Olimac Mfg. Corp.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1372 (N.L.R.B. 1980)

1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Olimac Manufacturing Corporation and Internation- al Ladies' Garment Workers Union, Local 601, AFL-CIO. Cases 24-CA-4084, 24-CA-4122, 24-CA-4148, and 24-RC-6201 August 27, 1980 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On February 1, 1980, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' recommendations, and conclusions2 of the Admin- istrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Ladies' ' The General Counsel has 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 re- spect to credibility unless the clear preponderance 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 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. In adopting the Administrative Law Judge's finding that the alleged September 20 meetings did not occur, we do not rely on the unsworn statements of Adelaida and Genoveva Cruz as substantive evidence. The Administrative Law Judge's finding was fully supported by other record evidence. The General Counsel has excepted to the Administrative Law Judge's failure to find a violation of Sec 8(a)(1) of he Act on the ground that Respondent's owner, Camilo, admitted in his testimony that he solic- ited grievances after he had been notified of the Union's claim of major- ity status Although the solicitation of grievances was not alleged in the complaint as a separate unfair labor practice, the incident was fully liti- gated at the hearing However, we find that the evidence in the record, when considered as a whole, is insufficient to support the General Coun- sel's contention that Camilo admitted engaging in such unlawful conduct. 251 NLRB No. 182 Garment Workers Union, Local 601, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER JENKINS, dissenting: Although I agree with my colleagues in all other respects, I dissent from their failure to find that Re- spondent violated Section 8(a)(1) of the Act by so- liciting grievances from its employees. Shortly after receiving the Union's demand for recognition in October 1978, Respondent's owner, Camilo, ad- dressed the employees. He told the employees that he prefered that they work with him rather than with the Union, and that they should come to him directly and not go to the Union. I would find that Camilo's statements, following on the heels of the Union's recognition demand, amounted to an unlawful solicitation of the em- ployees' grievances and promised an actual remedy of Respondent's prior failure to communicate with the employees. Accordingly, I would find that Re- spondent coerced employees in violation of Section 8(a)(1) of the Act by its solicitation of employee grievances and its promise to remedy them. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: These consolidated cases were heard at Hato Rey, Puerto Rico, on May 15-18 and 21-25, 1979.1 The charges were filed by the Union on February 6, April 3 (amended April 25), and May 7; complaints were issued on March 28 and May I (amended May 11 and at the trial); and orders consolidating the cases were issued on April 2 and May I and 11, referring the representation case to the Board. The primary issues in the complaint cases are whether the Company, the Respondent, (a) during the Union's organizing drive, unlawfully made threats to close the plant and promises of a medical plan, and unlawfully interrogated employees and gave the im- pression of surveillance of their union activity, and (b) after the election, unlawfully laid off a union supporter, again created the impression of surveillance, and unlaw- fully reaffirmed the promise of a medical plan to dis- suade union support; and whether (c) the Company's conduct precludes the holding of a fair election, necessi- tating a bargaining order to remedy the alleged viola- tions of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. In the representation case, the petition was filed on October 10 and an election (directed by the Regional Di- rector) was conducted on January 31. Excluding 5 chal- lenged ballots (an insufficient number to affect the results of the election), the vote was 10 for and 21 votes against ' All dates are from August 1978 to May 1979 OLIMAC MANUFACTURING CORI'ORATION 1373 union representation. The Union, the Petitioner, filed timely objections on February 6, raising some of the same issues involved in the complaint cases. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and the Company and the arguments made at the hearing, I make the following: FINDINGS OF FACT I. JURISDICTION The Company, a Puerto Rican corporation, is engaged in the manufacture of men's apparel and related products at its plant in Bayamon, Puerto Rico, where it annually receives goods valued in excess of $50,000 directly from outside Puerto Rico. