Albert Trostel Packings, Ltd

National Labor Relations Board - Board Decisions

May 4, 1977

229 N.L.R.B. 436 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Albert Trostel Packings, Ltd. and Industrial Workers
Union, Local No. 8, affiliated with the Laborers'
International Union of North America, AFL-CIO,
Petitioner. Case 30-RC-2889
May 4, 1977
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the Employer's objec-
tions to an election held on August 20, 1976,1 and the
Regional Director's report recommending disposi-
tion of same. The Board has reviewed the record in
light of the Employer's exceptions and brief, and
hereby adopts the Regional Director's findings and
recommendations.
The Employer filed two objections to the election,
both of which the Regional Director recommended
overruling. We agree. 2
In its Objection 1,3 the Employer objected to the
conduct of one employee who told two other
employees that the Petitioner paid him (Pohle) and
another member of the in-plant organizing commit-
tee (Mohr) $1,000 for "pushing the Union." 4 The
Employer averred that the "payment" constituted an
unreasonable and excessive economic inducement
and also represented an undue influence on other
employees by creating an impression of financial
gain for union support. We conclude otherwise for
the following reasons as well as those set forth by the
Regional Director, with the exception noted below.
No evidence was presented or disclosed to show
that Pohle, Mohr, or any other employee was either
promised or paid any money by Petitioner. Thus, as
stated by the Regional Director, the cases relied on
by the Employer where there was an economic
inducement or promise thereof are inapposite here.
Further, the statement by Pohle that he received
$1,000 was made to only two employees, who were
believed to be anti-Petitioner, as a way of "rubbing
in" what was felt would be their disappointment if
the Union won. As found by the Regional Director,
I The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 127 for, and 112 against, the
Petitioner: there was I void ballot and no challenged ballots.
2 Member Walther agrees that Objection 2 should be overruled. As set
forth in his separate dissenting opinion, however, he would sustain
Objection I and direct a second election.
I The relevant portion of the Regional Director's report commenting on
this objection is attached to this Decision as an appendix.
4 The Regional Director found that employee-members of the organizing
229 NLRB No. 56
this would antagonize these two employees, rather
than induce them to vote for Petitioner.
The Regional Director found that rumors did
circulate among employees that Pohle and Mohr
received money for their efforts on behalf of
Petitioner. While discussion of the rumor by Pohle
and Mohr with other employees was not isolated,5 it
is clear that both Pohle and Mohr denied the rumor
whenever they were asked about it in a serious
manner, and responded jokingly to employees
whenever they were asked about the rumor in a
jocular vein. Accordingly, there is no basis for
finding, as our dissenting colleague does, that Pohle
and Mohr fostered the rumor.
In sum, we agree with the Regional Director that
the Employer's objections are not meritorious. We
will therefore certify the Petitioner as the exclusive
representative of the employees in the unit found
appropriate.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Industrial Workers Union,
Local No. 8, affiliated with the Laborers' Interna-
tional Union of North America, AFL-CIO, and that,
pursuant to Section 9(a) of the National Labor
Relations Act, as amended, said labor 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, or other conditions of
employment:
All production and maintenance employees,
including plant clerical employees, of the Em-
ployer at its 901 Maxwell Street, Lake Geneva,
Wisconsin location; but excluding office clerical
employees, professional employees, managerial
employees, technical employees, guards and
supervisors as defined in the Act.
MEMBER WALTHER, dissenting:
I do not agree that Objection I is unmeritorious.
The Regional Director found that there was no
evidence to show that Pohle or Mohr was either
promised or paid any money by Petitioner. He
found, however, that rumors that they were so paid
did circulate among the employees during the
campaign and that Pohle and Mohr were queried by
committee acted as agents of Petitioner dunng the campaign. According to
the two employees addressed, Pohle further told them that he and Mohr
would be paid an additional $ 1,000 if Petitioner won the election.
5 This is the one respect in which we differ with the Regional Director on
this objection for he found Pohle's statement isolated. To the extent this
could be taken to mean discussion of the statement was isolated, we disagree
with the Regional Director but this disagreement does not negate our
