Masoneilan International, Inc.

National Labor Relations Board - Board DecisionsApr 20, 1976

223 N.L.R.B. 965 (N.L.R.B. 1976)

MASONEILAN INTERNATIONAL 965 Masoneilan International, Inc. and Southern Califor- nia Printing Specialties and Paper Products Union, District Council No. 2, affiliated with the Interna- tional Printing and Graphic Communications Union, AFL-CIO. Cases 21-CA-13523 and 21- RC-14031 April 20, 1976 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS JENKINS, PENELLO, AND WALTHER On December 22, 1975, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party-Petitioner filed exceptions and briefs in Case 21-CA-13523, and the Respondent- Employer filed a brief in support of the Administra- tive Law Judge's Decision in that case. In addition, the Respondent-Employer filed exceptions and a brief in Case 21-RC-14031, and the Charging Party- Petitioner filed a brief in support of the Administra- tive Law Judge's Decision in that case. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this consolidated proceeding to a three- member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' con- clusions, and recommendations 2 of the Administra- 1 With respect to Objection 1, the Administrative Law Judge finds that Manuel Lara's conduct , in and of itself , was insufficient to constitute a violation of our rule regarding electioneering at the polls . Milchem, Inc., 170 NLRB 362 (1968 ). We agree, and therefore find it unnecessary to consider whether Lara acted as an agent of the Petitioner. The Respondent , General Counsel , and the Charging Party have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponder- ance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd, 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions thereto, we adopt pro forma the Adminis- trative Law Judge's recommendations that Objections 2 and 6 be overruled. In adopting the Administrative Law Judge's recommendation that Objec- tion 3 be overruled , Member Jenkins relies upon the Administrative Law Judge 's analysis of the evidence and his application of the principles set forth in Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962). Member Penello agrees that the alleged misrepresentations referred to in Objection 3 do not warrant setting the election aside, but does so for the reasons set forth in his dissenting opinions in Medical Ancillary Services, Inc., 212 NLRB 582 (1974), and Ereno Lewis, 217 NLRB No. 45 (1975). Member Walther agrees with the conclusion that the election should not be set aside inasmuch as the same result is reached under any view of the applicability of Hollywood Ceramics. tive Law Judge only to the extent consistent here- with. We find merit in the exceptions of the General Counsel and the Charging Party to the Administra- tive Law Judge's decision and recommended Order dismissing the complaint in Case 21-CA-13523, and we reverse the Administrative Law Judge's refusal to find violations of Section 8(a)(1) and (3) of the Act, because of Respondent's suspension of Manuel Lara for 3 days without pay. We affirm, however, the Ad- ministrative Law Judge's decision and recommended Order overruling the Employer's objections to con- duct affecting the results of the election in Case 21- RC-14031, and recommending that the Union be certified as the exclusive collective-bargaining repre- sentative of the employees in the appropriate unit. Briefly stated, the facts relating to the alleged 8(a)(1) and (3) violations are as follows. Lara, an em- ployee of the Respondent, and a coworker were di- rected to set up a loudspeaker system outside in the receiving area of Respondent's plant for use during a retirement ceremony. After'finishing the job not long before the ceremony was to begin, Lara's supervisor, George Engelmann, handed him a microphone and asked him to test the speaker system. Lara did this by saying into the microphone, either in English or part- English and part-Spanish, "Don't be afraid to vote for the Union." This incident occurred in the midst of an election campaign at Respondent's plant. Following Lara's statement on the public address system, Englemann testified that he observed disrup- tion in the plant, including laughing and catcalls, which lasted for about 10 minutes. Engelmann also stated that other employees informed him of what Lara had said. Personnel Manager Harvey Klee simi- larly testified that several employees reported to him the nature of Lara's statement and that some disrup- tion had occurred following the remark. As a result, Lara was suspended for 3 days without pay. Lara asserted at the hearing that he made the pro- union statement in response to seeing one of the Respondent's antiunion posters on a nearby wall. Lara also stated that he had previously tested the microphone on other occasions by saying, "Testing, one, two, three, four," or by singing a song. .On these facts, the Administrative Law Judge con- cluded that Lara's statement over the microphone, though concerted as an appeal for group action, was not protected under Section 7 of the Act. Crediting testimony on behalf of the Respondent, the Adminis- trative Law Judge reasoned that Lara's suspension was due to insubordination, because Lara must have realized that management would not have permitted him to use its public address system to "propagan- dize for the Union," and because he caused disrup- 223 NLRB No. 133 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion in plant production. The Administrative Law Judge relied upon Bell Federal Savings and Loan As- sociation of Bellevue, 214 NLRB 40 (1974), in which we held that a company telephone operator's disclo- sure of confidential information to the Union was not protected activity, and J. P. Stevens & Company, Inc., 219 NLRB 850 (1975), in which we decided that a planned effort to disrupt captive audience speeches with argumentative questions was likewise unprotect- ed. In agreement with the General Counsel and the Charging Party, we believe that Lara's activity in this case was protected. As pointed out by the General Counsel, we also ruled in J. P. Stevens & Company, supra, that an employee is entitled to insist on an answer to a question at a captive audience meeting, so long as there is no "violent conduct, improper mo- tive, or bad faith." In reaching that conclusion, we relied upon an earlier case, Prescott Industrial Prod- ucts Company,' in which an employee, also acting in good faith and not as part of a plan to disrupt the meeting , insisted on the right to ask a question dur- ing a captive audience speech. Finally, Bell Federal Savings and Loan Association, supra, concerned an entirely different issue: betrayal of confidential in- formation gained in the course of employment. We find Lara's conduct in the instant case to be analogous to that of employees who insist on asking questions in good faith at captive audience meetings. Initially, we note that Lara was instructed to set up the public address system, and then asked to test it immediately after completing the work. Thus, it is unlikely that Lara had much time to think out some- thing to say over the speaker system. Indeed, the un- contradicted testimony in the record is that Lara's statement was a spur-of-the-moment reaction to catching sight of one of Respondent's antiunion posters. We therefore find that Lara's remark over the public address system was protected under the Act, since it was not made pursuant to a prearranged plan to disrupt the Company's operations. We also find that the Respondent violated Section 8(a)(3) and (1) of the Act in suspending Lara. We conclude that the Respondent suspended Lara, at least in part, because of the content of his statement over the loudspeaker system. Thus, the Administra- tive Law Judge credited Engelmann with telling Lara's coworker, Ramirez, that he did not want Lara to help Ramirez dismantle the system. When Rami- rez asked why, Engelmann responded, "You are smart enough to know what he said." In addition, the Administrative Law Judge discredited Klee's state- ment that he "could care less what was said" over the '205 NLRB 51 (1973 ), enforcement denied 500 F.2d 6 (C.A. 8, 1974). microphone. Taken together, Engelmann's credited remark and the discredited statement of Klee, indi- cated that the nature of Lara's words played a part in the decision to suspend him. As a result, even though insubordination may also have been a cause of the suspension, a violation must still be found. Erie Sand Steamship Company, 189 NLRB 63 (1971)' This conclusion is buttressed by several other facts. The record makes clear that Lara was a known and active union adherent. Also, Respondent waged a vigorous antiunion campaign, which included an- tiunion posters and captive audience speeches.5 Fi- nally, Engelmann, Lara's supervisor, admitted that the disruption after Lara's statement was not severe enough that he felt compelled to tell the employees to get back to work. In fact, production was only inter- rupted for 10 minutes at the most 6 All these factors evidence antiunion motivation on the part of the Re- spondent in suspending Lara. THE REMEDY In view of the foregoing, we have found, contrary to the Administrative Law Judge, that the Respon- dent has violated Section 8(a)(1) and (3) of the Act, by unlawfully suspending Manuel Lara for 3 days without pay. Therefore, we shall order the Respon- dent to cease and desist from the commission of such unfair labor practices, and to make Manuel Lara whole for any loss of earnings he may have suffered by reason of his unlawful suspension. All backpay is to be computed on a quarterly basis as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest at the rate of 6 percent per annum as provided for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). We shall further order Respondent to expunge from Manuel Lara's person- nel records any notice of disciplinary action taken against him for making the statement in issue. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Masoneilan International, Inc., Montebello, Califor- nia, its officers, agents, successors, and assigns, shall: Member Jenkins would note in addition that in this incident Lara did nothing he had not previously done in testing the equipment except make a prounion comment, so it is plain the only reason Lara was disciplined was because of the character of this comment. 5 Such a campaign is evidence of antiunion motivation . Lapeka, Inc., 187 NLRB 750 (1971). enforced in unpublished opinion 80 LRRM 3456. 68 LC 112. 726 (C.A. 10, 1972). 6 In this regard , it should be noted that it is questionable whether the disruption was related to Lara's conduct. It may possibly have had some- thing to do with the impending retirement ceremony , which was to begin 15 minutes after Lara's statement. MASONEILAN INTERNATIONAL 967 1. Cease and desist from: (a) Suspending or otherwise disciplining employ- ees who make statements protected under Section 7 of the National Labor Relations Act on behalf of Southern California Printing Specialties and Paper Products Union, District Council No. 2, affiliated with the International Printing and Graphic Commu- nications Union, AFL-CIO, or any other labor orga- nization, or who engage in other protected activity under Section 7 of the Act. (b) Discouraging membership in Southern Cali- fornia Printing Specialties and Paper Products Union, District Council No. 2, affiliated with the In- ternational Printing and Graphic Communications Union, AFL-CIO, or any other labor organization, by discriminatorily suspending, or otherwise discrim- inating against, employees in any manner with re- gard to their hire and tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Make Manuel Lara whole for any loss of earn- ings he may have suffered by reason of Respondent's unlawful suspension of him in the manner provided in the section of this Decision entitled "The Reme- dy ." (b) Expunge from Manuel Lara's personnel re- cords any notice of disciplinary action taken against him for making the statement in issue. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at Respondent's plant in Montebello, Cal- ifornia, copies of the attached notice marked "Ap- pendix."' Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative, shall be posted by Respondent 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 3. The Employer's objections to conduct affecting the results of the election are overruled. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Southern California Print- ing Specialties and Paper Products Union, District Council No. 2, affiliated with the International Print- ing and Graphic Communications Union, AFL- CIO, and that, pursuant to Section 9(a) of the Na- tional Labor Relations Act, as amended, the said la- bor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment; and other terms and conditions of employment: All production and maintenance employees, shipping and receiving employees, truckdrivers, warehousemen, and leadmen employed by the Employer at its facility located at 1040 South Vail Avenue, Montebello, California; excluding all other employees, office clerical employees, foremen, guards, professional employees, and supervisors as defined in the Act. 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT suspend or otherwise discipline employees who make statements protected un- der Section 7 of the National Labor Relations Act on behalf of Southern California Printing Specialties and Paper Products Union, District Council No. 2, affiliated with the International Printing and Graphic Communications Union, AFL-CIO, or any other labor organization, or who engages in other protected activity under Section 7 of the Act. WE WILL NOT discourage membership in Southern California Printing Specialties and Pa- per Products Union, District Council No. 2, af- filiated with the International Printing and Graphic Communications Union, AFL-CIO, or any other labor organization, by discriminatori- 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly suspending, or otherwise discriminating against, employees in any manner with regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL make Manuel Lara whole for any loss of earnings he may have suffered by reason of our unlawful suspension of him, plus 6 per- cent interest. WE WILL expunge from Manuel Lara's person- nel records any notice of disciplinary action tak- en against him for making statements protected under Section 7 of the National Labor Relations Act. MASONEILAN INTERNATIONAL, INC. DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Administrative Law Judge: The foregoing unfair labor practice Case 21-CA-13523, consol- idated with the above-named Employer's (or Respondent's) objections to conduct affecting the results of election in Case 21-RC-14031, was heard before me on August 21, 22, and 25, 1975. The General Counsel's consol- idated amended complaint herein was issued on August 8, 1975. It was based on a charge filed April 7, 1975, by the labor organization named in the caption, hereinafter re- ferred to as the Union. The General Counsel's amended complaint alleged that the above-named Respondent, also herein called Employer, in violation of Section 8(a)(1) and (3) of the Act, issued to employee Manuel Lara a 3-day disciplinary suspension because he engaged in union or other protected concerted activities.' The Respondent's an- swer admitted that it suspended Manuel Lara for 3 days, from March 31, 1975, to April 2, 1975, but denies that its suspension of Lara violated Section 8(a)(1) or 8(a)(3) of the Act. Upon the entire record, including my observation of the witnesses , and after consideration of the briefs filed by the General Counsel, the Respondent, and the Union, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges , the answer admits , and I find, 'Case 21-CA-13746, included in the case consolidation , was disposed of by an all-party settlement agreement approved by the Regional Director on August 19 , 1975. Consequently , the General Counsel , at the outset of this hearing, dismissed paragraphs 7 and 8 of the consolidated amended com- plaint which related to Case 21-CA-13746. that the Respondent, a Delaware corporation, is engaged in the business of manufacturing process control valves at its plant located at Montebello, California. Respondent an- nually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California. Respondent is an employer engaged in commmerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION. The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Manuel Lara, at the time of his 3-day suspension, had been employed by the Respondent in excess of 8 years. He had been employed as a maintenance mechanic helper since January 1974. Lara worked the 7 a.m. to 3:30 p.m shift. He testified that his immediate supervisor is George Engelmann.2 The Respondent has a general public address system that is connected to the switchboard and is operated by the switchboard operator, usually to page people. It also has a portable loudspeaker system that is set up for special occa- sions. On about March 25, 1975, Engelmann directed a memo- randum to electronics maintenance mechanic Joe Ramirez directing him to set up the portable loudspeaker system by 1:30 p.m. on March 27, to be used in connection with a retirement ceremony to take place outside the plant's re- ceiving area beginning at 2 p.m. on March 27. Ramirez, with his helper, Manuel Lara, began erecting the portable loudspeaker system about 12:30 p.m. on March 27 and completed the task about 1:30 p.m. The speaker system was set up outside in the receiving area . Lara testified that on completion of the task, Engelmann came by and hand- ed him a lapel microphone and told him to test it and then Engelmann went to adjust the amplifier. Lara testified that he tested the microphone on this occasion by speaking into it the following statement in Spanish: "Don't forget to vote for the Union on the day of the election." Others who heard Lara's remarks into the microphone reported that he said, "Don't be afraid [in English, and] vota para la union [in Spanish]." (English translation: "vote for the union.") Lara testified that he was prompted to make the remark he did because at the moment he saw one of Respondent's posters on the wall urging the employees to vote against the Union.3 Lara testified he had, on occasion in the past, test- ed the microphone by speaking the words "Testing, one, two, three, four," or singing a song. Englemann, who heard Lara' s remarks but did not un- derstand the Spanish remarks when uttered, subsequently 