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Operator Esther Rosado obtained some union authori- zation cards on September 7, and she and operator Ana Pastrana began an organizational campaign at the plant on September II11. By September 19, they had succeeded in signing up a majority of the production and mainte- nance employees-obtaining a total of 21 authorization cards among the approximately 36 employees in the bar- gaining unit. The Union held organizing meetings on September 29 and October 9, and four additional em- ployees signed cards by October 11. The Union filed its election petition on October 10. The Company's campaign against the Union included a number of speeches read by Plant Manager Nery Lan- drua to employees at the plant. These speeches, in evi- dence, were not alleged to have been coercive. Howev- er, concerning the other campaigning against the Union, there was much conflicting testimony at the hearing about whether Manager Landrua and Owner Miguel Camilo (the Company's treasurer) made separate speech- es at the plant on the same day early in the union orga- nizing campaign, on September 20. Several union sup- porters testified that in her speech that morning, shortly after the Union's first organizing leaflet (lauding the Union's medical plan) was distributed, Landrua talked about Owner Camilo closing the plant if the Union came in, and giving the employees a medical plan if produc- tion increased. They further testified that Camilo met with employees after lunch that same day. The Company contends, on the other hand, that such meetings did not occur, and that the testimony was fabricated. B. Credibility At the lengthy hearing, there was much conflict be- tween the testimony given by General Counsel's wit- nesses supporting the Union, and the testimony preferred by the Company from antiunion employees and manage- ment. Some of the evidence on each side was obviouslyv false. On the one hand, the Company introduced into evi- dence, through Owner Camilo, a diagram of the plant layout (Resp. Exh. 5), prepared by Manager Landrua, falsely showing the location of the tall button rack which separates the pants and shirt departments. Not realizing that the plant would be visited during the hearing, Lan- drua had located the button rack on the diagram as being directly between the machines operated by "Ana" (Pas- trana) and "Est" (Esther Rosado)-obstructing the view between them-instead of correctly showing that the rack ended a full row to the rear of Pastrana's machine. (Manager Landrua obviously prepared this falsified dia- gram to dispute the General Counsel's evidence that op- erator Pastrana was watching, and overheard the Janu- ary 16 conversation between Landrua and operator Rosado.) When this falsification was revealed during the visit to the plant (as shown on Resp. Exh. 6), Landrua gave discredited testimony that Pastrana's machine had not been located at the same position at the time, but had been moved since the January 16 conversation. (I note that mechanic Angel Luis Sanchez positively testified, that Pastrana's machine had not been moved since De- cember, although he later changed his testimony on redi- rect examination, when he appeared to realize that his earlier testimony would hurt the Company's cause.) Fur- thermore, I discredit as a fabrication, Landrua's claim that although she became aware of the union organizing about September 14 or 15 and spoke to Owner Camilo about 3 or 4 times a week, she did not mention the orga- nizing-and the distribution of union leaflets outside the plant-to Camilo for about a month because his parents were ill. (Landrua claimed that she first told Camilo when he telephone her about the Union's October 10 election petition; whereas Camilo claimed on the stand that he first learned of the union movement when he re- ceived the Union's October 20 letter requesting recogni- tion.) On the other hand, one of General Counsel's wit- nesses, operator Carmen Gloria Garcia, admittedly gave false testimony. In order not to admit that she (then in- volved in a divorce action) had ridden in her boyfriend's car, she denied that Manager Landrua on January 29 dropped her off at a nearby factory where her boyfriend worked, for him to drive her to the judicial center. In- stead, she falsely testified that the boyfriend followed in his car from that factory, and that Landrua her self drove her on to the judicial center, waited for her, and drove her back to the plant about 2 hours later. More- over, after admitting that her testimony was false, and that she had ridden in her boyfriend's car, she gave fur- ther discredited testimony that "I didn't remember it." (I deny the Company's motion to reopen the record to prove that Garcia and her boyfriend were later married.) C. Alleged Prepetition Coercion I. Threats of plant closure Sometime in August, before the union organizing began at the plant on September 11, Owner Miguel 1374 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD Camilo had met with the employees and an- nounced the introduction of production tickets in the pants department, in an effort to increase pro- duction. At that meeting, as on earlier occasions, a question was asked about the Company providing a medical plan. Camilo responded that production was too low and that the Company could not afford it. (Evidently this was the meeting to which operator Margarita Guzman referred in her testi- mony.) Then several weeks later, about the middle of September, Manager Landrua called a meeting and announced that the production tickets would be discontinued because a three-piece "graduation set," requiring an excessive number of tickets, was going to be manufactured. It was in this context that several of General Counsel's witnesses claimed that Manager Landrua and Owner Camilo each held a meeting with the employees on Sep- tember 20 concerning the Union's medical-plan leaflet (G.C. Exh. 14) which they testified was distributed that morning. Union Organizer Esther Rosado testified that, about 7:35 a.m. on