there when you want it. If you elect a union, it is, by law, the exclusive representative of all employees in the unit for pur- poses of wages, conditions of employment, job as- signments, personal problems, etc. If a union is elected, it is illegal for the company to bargain with individual employees. Unions can, and do, impose many rules and regulations on their members. These rules are not negotiated with the members, nor are they negotiated with the company. These rules are set by the union and may be enforced by fine, suspensions or other disciplinary action. Don, Ken and I have always respected your in- dividual right to bring suggestions, problems or com- plaints to our attention. We cannot claim a record of perfection nor can we promise that every decision in the future will necessarily be popular with everyone. However, you can be sure that whatever we do will be done with our policy of justness and fairness firmly in mind. We do not feel you are a time clock number. We know you have individual problems. We think we can continue to help. Frankly, we doubt that a union would solve them at all, or would even be interested in most of them. The choice is yours to vote as you choose -but vote. Sincerely, LENKURT ELECTRIC CO., INC. A. George Ewing Vice President, Manufacturing 350-212 0-70-62