2 George Engelmann is manager of manufacturing, engineering , and in- dustrial engineering. I George Engelmann testified that he heard Lara speak over the loud- speaker system , "Testing, one, two, three," then "Don't be afraid" ( in Eng- lish), then some Spanish words he did not understand. Engelmann testified that he did not hand the microphone to Lara or request him to test it. Engelmann testified he handed all the equipment to Joe Ramirez about 12:30 p.m. on March 27. MASONEILAN INTERNATIONAL 969 learned the English translation . After the completion of the ceremony, Engelmann approached Lara and told him, "You'll never set up another P.A. system for me again." Shortly after this, Joe Ramirez told Lara that Engelmann told him that he didn't want Lara to help Ramirez take down the P.A. system and that when Ramirez asked Engel- mann "why," Engelmann replied, "You are smart enough to know what he said." About 3:15 p.m. that same af- ternoon, Lara was summoned to the personnel office by Engelmann . Present were Engelmann , Industrial Relations Manager Harvey Klee, and Lara. Lara testified he was un- able to remember what reason Klee gave to him as to the cause for the discipline meted out to him, largely because Klee used legal language that he could not understand, but which related to Lara's help in putting up the P.A. system. Lara does recall that Klee told him that George Engel- mann had recommended 3 days' suspension without pay and that he had more than enough witnesses to verify what Lara had said over the loudspeaker. Lara was given a 3-day disciplinary suspension by Klee, namely March 31 and April 1 and 2.4 Industrial Relations Manager Harvey Klee, who meted out the 3-day suspension to Lara, testified that he was in his office when Lara made the statement over the P.A. system, and he did not hear it. Klee admitted that an affi- davit prepared by a Board agent which he signed contains the following language: On March 27, 1975, I suspended Manny Lara for three days from March 31 to April 2, 1975, inclusive, .for announcing over a public address system, "Don't be afraid, vota para la union." This occurred on March 27, 1975, while the system was being set up for a retire- ment ceremony to take place that afternoon. In explanation of the aforesaid language contained in the signed statement, Klee testified that it was a paraphrase of what he and the Board agent had discussed before there was any typing of the affidavit by the Board agent. Klee testified further what he meant was that Lara was suspend- ed for "shouting out over a microphone and disrupting the company operations." Explaining further, Klee testified that when Lara "shouted over the public address system, it caused a disruption of the Company operations. People were laughing and some employees were wondering how he could do such a thing without the Company taking any corrective action to control his behavior." 5 Klee testified that "it did not matter what he [Zara] said;" he "could care less what was said." Klee testified further that he and George Engelmann "had discussed an immediate termina- tion for the conduct [of Lara] and we felt in consideration of the man's tenure with the company and his otherwise acceptable employment record, that perhaps that would be The General Counsel and the Respondent stipulated that it has been the policy of the Respondent to permit solicitations during working time which do not interfere with work, such as: solicitations for wedding presents for employees, collections for gravestones, raffle tickets, tickets for youth box- ing funds, assistance to kids' clubs, etc. The Respondent asserts that it did not discipline Lara for violating a "no solicitation rule." 5 It is noted that Klee did not personally observe the disruption, but relies on reports made to him by several employees concerning the loudness of Lara's remarks and its effect on employees who heard it. too severe a measure-an oral reprimand or written repri- mand would not be appropriate-we wanted to impress upon Mr. Lara that he couldn't cause the disruption that he has in the factory with impunity." Klee testified that in his opinion, Lara's conduct did not violate the Company's no-solicitation rule. In further explanation Klee testified, "I didn't think it was soliciting anything. He was flaunting his arrogance in the face of management, taunting manage- ment to take some action against him." Testifying further as to the reason for Lara's suspension, Klee testified, "he was suspended for insubordination and conduct detrimental to the best interests of the Compa- ny"-"he went beyond what was necessary to perform the tasks he was directed to do." 6 Department Manager George Engelmann testified credi- bly that after Lara made his loud remarks over the P.A. system, he observed people in the plant making catcalls and laughing and even hollering a little bit and walking over to other people and asking questions. Engelmann tes- tified that this went on for about 10 minutes. Engelmann testified that after the ceremony he learned from employee Alfredo Miranda what Lara had said over the P.A. system. Engelmann testified he also inquired of other employees what Lara had said because, as Engelmann testified, he "thought it was out of line. Because it interrupted produc- tion." Asked "What was out of line?", Engelmann an- swered, "Whatever he [Lara] stated in testing the P.A. sys- tem in that fashion." Engelmann went to Klee's office to talk about the incident and that same afternoon he told Lara that he did not want him to put up the P.A. system or touch it again. Engelmann also told Joe Ramirez, "Don't ever let Manny touch that P.A. system again." Engelmann testified he attended the meeting at which Klee suspended Lara for 3 days. He further testified that at this meeting, Lara was told that he was suspended because "he had disrupted production and had created a problem throughout the plant." Engelmann testified that insubordi- nation might have been mentioned; nothing was said about a no-solicitation rule. Analysis and Conclusionary Finding It is clear that Lara's remarks over the public address system on March 27, 1975, constituted concerted union ac- tivity. Lara's remarks in the heat of the Union's campaign were intended to induce group action by employees within the meaning of Section 7 of the Act. But, granting that Lara engaged in union and concerted activity by his re- marks, his conduct was nevertheless not protected. Insub- ordination or misconduct in the context of concerted activ- ity is not protected. For example, in Bell Federal Savings and Loan Association of Bellevue, 214 NLRB 40 (1974), the Board held that a switchboard operator who disclosed to the union that her employer had received various phone calls from his attorneys was not engaged in activity pro- 6 The parties stipulated that the Respondent had posted notices in the plant urging the employees to vote "No" in the approaching election. The record also shows, without dispute, that the election was held on April 10, and a captive audience speech had been given to assembled employees dur- ing working hours on April 8 for the second shift and April 9 for the first shift. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tected by the Act, and her discharge did not violate the Act, and in J.P. Stevens & Co., 219 NLRB 850 (1975), where employees engaged in a planned course of conduct to disrupt the captive audience speeches in an attempt to turn the meetings into a union forum by asking argumenta- tive questions, their conduct was held unprotected, and their discharge not violative of the Act. See also Hicks Pon- der Company, 168 NLRB 806 (1967). In the instant case , Lara must have appreciated that his use of the public address system to rally employees to vote for the Union in the approaching election was objectiona- ble to management , which was at the same time urging its employees by in-plant posters to vote against the Union. Not by the furthest stretch of the imagination could he have believed that the Employer would permit him to use the public address system which was being set up for the retirement ceremonies , to be used by him to propagandize for the Union. His appropriation of the P.A. system for such a purpose had its effect on the employees. There was hollering, catcalls, laughing, and work disruption which lasted about 10 minutes . It is difficult for me to accept Klee's testimony that it did not matter what Lara said; he "could care less what Lara said." However, I am ready to believe that Klee was chagrined and embarrassed by the reports that came back to him concerning Lara's remarks and their effect on the employees . I fully credit Klee's and Engelmann's testimony that people were laughing and some employees were wondering how Lara could do such a thing without the Respondent taking some corrective ac- tion to control his behavior. I credit Klee's description of his feeling that Lara "was flaunting his arrogance in the face of management , taunting management to take some action against him ." I can understand Klee's testimonial assertion that Lara "was suspended for insubordination and conduct detrimental to the best interests of the Com- pany"-"he went beyond what was necessary to perform the tasks he was directed to do ." Under all the circum- stances, I am convinced and I find that Lara's use of the public address system, without permission and with the certain knowledge that it would be offensive to and embar- rass management , was sufficient to extinguish the protec- tion of Section 7 of the Act. An employee's right to engage in concerted activity must be balanced against the employer's right to maintain order and respect . I am per- suaded that Lara's conduct amounted to deliberate defi- ance of the Respondent's right to maintain order and war- ranted the 3-day disciplinary suspension which, Klee testified , was imposed to impress upon Lara that he couldn't cause the disruption with impunity. The discipline imposed impressed Lara with the distinct message that the public address system was not to be used to propagandize for the Union. The imposition of the discipline was in the Respondent 's legitimate interest in maintaining order and respect. I find, therefore, that the 3-day suspension of Lara did not violate the Act. The Objections to Election The election in Case 21-RC-14031 was held on April 10, 1975, and was won by the Union. Fifty-five votes were cast for the Union, 52 votes against union representation. Two challenged ballots were cast which were not sufficient in number to affect the results of the election . On April 17, 1975, the Employer filed timely objections to the Union's conduct affecting the results of the election , which will be hereinafter considered in the numerical order in which they were set forth. Objection 1 Representatives of the Union engaged in prolonged campaign discussions with employees in the voting line and engaged in other campaigning in the voting area. To support this objection, the Employer called witness David Munoz, a paint shop employee who entered the vot- ing line about 15 minutes after the polls opened at 2:45 p.m. Munoz testified that while he was in the line waiting to vote, he observed employee Lara for a period of about 5 minutes at the side of the line showing employees standing in the line a piece of union literature similar to what he had received in the mail at his home. Although Munoz cannot read English and required a Spanish interpreter at the hearing, he testified he recognized the document as one he had received in the mail at home.' Munoz testified he heard Lara say to employees who were standing near him in the line, "See these other benefits that the Union has." Munoz' testimony in some respects was self-contradictory. Initially he testified that Lara was speaking in English to the people in the voting line, and for that reason he did not understand what he was saying. On cross-examination, however, he testified that Lara was speaking in Spanish to employees Mike Reza, Ron Zubia, and Bob Rivera, but that he did not hear it because, as Lara testified, "I wasn't going to wait to hear all he had to say. The line was march- ing forward and I had to march along with it." Shipping clerk George Ramirez testifed that he was in the voting line behind David Munoz and Lara was on his right side but was not in line. Ramirez testified that Lara was grasping two pieces of union literature which had been brought into the plant that morning and which Ramirez identified as the benefits set forth in Respondent's Exhibit 8. Ramirez testified that Lara was speaking in Spanish but he was not listening to what Lara said. Ramirez testified that employee Bob Rivera took the union handbill from Lara's hand and said, "Look at that. 25 holidays . . . and they laughed." Ramirez testified that Lara was moving, ,.not too far but maybe five, six persons back and forth." However, in an affidavit given to a Board agent (Union's Exh. 3) on April 28, 1975, he said , inter alia, the following: When I arrived in the warehouse, there was a line of about 20 employees waiting, which Munoz and I en- tered, and we stood in line about 5 minutes while it moved to the room where the polling was. After I had been in the line for a minute or so, I observed Manuel Lara standing in the line about three or four employ- ees in front of me; and I saw him talking to the em- 7 This document printed in English was identified in the record as Resp. Exh. 8. In it the Union recited that it was offering outstanding pension plans. dental plans, prescription drug plans, group legal aid plans, sick leave. jury duty, funeral leave , etc., and urged the employees to "Vote Yes Today." MASONEILAN INTERNATIONAL ployees in back of him, between he and me, and also talking to the employees in front of him, between him and the head of the line. . . . I remember hearing someone say: "Don't forget to vote for the Union, you'll get 25 paid holidays," and I remember laughing when I heard this, at the time, because it was a joke. Lara testified that he had procured a copy of the union literature, identified herein as Respondent's Exhibit 8, in the plant on the morning of the election and placed a copy in his back pocket. Lara denied that he displayed a copy of Respondent's Exhibit 8 while he waited in line to vote. Lara testified that in front of him in the line was Mike Reza and behind him was Ron Zubia, a few men back was George Ramirez. Lara testified he did not remember seeing Bob Rivera. Lara testified that while in line he might have talked to Ron Zubia and Mike Reza in English but does not remember what he talked about. Lara testified other people in the line were also talking. Asked by Union's counsel, "Did you stay in line or did you walk around," Lara testified , "I was in line."s Robert Rivera, called as a witness by the Union, testified that Lara was the fourth man ahead of him in the voting line. Rivera testified that Lara was standing in the line and did not talk to him; nor did he remember Lara talking in the line. Disposition of Objection I I have concluded on all of the evidence that Lara, while waiting his turn to vote, like other employees in the line, was discussing the Union's proposed benefits and that there was some joking among the voters about "25 paid holidays." I further find that the Board agent at no time admonished the line of voters to be still. Contrary to the Employer's contention, the Board's rule in Milchem, Inc., 170 NLRB 362 (1968), is not applicable here. This rule, holding that sustained conversation with prospective voters waiting to cast their ballots, regardless of the content of the remarks exchanged, constitutes con- duct which in itself necessitates a second election, applies only to the parties, employer or union, engaging in such sustained conversations. This rule has no application to employees talking among themselves while waiting in line to vote. Lara was not a union representative. He was not even a union member. He is not in the pay of the Union; he was not notified by the Board agent that he was forbid- den from engaging in conversation in the voting line. I agree with the Union's contention that the mere fact that Lara may have conversed in the voting line is insufficient grounds for invalidating the election. See Dumas Brothers 8 An affidavit given to a Board agent on May 12, 1975, shows the follow- ing statement by Lara: While I was standing in the line , I could easily have said to persons near me that I hoped they were going to vote yes. Everyone was talking in the line, and I heard people all around me discussing how they were going to vote or discussing the election. In this same affidavit , Lara stated: After I got in the line , I did not move out of the line from the time I got there until I voted. No one, including the Board agent, told me to stop talking to the employees around me. 971 Manufacturing Company, Inc., 205 NLRB 919 (1973), where the election was not set aside despite an allegation that the Board agent improperly permitted employees to talk while they were waiting in line to vote and to influence others while the voting process was taking place. With Board ap- proval, the Administrative Law Judge said at page 929, "There never has been a rule requiring absolute silence among voters waiting to vote." The fact that Lara attended union organizational meetings and solicited support for the Union does not make him an agent of the Union. See Inter- national Ladies Garment Workers Union (Georgetown Dress Corporation), 214 NLRB 669 (1974); also Bufkor-Pelzner Division, Inc., 197 NLRB 950 (1972). I find that there is no evidence to support Employer's Objection 1 that representatives of the Union engaged in prolonged campaign discussion with employees in the vot- ing line and engaged in other campaigning in the voting. area. I will therefore recommend that Objection 1 be over- ruled. Objection 2 The Union destroyed the laboratory conditions sur- rounding the election by creating or attempting to create a "carnival atmosphere" on election day. . There is no evidence in the record to support this objec- tion. The momentary laughter by one or two employees in connection with a remark by one of them in the voting line about "25 paid holidays," which was intended and under- stood as a joke, did not interfere with the employees' free- dom of choice. Objection 3 The Union made misrepresentations which substantially departed from the truth at a time which prevented the Em- ployer from making an effective reply. The alleged union misrepresentations made to the em- ployees are contained in a letter which the Union mailed to the employees' homes on April 7, 1975. The letter recited in pertinent part as follows: To all employees-Masoneilan International, Inc. The Company has mentioned job security. What about the NC machinist who injured his back at work and was fired while still in the hospital? What about the employee who injured her arm while at work and was let go after two years of loyal service? What about the lathe machinist whose back was in- jured on the job and was terminated after nine years with Masoneilan? What about the machinist on the horizontal mill who was injured on the job, hospitalized for five weeks, and fired the same day he returned to work? What about the bar stock employee with 15 years service with the Company who was fired while re- covering from knee surgery? * You have no security without a union! 