September 20, Manager Landrua spoke about some production tickets, stated that if production came out as Owner Miguel Camilo wanted, the employ- ees would get a medical plan and a better salary "be- cause Miguel preferred to close down the factory (Emphasis supplied) before working with a union. Because to work with a union that was hell." (Rosado omitted any refer- ence to a comment about working with a union being hell in her December 28 pretrial affidavit.) On cross-ex- amination, Rosado changed her testimony about plant closure, claiming that Landrua stated that "if the Union was to come into the factory Miguel was closing." (Em- phasis supplied.) Casting doubt that such a meeting was held in September, Rosado testified that Landrua stated that clothes "was coming" with production tickets (something which was announced in August). When called to testify, Organizer Ana Pastrana claimed that Landrua, holding the union leaflet, stated that "if a Union was to come in, Miguel was going to close down"; and on cross-examination the following day, testified that Landrua stated that Owner Miguel Camilo was going to give the employees a medical plan, and "that if the Union came in Miguel would close down the factory." (Emphasis supplied.) She testified that this "was the very first time" Landrua talked about production tickets. Op- erator Benedicta Torres (who falsely denied discussing a certain matter with the General Counsel before he ques- tioned her about it on the stand) claimed that Landrua stated at the meeting that "Miguel would not work with a Union." (Emphasis supplied.) Employee Eusebia Cruz Ortiz testified that Landrua talked about some tickets, about an increase in salary if production improved, and "also said that they had in mind a medical plan," but "if the Union came in Miguel wouldn't mind closing because he did not need the factory to eat." (Emphasis supplied.) Finally operator Carmen Gloria Garcia (who admittedly gave false testimony about another matter testified that Landrua talked about production, then "told us that the Union had distributed some leaflets and if the Union were to come in . . . the owner could close the plant." (Emphasis supplied.) Concerning the purported afternoon meeting, Organiz- er Rosado testified that after the employees returned from the ( 11:30 a.m. to noon) lunch hour, Owner Camilo met with them, said that the meeting was to talk to them about some production tickets which were coming with the work, "not in regard to those papers that were going around," and stated that "we were of legal age and "we knew what we were doing and that he also knew what he was going to do." Organizer Pastrana testified that Camilo "told us not to think that he was going to talk to us about those leaflets that were going around," but about some tickets, and that concerning the rumors about a union, "you are all grown-ups and I don't have to tell you what you have to do," and that "if the Union comes here, I also know what I have to do." She claimed on cross-examination that Camilo also said that the plant was "a small factory and we did not need a union." Op- erator Benedicta Torres testified that at 12 noon, Owner Camilo aaid that he did not give any importance to those leaflets going around, "that we knew what we had to do and he did also," and claimed that after the meeting, Manager Landrua went to her machine and explained that what Camilo meant to say was "that if we brought the union he would close the factory, because he would not work with the Union." (Emphasis supplied.) Em- ployee Eusebia Cruz Ortiz claimed that Camilo, after speaking about production, said "he was not going to talk about those pieces of paper that were going around but that we were adult people and that we knew what we were going to do and that he also knew what he was going to do." She also claimed that later that day at the water fountain, Manager Landrua told her that Camilo meant "that he was going to close down the factory [em- phasis supplied] if the Union came in." (She stated to the contrary in her December 28 pretrial affidavit that aside from the September 20 meeting Landrua never spoke to her about the Union, and she did not mention anything about such a conversation at the water fountain in either her December 28 or February 27 affidavit.) Finally oper- ator Garcia claimed that on that afternoon of September 20, Camilo said he was not going to talk about the Union but about production and stated, "You are all of legal age and you know what you have to do. And I also know what I'm going to do." Then she revealed that this meeting could not have occurred on that date. She testi- fied that later in the afternoon, Landrua "came to my machine where I'm working. I remember I was talking to Margarita Guzman. And (Landrua) told us that what Miguel meant to say when he said was that he could close the plant." (Emphasis supplied.) To the contrary, it is undisputed that operator Guzman was away from the plant from September 2 to about October 2, visiting in Greece during the month of September, and therefore was not present during such a conversation on Septem- ber 20. The complaint in Case 24-CA-4084 alleges that "on or about September 20," Manager Landrua threatened the "employees with plant closure if they became or re- mained members of the Union." The Company contends ()I.IMAC MANUFACIT'RING CORPORATION 1375 that the purported September 20 meetings never took place, and that the testimony by General Counsel's wit- nesses about the meetings is totally false. For a number of reasons, I agree with the Company that the purported September 20 meetings did not occur and that the testimony about Manager Landrua making threats of plant closure to employees at a morning meet- ing and to individual employees following an afternoon meeting was fabricated. Apart from the inconsistencies in the testimony, I note that all five of the witnesses (Rosado, Pastrana, Torres, Ortiz, and Garcia) attended the Union's September 29 and October 9 meetings (each meeting attended by 18 or 19 employees), and nothing was said at either meeting about any threats of plant closure. Organizers Rosado and Pastrana both admittedly kept Business Agent Regino Martinez informed about developments in the campaign, but Martinez heard nothing about Manager Landrua making any threats of plant closure until Octo- ber 18. On that date, operator Adelaida Cruz (a card signer who attended both union meetings) gave him a signed statement that about 7:35 a.m. on the day the Union distributed the medical-plan leaflet, Landrua called a meeting, offered the employees a medical plan and an increase in salary, and said that Owner Camilo was going to close if production was not increased. On that same date, operator Genoveva Cruz (Adelaida's sister) also gave Martinez a note, stating that, when the Union issued the leaflet, Landrua called the employees together around 7:35 a.m. and told them that she could close if she wanted. Thus, not until October 18 (nearly a month after the purported September 20 meetings). did any of the employees inform the Union of any threats of plant closure, and on that date, the information was that Landrua had stated that Owner Camilo was going to close if production was not increased-not if the employ- ees joined the Union-or that she said "she could close if she wanted." (The exact date of September 20 was not fixed until later.) I also note that there was no mention of threats of plant closure in the Union's first (later with- drawn) charge in Case 24-CA-4044, filed on October 20 (alleging unlawful interrogation, giving impression of surveillance, and discriminatory suspension of operators Angie and Nelida OrtizJ. After weighing all of the evidence, I discredit as fabri- cations the testimony by the union organizers, employees Rosado and Pastrana, and by employees Benedicta Torres, Eusebia Cruz Ortiz, and Carmen Gloria Garcia that Manager Landrua and Owner Camilo held the Sep- tember 20 meetings, and find that Landrua did not make threats of plant closure. I therefore find that this allega- tion in the complaint must be dismissed. 2. Interrogation Organizer Pastrana also claimed that around the end of September (after Manager Landrua's purported Septem- ber 20 meeting at which Pastrana falsely testified that Landrua told the employees that the owner would close the factory if the Union came in), Landrua came to her machine, asked "if it was true that the Union was going to come in and I answered yes," and then "asked me if I had signed the union card and I replied yes." Landrua denied this claim and testified that her only conversation with Pastrana about the Union was 2 months later, in November, when Pastrana asked to speak to the owner. as discussed below. Although Pastrana admittedly kept the Union advised of what was happening the Union did not include this purported interrogation in its (later withdrawn) October 20 charge, and first alleged it in the February 6. post- election charge in which the Union also alleged the clo- sure threats. Having discredited as a fabrication Organizer Pas- trana's testimony that Manager Landrua threatened plant closure in a meeting on September 20, and, in the ab- sence of any corroboration, I discredit Pastrana's claim that this interrogation occurred. I therefore find that this allegation in Case 24-CA-4084 must be dismissed. D. Alleged Postpetition Coercion I. Creating impression of surveillance Organizer Pastrana gave further uncorroborated testi- mony that about the end of November, Manager Lan- drua came to her machine, stated "she knew that I was not the one who brought the Union" because Owner Miguel Camilo "got a telephone call and had been given the name" of employee Hilda Santiago and "that same name was given to me." (I consider such a statement most unlikely, in view of the fact that Santiago, a close friend of Landrua, was an antiunion employee who re- fused to sign a union authorization card.) Although Lan- drua elsewhere testified that "The only conversation that I had with Ana Pastrana about the Union was on the oc- casion that she called me [to her machine] to tell me that she wanted to speak to Miguel Camilo," as discussed below, Landrua at one point testified that the Union was discussed when she took Pastrana to her office upon having a problem with Pastrana about moving some ma- chines. Landrua testified that on this occasion, in Octo- ber or November, Pastrana stated that she and Rosado had made themselves responsible for the organizing but "neither one of them had been the one who had brought the Union into the plant" and Landrua "could never imagine who it had been" who brought in the Union. (I consider part of Landrua's version most unlikely. She claimed that, on this occasion, Pastrana told her that at Owner Camilo's August meeting with the employees, Pastrana had union cards in her possession and