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The letter was signed by Mr. Bernard L. Sapiro, the Union's president. Harvey Klee, the Employer's industrial relations direc- tor, first learned of the letter at 11 a.m. April 9, 1975, the day before the election, when he was handed copies of the letter by employees. The Employer was unable to respond specifically concerning each person mentioned in the letter because that person's name was not mentioned in the let- ter. Mr. Klee testified that it was impossible to review each of the Employer's 1,000 personnel folders of terminated employees and 200 folders of active employees in time to make an adequate response to the Union's letter before the election which was scheduled to take place the next day. At about 1:00 p.m. on April 9, Klee posted on the bulle- tin board the following notice to rebut the Union's April 7 letter: No employee has ever been discharged from em- ployment at Masoneilan because of any injury or ill- ness received on or off the job. We challenge the Union to prove otherwise! We know they can't. On the other hand, there are many employees here who suffered long absences because of illnesses or in- juries who are still employed by our company. Ask them! Talk about job-security-what happened to the 32 employees who used to work at Vernon Lighting be- fore the Paper Products Union came in? The Employer did not learn the names of the persons to whom the Union made reference in its April 7 letter until advised by the Board agent who was investigating the Employer's objections to election. With the disclosure of the identity of the persons referred to in the Union's April 7 letter, Mr. Klee examined the personnel files of the em- ployees in question and testified credibly and without ma- terial contradiction the circumstances under which each of the five employees, referred to in the Union's letter, was terminated. With reference to the "NC machinist" who, the Union alleged, injured his back at work and was fired while still in the hospital, it was disclosed that the ex-employee referred to was John Hagen. Klee testified credibly that Hagen suffered from a pinched nerve in his back which was not sustained on the job. Hagen was granted a leave of absence of 3 weeks. This leave was extended twice, eventually totalling 3 months. Hagen was terminated on April 19, 1972, because he was "unable to work because of non-occupational medical rea- sons ." On April 18, 1972, Mr. Klee directed a letter to Hagen advising him that his request for additional leave had been denied, as his recent 3-month leave of absence exhausted whatever leave privileges that may have been available to Hagen . Klee's letter also noted that Hagen had undergone recent surgery. Klee further notified Hagen that his termination was without prejudice and that he would be reconsidered for rehire when he was able to work again and a suitable position was available. Hagen did not re- quest rehire. Beulah Severn was the second employee referred to in the Union's April 7 letter who, the Union stated, "injured her arm while at work and was let go after two years of loyal service." The evidence showed that Severn did not injure her arm but had reported that she had sprained her back at work when she tripped over some material on the floor on January 13, 1971. The physician's report based on x-ray findings indicated an acute lumbar sprain superim- posed on chronic degenerative disease of lumbosacral disc. Severn was given a 2-month medical leave of absence which expired August 15, 1971. A request for a further extension of Severn's leave of absence was denied on Au- gust 6, Mr. Klee advising Severn in the August 6 letter that the Employee Handbook limited her to the 2-month leave of absence that had already been granted. Severn was ter- minated on August 16, 1971, as "unable to resume full duties and unavailability of suitable employment following expiration of a medical leave of absence." Severn was told by Klee in his August 18, 1971, letter to her that "this termination is without prejudice." It developed that the "lathe machinist" who the Union claimed in its April 7, 1975, letter "injured his back on the job and was terminated after nine years with the Employ- er" was Genaro de la Cerda. De la Cerda had been with the Employer since October 2, 1959. He claimed he suffered industrial injuries to his lower back. His last day worked was December 1, 1971. He was granted a medical leave of absence through January 2, 1972; extended again to February 27, and again to June 1, 1972. On May 23, 1972, his leave of absence was extended through January 30, 1972, Wm. E. Brown, M.D., certified that de la Cerda was under his care, hospitalized for back trouble, and "may not return to work for two to three months." On June 1, 1972, the Employer terminated de la Cerda with the explanation, "Former position filled-no available position for employee to return to." The next person referred to in the Union's April 7 letter as a "machinist on the horizontal mill who was injured on the job, hospitalized for five weeks, and fired the same day he returned to work" was finally determined to be one Jonas Zemaitis. Zemaitis began working for the Employer on June 6, 1973. He claimed an injury on June 19, 1973, when, while drilling with an electric drill on a machine, the drill jammed and broke and threw Zemaitis down, injuring the right side of his back and his right leg. The physician diagnosed a "slight sprain of the right trapezius muscles, sprain of right lumbar muscles, but no injury to upper or lower extremities." Zemaitis was granted a medical leave of absence to about July 14, 1973. He returned to work on July 15 or 16 and he reported another injury on July 16, 1973, claiming on this occasion that he had "misjudged step on platform and fell backwards." He was again placed on a medical leave of absence. He was hospitalized and later released as recovered and able to return to work. The Employer then terminated Zemaitis as an "unsafe employ- ee" with an "unsatisfactory probationary period." The last employee described in the Union's April 7 letter as the "bar stock employee with 15 years service who was fired while recovering from knee surgery" was identified as Larry Carnighan, who had been employed by the Employ- er since September 6, 1956. Carnighan had a military-in- curred permanent disability of the knee. While at work January 18, 1973, another employee playfully pushed her MASONEILAN INTERNATIONAL knees to the back of Carnighan's knees, causing them to buckle. A physician's medical report to the Employer stat- ed that Carnighan had a chronic knee problem which will remain with him the rest of his life. He recommended only sedentary work for Carnighan. He was granted a medical leave of absence from February 16, 1973, to August 15, 1973, which was extended to February.16, 1974, and again to July 16, 1974. On July 16, 1974, Carnighan was termi- nated as "unable to return to work at expiration of leave of absence and no position for which the employee is. quali- fied to fill." Klee testified that he spoke to Carnighan in recent months and that Carnighan told him he was still disabled and unable to work. Carnighan is receiving Veter- ans Administration disability benefits. Disposition of Objection 3 I am persuaded, and I find, that Employer's Objection 3 is without merit and that it should be overruled. In each case, except the case of Zemaitis, the record shows that the employee referred to was terminated because he was af- flicted with an injury that was at the time preventing him from returning to work. In the case of Zemaitis, he was terminated even though he was ready to return to work after an injury. The Employer argues that the failure of the Union to mention that these employees had received medical leaves of absence beforehand amounts to a material misrepresen- tation sufficient to overturn the election. Under the cir- cumstances, I do not agree. Initially it is noted that the Employer on April 9, 1975, the day preceding the election, posted a rebuttal notice (Resp. Exh. 12) in the plant stating that "no employee has ever been discharged from employ- ment at Masoneilan because of any injury or illness re- ceived on or off the job." This statement by the Employer, which effectively de- nied the inferences raised by the questions put in the Union's April 7 letter to the employees, in