had in- tended to tell Camilo there was a union movement at the plant. To the contrary, that August meeting was several weeks before Pastrana obtained the first union cards from Organizer Rosado.) Thus, Organizer Pastrana claimed that it was Landrua, and Manager Landrua claimed that it was Pastrana, who stated that Pastrana had not been the employee who brought in the Union. Apparently this subject was men- tioned, but I cannot fully credit either version of what happened. On the one hand, Pastrana (who gave fabri- cated testimony about company meetings on September 20 claimed without corroboration that Landrua made the unlikely statement about hearing that antiunion employee Santiago had brought in the Union. On the other hand, 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Landrua (who falsified the layout of the plant) gave both inconsistent and implausible testimony, and did not im- press me as being a candid witness. Under these circum- stances, I find that the General Counsel has failed to prove by a preponderance of the credible evidence that Landrua created the impression that the Company was engaged in surveillance of employees' union activities, and find that this allegation in the complaint must be dis- missed. The complaint alleges that Manager Landrua again created the impression of surveillance on January 16. It is concerning this conversation, between Landrua and Organizer Rosado, that Landrua prepared the falsified diagram of the plant as discussed above under "Credibil- ity." It is undisputed that Landrua went up to Rosado's machine and talked to her for several minutes in opposi- tion to the employees voting for the Union. Although much of this conversation is in dispute, the only part al- leged to be coercive is the very first part concerning who brought in the Union. Rosado (like Organizer Pas- trana concerning the November conversation discussed above) claimed that Landrua raised the subject, whereas Landrua claimed that Rosado did. In Organizer Rosado's February 27 pretrial affidavit, she claimed that Manager Landrua approached her ma- chine and "told me she knew I had gotten the union in, to get that out of my head, that the one who had done it was calm, and that she knew who had gotten the union in." (Emphasis supplied.) Thus, in this version, Landrua started the conversation without mentioning Organizer Ana Pastrana's name. At the hearing, however, Rosado changed her testimony and claimed that Landrua first spoke, stating "Get that away from your head; that I know that you and Ana didn't call for the, Union" and that the one who did "is sitting very calmly but I know who she is." (Emphasis supplied.) Pastrana testified that she began listening (to the latter part of the conversa- tion) when "I heard my name," and prounion employee Iris Nunez testified that she overheard Landrua start the conversation, telling Rosado, "Listen, take that off your mind, that the one who brought the Union was not you nor Ana Pastrana. The one who brought the Union is seated there very calmly." Landrua, on the other hand, testified that as she was walking by Rosado's machine, she heard Rosado say, "If they think that I am the one who brought the Union they are wrong." Antiunion em- ployee Luz Torres, a company witness, testified that Rosado started the conversation. (I note that on cross-ex- amination earlier in the hearing, Rosado testified that she and Pastrana had told Landrua that Rosado "brought the Union" to the plant, whereas Pastrana testified, "I always blamed myself for that," and although Rosado was the first person to get in touch with the Union, "I was not going to tell on her.") Even though the General Counsel had one witness, employee Nunez, to corroborate Organizer Rosado's ver- sion of how the conversation started, I am not con- vinced. As previously found, Rosado (like Organizer Pastrana) gave fabricated testimony of company meet- ings on September 20, and Rosado changed her version of this January 16 conversation. She belatedly claimed at the hearing, contrary to her pretrial affidavit, that Man- ager Landrua began the conversation mentioning the name of Ana Pastrana, and this is the version which Nunez corroborated. (According to Landrua, Rosado spoke first and Pastrana's name was mentioned after- wards. Pastrana did not hear any of the first part of the conversation after hearing her name.) I therefore discred- it the testimony given by Rosado and Nunez about how the conversation began, and find that the allegation in the complaint that Landrua on this occasion again cre- ated the impression of union surveillance must be dis- missed. 2. Promises of medical plan a. By Manager Landrua The complaint alleges in Case 24-CA-4084 that "In or about December," Manager Landrua "promised an em- ployee [Organizer Ana Pastrana], in the presence of other employees," and thereafter promised "another em- ployee [trimmer Iris Nunez] individually," a medical plan if the employees would abandon the Union. Organizer Pastrana did not give any testimony on direct examination to support the first part of this allega- tion. On cross-examination, when asked if she told Man- ager Landrua between September and December that she wanted to speak to Owner Camilo about no longer supporting the Union if he would offer a medical plan, Pastrana testified that Landrua "was the one that pro- posed that to me, for me to talk to Miguel Camilo and for me to talk also with the women and I said that I would talk with the women but I did not. I turned around and I told her that the women wanted the Union." Later as a defense witness, Landrua testified that in November Pastrana had in fact asked to speak to Camilo and had stated that if Camilo would promise not to fire anyone for 5 years and offer her benefits, she would speak to her coworkers about withdrawing from the Union; "I told her that we couldn't promise any- thing" but she could speak to Camilo; and after Pastrana talked to some of her coworkers, she returned and told Landrua some of them were not in agreement. (When asked whether she told Landrua she wanted a 5-year guarantee against firing, Pastrana did not deny it, re- sponding that that was why the employees wanted a Union, inasmuch as Landrua fires employees at will.) Having found that other testimony given by Pastrana was fabricated, I discredit her uncorroborated version of the conversation and find that the allegation must be dis- missed. Trimmer Iris Nunez, the prounion employee who testi- mony was discredited above, testified that 2 weeks before theJanuary 31 election (not "In or about Decem- ber" as alleged), Manager Landrua spoke to her alone at her trimming table and "said that if we would forget about the Union Miguel [Camilo] would give us a medical plan and that if we were sick 2 or 3 days he would pay for one or one and a half days or 2 days, sick leave." (Em- phasis supplied.) However, in paragraph 7 of her Febru- ary pretrial affidavit, Nunez stated that "about a month" before the election, Landrua came to her table and "told me that if [we] thought well of what we were going to OLIMAC MANUFACTURING CORPORATION 1 377 do the company might give us a medical plan. By this I understood that in order to have a medical plan I would have to forget about the Union." (Emphasis supplied.) Landrua denied that she talked with Nunez either in De- cember or 2 weeks before the election, and denied talk- ing with her about a medical plan or sick leave. Because of the conflict between Nunez' testimony (of definite promises "if we would forget the Union") and her pre- trial affidavit (that "I understood .... I would have to forget about the Union" and then the Company "might" give a medical plan), because of her giving other discred- ited testimony, and in the absence of other credible evi- dence that Landrua promised a medical plan before the election, I discredit her testimony that Landrua promised a medical plan or sick leave and find that this part of the allegation must also be dismissed. b. By Supervisor Hernandez The complaint also alleges that Supervisor Edith Her- nandez promised an employee (Benedicta Torres) about January 25 a medical plan and uninterrupted full-time employment, and on January 31 a medical plan, to re- frain from supporting the Union. Torres, one of the five employees found to have given fabricated testimony about company meetings on September 20, claimed that on January 25 or 26 when Hernandez was attempting to dissuade her union support (telling her she was the only one who was not convinced to vote for the Company and that Owner Camilo had promised not to punish anyone for supporting the Union), Hernandez stated that Camilo "promised us a medical plan and . . . a lot of work." She also testified that on January 31, Hernandez told her to remember "what we spoke [about] the other day, that you are the only one that is left to be con- vinced; we cannot let Miguel down; we have to vote for him." Hernandez, who denied both conversations, had been instructed (along with Supervisor Gloria Vega) not to make any promises to employees during the election campaign, and there is no other testimony that she did. Although Hernandez did not impress me as being a forthright witness and although I do not doubt that she was campaigning against the Union, I consider Benedicta Torres' uncorroborated testimony (because of her other discredited testimony) to be insufficient as a basis for finding that Hernandez made the promises of a medical plan and full-time employment. I therefore find that these allegations in the complaint must also be dismissed. 3. Interrogation The only testimony about interrogation between the time of the filing of the October 10 petition and the hold- ing of the January 31 election was given by employees Carmen Gloria Garcia and Eusebia Cruz Ortiz. both of whom gave fabricated testimony about company meet- ings on September 20. Operator Garcia, who admittedly gave false testimony that Manager Landrua drove her all the way to the judi- cial center on January 29 rather than dropping her off at a nearby factory for her boyfriend to drive her there (as discussed under "Credibility" above), claimed on direct examination that when she got into Landrua's car, Lan- drua "asked me for whom I was going to vote"; "I an- swered that I knew for whom I was going to vote"; and Landrua said, "Don't vote for the Union, vote for the Company." On cross-examination, she gave a different version, claiming that Landrua asked her three times how she was going to vote. When asked why there was no mention of this interrogation in her February 26 pretrial affidavit, she claimed she "forgot" it. I discredit this be- lated (and denied) testimony about the purported interro- gation and find that the allegation must be dismissed. Employee Ortiz' claim of interrogation was also belat- ed-not being mentioned in her February 27 affidavit and not