my opinion, constitutes a misrepresentation by the Employer to the em- ployees, and is contradicted by the record which shows that these five employees referred to in the Union's April? letter were in fact terminated because of their injuries on or off the job. Additionally, it should be noted that the employees were able to evaluate the election propaganda of both the Union and the Employer contained in the Union's letter of April 7 and the Employer's preelection notice of April 9 denying the claims made by the Union's April 7 letter. The employ- ees must have been aware of the Employer's medical leave policy set forth in the "Employees Handbook" as well as the Employer's practice of granting medical leaves of ab- sence to fellow employees, including the employees re- ferred to in the Union's April 7 letter. Furthermore, the Union's April 7 letter did not allege, explicitly or by infer- ence, that these employees were not granted a leave of ab- sence prior to their termination. Union President and Director of Organization Bernard Sapiro testified that the April 7, 1975, letter was composed on the basis of a discussion he had with employees at a union organization meeting he conducted on Friday, April 4. Sapiro testified that he received word that on April 2 or 973 3, the Employer posted a notice on its board purportedly quoting a sick leave section in a contract that the Union had with another employer which indicated that "our Union wasn't much good because it didn't get people- guarantee their jobs if they are off or injured." Sapiro testi- fied he then sought information from the employees at this Friday, April 4, meeting on the Employer's policy with re- spect to this. Upon the basis of the information supplied to him by the employees present at the meeting, Sapiro draft- ed the April 7 letter, which the Employer first became aware of on April 9, 1975. Sapiro testified he did not name the employees mentioned in the April? letter as he did not want to cause them embarrassment. In his affidavit to a Board agent made May 15, 1975, Sapiro stated that the Employer obtained a copy of the Union's agreement with a neighboring company and was posting bulletins in the plant from April 2 to 7 "quoting excerpts from that agreement and unfavorably contrasting the policies which the company's personnel manual of- fered." The Employee Handbook (G.C. Exh. 5 in the record) issued by the Employer provides, inter alia, for "medical leaves of absence" and provides further as follows: Under no circumstances may a leave of absence be granted for a period of more than one month for each full, year of continuous employment. Upon returning to work following a leave of absence, an employee may be returned to his formerly held position or any other vacant position for which he is qualified to fill. In the event that no such position exists, the employee will be terminated without prejudice. The record shows that the Union's April 7 letter and the Employer's April 9 notice were part of an ongoing debate between the Union and the Employer concerning the job security which the Union was able to provide by its con- tract with a neighboring employer and the job security cur- rently offered by the Employer without the intervention of a labor organization. The Union could not be expected to state its case in the light most favorable to the Employer and the Employer could not be expected to state its case in the light most favorable to the Union. On the entire record, I am satisfied, and I find, that the Union's April 7 letter was substantially true; that it was based on information supplied by employees of the Em- ployer; that the Employer's April 9 reply was less accurate than the Union's April 7 letter; that the employees were able to evaluate the statements made in the Union's letter; and that the Union's letter did not wrongfully interfere with the employees' freedom of choice in the pending elec- tion. In Hollywood Ceramics Company, Inc., 140 NLRB 221, 223-224 (1962), the Board set forth its policy as follows: We are also aware that absolute precision of state- ment and complete honesty are not always attainable in an election campaign, nor are they expected by the employees. (Celanese Corp. of America, 121 NLRB 303, 306.) Election campaigns are often hotly contest- ed and feelings frequently run high. At such times a party may, in its zeal, overstate its own virtues and the vices of the other without essentially impairing "labo- 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ratory conditions." Recognizing this we have stated that exaggeration , inaccuracies , half truths and name calling, though not condoned, will not be grounds for setting aside elections. Accordingly, in reaching its de- cision in cases where objections to elections have been filed alleging that one party misrepresented certain facts, the Board must balance the right of the employ- ees to an untrammeled choice, and the right of the parties to wage a free and vigorous campaign with all the normal legitimate tools of electioneering. See also United Steelworkers [Luxaire, Inc.] v. N. L. R. B., 393 F.2d 661 (C.A.D.C., 1968); N.L.R.B. v. Allen Manufac- turing Company, Inc., d/b/a Fabuglas Company, 364 F.2d 814, 816 (C.A. 6, 1966); Anchor Manufacturing Company, Division of Basic Products Corp. v. N.L.R.B., 300 F.2d 301, 303 (C.A. 5, 1962). I therefore recommend that Objection 3 be overruled. Objections Nos. 4 and 5 The Union had a supervisor participate as an observer. Said supervisor solicited support on behalf of the Union and was intimately involved in the Union 's campaign. Electric maintenance mechanic Joe Ramirez acted as the Union's observer at the election conducted on April 10, 1975. He also actively solicited support for the Union and was one of the hard-core adherents to the Union. The Em- ployer asserts that Joe Ramirez was a supervisor within the meaning of the Act. The Employer asserts that when a supervisor acts as an election observer or solicits support for the Union, such conduct substantially interferes with the employees ' freedom of choice, requiring that the elec- tion be set aside. Observers It is general Board policy, in the interest of free elec- tions, that persons clearly identified with management may not act as observers. Peabody Engineering Company, 95 NLRB 952, 953 (1951). This is predicated on the likelihood that they will unduly influence the employees to vote against the Union. Worth Food Market Stores, Inc., d/b/a Worth Food Markets, 103 NLRB 259 (1953). The practice, while discouraged, is not forbidden per se, but lies within the sound discretion of the Regional Director . Ray Whit- field Ford, Inc., 169 NLRB 484, 486 (fn.6). Thus where a supervisor served as an observer for the petitioner in. an election where only one union was involved and a majority of the ballots were cast for the union , his presence could not be construed as an endorsement of the union by the employer, particularly in view of the employer's complete statement of position before the election. Plant City Weld- ing and Tank Company, 119 NLRB 131, 132 (1957). See also Owens-Park Lumber Co., 107 NLRB 131 (1953). Aside from the fact that Joe Ramirez , in my opinion, is not a supervisor within the meaning of the Act, there is no reason to conclude that the designation by the Union of Joe Ramirez as an observer , and his service as such , require that the election be set aside. Clearly, Ramirez was not closely associated with management . He was active in soli- citing support for the Union, attended union organiza- tional meetings and identified himself as a member of the amorphous organizing committee. The Employer, however, waged a campaign for a "no union" vote, taking the oppo- site course to Ramirez. It is clear, therefore, and I find, that Ramirez' presence as an observer could not be construed as an endorsement of the Union by the Employer. Nor would I find that Ramirez' prounion solicitation can be construed as a signal to the employees that management was promoting the cause of the Union. Plant City Welding & Tank Company, supra, and Owens-Park Lumber Co., su- pra. The Alleged Status of Joe Ramirez as a Supervisor Agreeing with the Regional Director's Decision and Di- rection of Election which issued February 28, 1975, 1 would find that Joe Ramirez was not a supervisor within the meaning of the Act. I concur with the factual findings of the Regional Director which are set forth in the footnote below .9 In further support of my finding that Ramirez is not a supervisor, I find that he neither possesses nor exer- cises supervisory authority. He is classified by the Employ- er as an electronic maintenance mechanic, whereas all 9 The Employer is a California corporation engaged in the business of manufacturing process controlled valves in Montebello , California. The unit description is in accord with a stipulation of the parties . The Employer, contrary to Petitioner, contends that Joe Ramirez , whom it contends is a maintenance foreman , should be excluded from the unit as a supervisor, a managerial employee, or a technical employee. There is no history of collec- tive bargaining for any of the employees in the petitioned -for unit. The record discloses that Ramirez , who is responsible for the general maintenance