alleged in the amended complaint in Case 24- CA-4148 until May II. Ortiz testified that about 2 weeks before the January 31 election (not on January 29 as al- leged in the amended complaint), Manager Landrua ap- proached her and asked "for whom I was going to vote." Having found that Ortiz fabricated other testimo- ny and there being no other credible testimony that Lan- drua interrogated any of the employees, I find that this belated (and denied) claim of interrogation was also fab- ricated and that the allegation must be dismissed. E. Alleged Postelection Coercion 1. Reaffirmed promise of medical plan About the first week in March some antiunion employ- ees met with Manager Landrua and one of them inquired if the Company would be offering them a medical plan following the Union's defeat in the January 31 election. Thereafter Landrua called a meeting of all of the em- ployees, explained that the Company did not know whether the Union had won or lost because of the three charges filed by the Union, and stated that nothing could be done at that time. The complaint in Case 24-CA-4122 alleges that Man- ager Landrua "reaffirmed" the Company's "promise to grant its employees a medical plan" if they abandoned their union support. In so contending, the General Coun- sel relies on the above-discredited testimony that the Company had offered a medical plan before the election, and relies on testimony of Esther Rosado, Ana Pastrana, Benedicta Torres, Eusebia Cruz Ortiz, and Carmen Gloria Garcia (the five employees found above to have given fabricated testimony about company meetings on September 20) and another employee, operator Teresita Torres (who falsely testified that nobody had ever asked her about this March meeting before she testified about it on the stand), to the effect that the Company had al- ready selected a medical plan but was not implementing it until the Union was defeated. Rosado claimed that Landrua announced that the meeting was called because of questions "about the medical plan that we were going to get if the Union lost," and according to Benedicta Torres, "about the medical plan that they had offered." (Emphasis supplied.) Benedicta Torres testified that Landrua said "the medical plan is at the office"; Teresita Torres testi- fied that Landrua "took out some papers and she said that that was the medical plan"; and Rosado, Pastrana, Ortiz, and Garcia claimed that Landrua left the meeting and returned with what she said was the medical plan. 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rosado, Pastrana, Ortiz, and Teresita Torres-but not Benedicta Torres or Garcia-claimed that Landrua stated the medical plan would cost the Company $20 and the employees $20; and Teresita Torres and Garcia claimed Landrua stated that she could not say anything else because the Union was still "pestering." To the con- trary, I credit the denials that anything was said about the cost of a medical plan, that a medical plan had been selected, and that Landrua held a medical plan in her hand, or said it was in the office, or went to the office to get it. I find that there was no reaffirmation of a preelection offer of a medical plan, and further find that Manager Landrua's statement that nothing could be done at the time about a medical plan was not a promise to offer a medical plan if the employees would abandon their union support. The allegation therefore must be dismissed. 2. Creating impression of surveillance On April 3, the Union filed the charge in Case 24- CA-4122. Two of the employees named in the charge were Carmen Gloria Garcia and Teresita Torres (who were alleged to have been discriminatorily laid off; this allegation was dropped when the amended charge was filed on April 25). Sometime later, as Organizer Pastrana credibly testified (contrary to Landrua's denials), Man- ager Landrua went to her machine and said, "Ana, we have another charge at the Board." Pastrana replied, "Don't say that it is Esther Rosado [the other union or- ganizer] and Ana Pastrana who are filing the charges," and told Landrua she knew how Landrua had learned who were at the Board's Regional Office, filing the charges. She told Landrua, "lIt so happens" that the per- sons who were at the Regional Office filing the charge overheard the Board receptionist paging Field Examiner Martinez Pou, announcing over the intercom, "Nery Landrua of Olimac is calling you." Landrua then ac- knowledged that she had telephoned Pou, telling Pas- trana, "Yes, they told me right away who had placed the charges . . . Carmen Gloria and Teresita Torres." The amended complaint in Case 24-CA-4122 alleges that Manager Landrua thereby created the impression that the Company was engaging in surveillance of em- ployees' union activities by informing an employee (Pas- trana) that it was aware that two named employees had visited the Board offices and had assisted in filing of the charge. However, Organizer Pastrana's testimony is clear that Landrua indicated that she had received the infor- mation from the Board agent, not that she was engaging in surveillance of the employees' union activities. I there- fore find that the allegation must be dismissed. 