of the plant and the installation , maintenance and repair of various types of production and plant machinery , works in the manufactur- ing and engineering department and reports to the manager of that depart- ment . Approximately 80 percent of Ramirez time is spent in the manufac- turing area , and he is assisted by Manny Lara, a maintenance helper. The Employer maintains that Ramirez is Lara's supervisor within the meaning of the Act. The record reveals that Ramirez is officially classified as "electronics maintenance man," and is hourly paid , whereas all other stipulated supervi- sors are salaried . Ramirez' department manager spends 40 percent of his time in the same area as Ramirez , and, although Ramirez decides which repair work to do first, he goes to the manager for "concurrence ." obtains authorization from the manager to work overtime , requests additional help from the manager as needed, and does not leave the company without authorization of the manager . Ramirez can be directed by the manager or by two shop foremen to stop what he is doing and go to another job. Al- though Ramirez has use of an office and telephone which production em- ployees do not, the telephone is assigned to, and used by, the engineering department , and is sometimes answered by Lara. While the record disclosed that Ramirez requested Lara as his helper and gives oral evaluations of Lara's performance to the manager , the record further reveals that Ramirez did not have the authority to transfer Lars to helper, had been occasionally assisted by Lara in the same work prior to Lara's transfer , and did not fill out or sign Lara 's evaluation form . Although Ramirez could request a writ- ten reprimand of Lara , there is no evidence that he has done so or that he has disciplined Lara in any way. The record further reveals that Ramirez relays any request by Lara to leave early to the manager, and that the manager frequently instructs and directs Lara even in the presence of Rami- rez. The record does not show that Ramirez does more than direct Lara to replace lightbulbs , do minor wiring, and assist Ramirez in repairing machin- ery. There is no evidence that Ramirez gives directions to any other employ- ees, whereas stipulated supervisors supervise at least six employees . In these circumstances, and based upon the record as a whole , I conclude that Rami- rez is not a supervisor within the meaning of the Act. UTD Corporation, 165 NLRB 346, 347 (1967); Diana Shops of Washington Slate, Inc., 170 NLRB 698 (1968). MASONEILAN INTERNATIONAL other supervisors are classified either as "supervisor" or "foreman." Ramirez wears a blue coverall uniform as does his helper Lara. But none of the supervisors wear uniforms. The record shows that Ramirez is without authority to hire, fire, lay off or discipline employees or to effectively recom- mend such action; and he has never recommended wage increases, adjusted employee grievances or signed person- nel action forms as a supervisor. Answering inquiries from Engelmann as to how Lara is progressing can hardly be considered the exercise of a supervisory function. He did not attend the disciplinary meeting that resulted in Lara's suspension, and he was not requested by either Engelmann or Klee to make any recommendations for or against disci- pline to Lara. Ramirez did not sign the personnel action forms in connection with Lara's wage raises or his suspen- sion. Englemann signed Lara's suspension notice as Lara's supervisor. Ramirez' relation to Lara is not that of supervisor to employee but as the more senior and skilled employee to his helper. Ramirez' exercise of independent judgment re- lates to the exercise of his skills as a mechanic and not as a supervisor. Engelmann issues orders and directions to both Ramirez and Lara, and Lara regards Engelmann, and not Ramirez, as his supervisor. I agree with the Union's coun- sel that a more skilled employee's direction of his less skilled helper in the performance of routine mechanical work does not make the skilled employee a supervisor. Ar- bie Mineral Feed Co., 182 NLRB 146, 153-154 (1970); Howard Johnson Company, 174 NLRB 1217, 1221-22 (1969); Advance Envelope Manufacturing Company, Inc., 170 NLRB 1459, 1461-65 (1968). I find, therefore, that Employer's Objections 4 and 5 are without merit , and they are therefore overruled. Objection 6 The Union threatened and coerced employees unless the employees worked for, voted for, and/or became and re- mained members of the Union. David Munoz was employed in the paint shop. He had been on friendly terms with Ray Hidalgo, Manuel Lara, and Joe Ramirez, who, at the start of the Union's organiza- tional campaign, in August or September 1974, solicited him on a number of occasions to sign a union authoriza- tion card. Munoz continuously refused to sign a card. He told Hidalgo that he was grateful to the Employer for hir- ing him for a permanent position and he did not want to have problems with the Employer or his fellow employees. In November 1974, employee Ray Hidalgo told Munoz that if he did not sign a union authorization card, he would report him to the Immigration Department.10 Munoz reported this threat to Industrial Relations Di- rector Harvey Klee who filed an unfair labor practice charge against the Union in Case 21-CB-5142 on Novem- ber 25, 1974, alleging union unfair labor practices from October 23, 1974, to the date of the charge. On December 5, 1974, Munoz gave an affidavit to a Board agent in 10 Munoz testified that he is an illegal immigrant. that he does not hold a "green card." and if he is reported to Immigration he will be returned to Mexico. 975 which, among other things, he stated that "about 18, 19, or the 20 of November, 1974, Ray Hidalgo told me that if I did not sign with the Union, that it did not have anything to do with the Immigration Department, but that it would be better if I signed, that if I did not sign I would have problems with them. He said, `We can report you.' " Mu- noz stated in his affidavit to the Board agent that Hidalgo threatened to report him to the U.S. Immigration Depart- ment two or three times a week from November 1974 to the date of his affidavit on December 5, 1974, but always in English. On cross-examination, Munoz testified that pre- viously, when he and Ray Hidalgo were good friends, Hi- dalgo may have jokingly told him in English that he was going to have him deported, but he couldn't understand him quite well. As a consequence of Hidalgo's threat to Munoz, Mr. Klee gave Hidalgo a 5-day disciplinary suspension from January 6 to 10, 1975, Mr. Klee called Hidalgo to his office and told him that he had been informed that he was threat- ening , harassing, and coercing David Munoz, specifically by threatening to report him to Immigration authorities, threatening his life, and calling him dirty and insulting names . Hidalgo remained silent when asked if he had any- thing to say. When Hidalgo returned to work following his 5-day sus- pension, he was angry with Munoz for having reported him to Mr. Klee, and he told Munoz to tell Klee he was going to kill him (Munoz)." It is obvious that at the hearing, Munoz was confused as to events and dates. For example, on cross-examination, contrary to his testimony on direct, Munoz testfied that Hidalgo's threat to kill him came about 1-1/2 months earli- er than Hidalgo's threat to report him to the Immigration Service. Munoz also testified, without contradiction, that Ray Hidalgo and another employee named Jerry shot packing nails at him with a compressed air gun, which was used in the packing department, but did not hit him except on one occasion near the end of 1973 or the beginning of 1974, long before the union organizational campaign started, when he was hit with a nail which caused a slight bleeding of the scalp. Munoz testified that the last time he was shot was in December 1974, after Munoz reported the incident to Mr. Berger, his supervisor, who reprimanded Hidalgo. Analysis and Disposition of Objection 6 Initially, it is observed that the packing nail incidents are too remote from the election, which was held on April 10, 1975, to be seriously considered as a reason for setting aside the election. It is noted, for example, that the incident where a nail struck Munoz' scalp occurred near the end of 1973 or the beginning of 1974, about 1 year prior to the filing of the Union's Petition for Representation on De- ll In his affidavit to a Board agent on February 3, 1975, Munoz reports the above incident as follows: To the best of my recollection, he [Hidalgo] told me, "I know that you told everything. Did Harvey tell you to say that ?" I answered , "No." I did it on my own without anyone telling me anything. I don't want problems with you. Don't go looking for problems. Why bother? Then Hidalgo told me, "O.K., go tell Harvey that I am going to kill you too." 