3. Discriminatory discharge On Thursday, May 3 (12 days before the beginning of the hearing), Supervisor Gloria Vega informed operator Garcia and five or six other employees that they were laid off on Friday and Monday, and to return to work on Tuesday, May 8. Relying on Garcia's testimony, the General Counsel contends that Garcia was discriminator- ily laid off in violation of Section 8(a)(3) and (1) of the Act. Garcia (who admittedly gave false testimony, who gave fabricated testimony about meetings on September 20, and who gave much other discredited testimony) claimed it was Manager Landrua, not Supervisor Vega, who laid her off, telling her, "You go until I call you back because you did not want to talk to the [company] attorney." (After being told by the attorney the day before that she was not required to give him information about the issues in this proceeding, she had refused to do so.) She also claimed that after being suspended, she told employees Ana Pastrana, Iris Nunez, and Eusebia Cruz Ortiz about the conversation with Landrua, but none of those witnesses corroborated this claim. To the contrary, Supervisor Vega credibly testified that she had gotten the list of layoffs from Landrua and had told Garcia and the others about the shortage of work and that they were being laid off 2 days. I discredit Garcia's uncorro- borated testimony and find that the General Counsel has failed to prove that Garcia was discriminatorily laid off. F. Alleged Unlawsful Refusal To Bargain On October 20, the Union informed the Company of its majority status in a unit of production and mainte- nance employees, offered to go to a card check, and de- manded recognition. (On the same day, the Union filed the later-withdrawn charge in Case 24-CA-4044, and a motion to proceed in the representation case in which it had filed its election petition on October 10.) The Com- pany received the Union's letter of October 21 and an- swered it on October 25, refusing the recognition request and suggesting that an election would be a more reliable means of determining majority status than authorization cards. The amended complaint in Case 24-CA-4084 alleges that on September 19 the Union represented a majority of the employees in the admitted appropriate unit; that the Company's unlawful conduct, engaged in to destroy the Union's majority, precludes the holding of a fair rerun election; and that since on or about October 20, the Company has unlawfully refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. Having found that the General Counsel has failed to prove any of the other alleged unfair labor practices, I find that there is no basis for finding an unlawful refusal to bargain or for issuing a bargaining order under the criteria established in .L.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969). 1 therefore find that this allega- tion must also be dismissed. 111. REPRESENTATION PROCELDIN(G Following the filing of the petition on October 10, the filing of the motion to proceed on October 20, and the directing of the election on December 12, the election was held on January 31 in an admittedly appropriate unit of "All production and maintenance employees em- ployed by the Employer at its factory located at Baya- mon, Puerto Rico, but excluding all professional, techni- cal and office clerical employees, managerial personnel, guards and supervisors as defined in the Act." The vote was 21 for and 31 against the Union, with 5 challenged ballots. OLIMAC MANLUFACTURING CORPORATION 1379 On February 6, the Union filed timely objections to conduct affecting the results of the election. Excluding Objections 5 and 6 which were withdrawn at the hear- ing, the objections alleged repeated interrogation, prom- ises of a medical plan and wage increases, threats of plant closing, and creating the impression of surveil- lance-all based on testimony which has been discredited above or on conduct found not to be coercive-and also alleged statements (by Manager Landrua to Organizer Rosado on January 16), some of which were based on discredited testimony, and others of which were not al- leged to be violations of Section 8(a)(l) of the Act and which I find were not coercive. Finding no merit to these remaining objections, and in view of the represen- tation case being transferred to and continued before the Board in the Acting Regional Director's April 2 consoli- dation order, I overrule them and find that the results of the election must be certified. CONCI USIONS OF LAW 1. The General Counsel has failed to prove by a pre- ponderance of the credible evidence any of the alleged violations of Section 8(a)(1), (3), and (5) of the Act. 2. None of the Company's conduct alleged in the elec- tion objections interfered with the employees' free and untrammeled choice of representation. Upon the fioregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 2 The consolidated complaints are dismissed in their en- tirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid bal- lots cast in the election held on January 31, 1979, has not been cast for International Ladies' Garment Workers Union, Local 601, AFL-CIO, and that the labor organi- zation is not the exclusive representative of all the em- ployees, in the unit herein involved, within the meaning of Section 9 (a) of the National Labor Relations Act. I2 n the e erlt no exceptions are filed as provided by Sec 12 46 of the Rules and Regulations of the National Labor Relations Board. the find- ings, conclusions, and recommended Order herein shall. as prosilded in Sec It12 48 of the Rules and Regulations. be adopted b the Board and become Its findings. conclusions. and Order, and all ohiectlins thereto shall he deemed S\aled fr 1ll purposes