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cember 5, 1974, in Case 21-RC-14031. I am persuaded that the nail shooting incidents were nothing more than a bit of "horseplay" unrelated to the union organizational campaign. In any event, it appears that the nail shooting incidents occurring prior to the filing of the Union's Peti- tion for Representation with Region 21 on December 5, 1974, may not be considered as one of the grounds for setting aside the election . See The Ideal Electric and Manu- facturing Company, 134 NLRB 1275 (1961). Concerning the threat in November 1974 made by Hi- dalgo to report Munoz to the Immigration authorities if he did not sign a union authorization card, it is noted that it may not be considered as a reason for setting aside the election as it occurred prior to the filing of the Union's petition on December 5, 1974. It is doubtful that Munoz seriously considered Hidalgo's threats to report him to the Immigration authorities , inasmuch as Munoz admitted that Hidalgo jokingly made similar remarks in English to have him deported when they were good friends. As the record does not show any threats were made to report Munoz to the Immigration authorities after December 5, 1974, the threats made prior to December 5, 1974, may not consti- tute grounds for setting aside the election. See The Ideal Electric and Manufacturing Company, supra. Hildago's remarks to Munoz in January 1975, after he had returned from the 5-day disciplinary suspension, in the course of which he told Munoz in anger to tell Klee that he, Hidalgo, was going to kill Munoz, did not deter Munoz from voting in the election , nor was it followed by any violence or further threats by Hidalgo. Moreover, aside from the fact that the nail throwing in- cidents and the threat to report Munoz to the Immigration authorities occurred prior to the filing of the petition for representation on December 5, 1974, there is no evidence to show that the Union authorized, sponsored, condoned or ratified the conduct of Hidalgo vis-a-vis Munoz. Hidal- go, like Lara, was not a union representative, employee or agent; he was not in the pay of the Union; he was not directed to mistreat Munoz in any fashion. Indeed, at union organizational meetings with employees, Union President Sapiro admonished the employees to avoid any conduct which might be construed as a threat, and to be friendly to other employees, including employees who were against the Union. In Owens-Corning Fiberglas Corporation, 179 NLRB 219 (1969), in Supplemental Decision and Certification of Rep- resentative at 223, the Board said: The Employer's claim that certain employees, be- cause of their membership in the In-Plant Committee for the Teamsters or because of their activities as elec- tion observers, acted as agents of the Union in threat- ening fellow employees is also without merit. The mere fact that employees prominent in the Union's organizing campaign may have engaged in unlawful conduct, without more, is not sufficient to establish agency. Here there is no evidence that the Union either authorized or condoned any of the questioned conduct. [Citing Electric Wheel Company, Division of the Firestone Tire & Rubber Company, 120 NLRB 1644 (1958).] As to whether the conduct created a general environ- ment of fear and reprisal , the Board said (179 NLRB at 223): ... We are of the opinion that the present conduct was isolated and not sufficiently substantial in nature to create a general environment of fear and reprisal such as to render a free choice of representation im- possible. In International Ladies' Garment Workers Union (George- town Dress Corporation), 214 NLRB 669 (1974), the Board affirmed the rulings, findings, and conclusions of the Ad- ministrative Law Judge who, among other things, held that: In conducting its organizational campaign, the Union relied not only on agents who are in its employ, but also on employees who were formed into an In- plant Organizing Committee. This committee had no formal structure, and membership was open to any employee willing to be known as a member of the committee and to work to enlist support for the Union. Committee members were not paid for any of their services which consisted of soliciting employees to sign authorization cards, to attend Union meetings, or to support and vote for the Union. This activity occurred at the plant, but committee members also visited the homes of fellow employees. . . . Commit- tee members received no expense payments from the Union for any of their activities, but did meet with the Union representatives on occasions when meals were served and paid for by the Union representatives. Certain employees who were members of the com- mittee were known to be such among employees at the plant, and, on at least two occasions, notices were handed out to employees inviting them to Union meetings on which appeared the following: Important to attend In-Plant Organizing Committee I.L.G.W.U. The Administrative Law Judge, with Board approval, held that the Union was not responsible for the conduct of the employee-organizing committee members-alleged to be threats of violence, threats of job loss. In Bufkor-Pelzner Division Inc., 197 NLRB 950 (1972), in finding that the employer's objections to election were without merit and in affirming the TX's (ALJ's) rulings, findings, and conclusions, the Board said: . .. In contrast, here, Faenzi was neither an officer nor an employee of the Union, and indeed was not even a union member at the time in issue. Rather she was acting as an employee in furthering the interests of herself and other employees as she saw them, and we are unable to infer that the Union either author- ized her solicitation activities or ratified the conduct in question. Bronze Alloys Company, 120 NLRB 682, 683-684 (1958). See also Tennessee Plastics, 215 NLRB No. 52 (1974); Cen- tral Photocolor Company, Incorporated, 195 NLRB 839 MASONEILAN INTERNATIONAL 977 (1972); Urban Telephone Corporation, 196 NLRB 23 (1972). I am satisfied, and I find, that none of the conduct here- inabove described, in connection with Hidalgo's threats to Munoz to have him deported, to kill him, or in connection with nail throwing, are attributable to the Union so as to make it responsible for Hidalgo's or any other employee's conduct. Moreover, as I have concluded above, the prepe- tition conduct may not be considered as grounds for set- ting aside the election. I also find, in agreement with the Union, that the threats made by Hidalgo, under all the circumstances, were insub- stantial and isolated. The record does not show that the election was held in a general atmosphere of confusion, acts of violence, and threats of violence such as might be expected to generate anxiety and fear of reprisal, and to render impossible a rational, uncoercive choice of a bar- gaining representative. See Janler Plastic Mold Corporation, 208 NLRB 167 (1974); Southern Paper Box Company, 207 NLRB 86 (1973); Tunica Manufacturing Company, 182 NLRB 729 (1970); Price Brothers Company, 211 NLRB 822 (1974). As I have pointed out above, Hidalgo's conduct vis-a-vis Munoz was too remote in time to have had any appreciable effect upon the election, and all of Hidalgo's conduct, ex- cept the threat to kill Munoz in a fit of anger at having been suspended for 5 days, predated the filing of the peti- tion for representation. Even the threat to Munoz' life oc- curred about 3 months before the election and was not repeated, and no violence occurred. I therefore recommend that Objection 6 be overruled. The Employer's contention that this action by the Board constituted an abuse of discretion because, the Employer asserts, the Board could have allowed the election to pro- ceed as scheduled while still allowing Ramirez to vote sub- ject to challenge, ignores the plain fact that it was essential that the Board have some time, 3 days in this case, to ex- amine the Employer's Request for Review before taking action. Obviously Objection 7 is without merit and there is no showing that it disrupted laboratory conditions sur- rounding the election proceedings. Objection 7 is overruled. Upon the entire record, I therefore make the following: CONCLUSIONS OF LAW 1. Masoneilan International, Inc., herein described as Respondent or as Employer, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By suspending Manuel Lara for 3 days, the Respon- dent did not violate any of the provisions of the Act. 4. The Objections to Conduct Affecting the Results of Election filed by the Employer, and the supporting evi- dence, are not sufficient to overturn the election results. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 Objection 7 The Board's action in postponing the election was an abuse of discretion and disrupted the laboratory conditions surrounding the election proceedings. Upon the issuance of the Regional Director's Decision and Direction of Election, the Employer filed a request for review with the Board in Washington, chiefly on the basis that the Regional Director erred in finding that employee Joe Ramirez was not a supervisor. In order to examine the Employer 's request for review, the Board postponed the election , but 3 days later directed the election to proceed but that Ramirez vote subject to challenge. 1. The complaint is dismissed. 2. The Employer's Objections to Conduct Affecting the Results of Election are overruled and it is recommended that the Union be certified as the exclusive collective-bar- gaining representative of the employees in the unit found appropriate by the Regional Director's Decision and Di- rection of Election. 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto shall be deemed waived for all purposes.