reliance on the Regional Director's other findings and on his overall
recommendation herein.
436
ALBERT TROSTEL PACKINGS, LTD.
fellow employees about the rumor. At times the two
denied receiving money and at other times, when
asked about it in an allegedly jocular manner, they
responded allegedly jokingly, without denying the
rumor but instead indicating its validity. For exam-
ple, they indicated that they had been "looking at a
new Monte Carlo." Also, to at least the two
employees noted above, who were considered anti-
union, Pohle himself volunteered the rumor as a way
of "rubbing in" what was felt would be disappoint-
ment by those employees at an impending union
victory. The Regional Director concluded that the
probable impact upon those who had the rumor
"rubbed in" would have been anti-Petitioner in
effect. Further concluding that the Pohle remark to
the two employees was isolated in nature and that
there was no evidence of actual economic induce-
ment by Petitioner, the Regional Director concluded
that there was no merit to the Employer's objection.
As stated, I disagree. It is clear that if Pohle or
Mohr received even the first $1,000 this would
constitute an excessive payment for whatever servic-
es they may have rendered Petitioner.6 While there is
no evidence either way as to whether or not the two
actually received the $1,000, it is clear, although my
colleagues in the majority are unwillingly to so find,
that, acting as agents of Petitioner, they fostered the
rumor that they did indeed receive money. This
rumor was clearly widespread at the Employer's
plant. Unlike the Regional Director, I find the
fostering of the rumor by Petitioner's agents as
objectionable as the payment itself. For, while the
rumored payment may have antagonized some, as
the Regional Director reasoned, it could just as easily
have persuaded others that similar extraordinary
payments could be had by those who supported
Petitioner, and could have therefore served as an
inducement to vote for Petitioner. Under these
circumstances, I would set aside the election and
order that a new election be held.
i See, e.g., Teletype Corporation, 122 NLRB 1594 (1959); Collins d
Aikman Corporation, 160 NLRB 1750 (1966). enfd. 383 F.2d 722 (C.A. 4,
1967).
APPENDIX
Objection No. I
In support of this objection, the Employer offered
the testimony of two employees, Marie Voss and
Patti Jo Sumner. They testified that on August 19,
Organizing Committeeman 2 Jack Pohle, told them
that he and another committeeman, Dan Mohr, each
received $1,000 for working on Petitioner's behalf
and would each receive an additional $1,000 should
Petitioner win the election. Pohle admits telling Voss
2 It is clear that employee members of the Organizing Committee acted
as agents of Petitioner during the campaign and Petitioner does not contend
otherwise.
and Sumner that he and Mohr each received $1,000
for "pushing the Union," but he did not recall telling
them he and Mohr would each receive an additional
$1,000.
With respect to that part of this objection alleging
that Pohle's statement was circulated among employ-
ees, Voss and Sumner testified that they made and
kept a pact not to repeat to their coworkers what
Pohle had told them. Investigation, however, dis-
closed that rumors to the effect that Pohle and Mohr
had received money for their efforts on behalf of
Petitioner did circulate among employees during the
campaign.
Investigation further disclosed that Pohle and
Mohr were faced with just such rumors by their
coworkers on several occasions both before and after
the election. It was in response to the rumors that
Pohle approached Voss and Sumner on August 19.
Pohle testified that he said what he did to Voss and
Sumner as a joke, in a teasing yet ostensibly serious
way, because he believed them to be anti-Petitioner,
and he wanted to "rub-in" what he felt would be
their disappointment resulting from a victory by
Petitioner at the upcoming election. The rumors
came to Pohle and Mohr most often in the form of
questions from their coworkers. Questions were
asked such as, "What are you getting out of this?" or
"What are you going to do with the $1,000?" Pohle
and Mohr tailored their response to suit the tone of
the questioner. If the inquiry was made in a serious
way, the response would be a denial of the rumor. If
the question was asked as a joke, the in-kind
response might be, "Ive been looking at a new Monte
Carlo." Of the several employees interviewed in this
regard, only Voss and Sumner gave substance to the
rumors as a result of a response from either Pohle or
Mohr. There was no evidence that either Pohle or
Mohr told anyone other than Voss and Sumner that
they, or any other employee, had or would receive
money from Petitioner.
In the statement filed in support of Objection I, the
Employer relies on the following cases: General
Cable Corp., 170 NLRB 1682; Teletype Corp., 122
NLRB 1594; Collins & Aikman Corp. v. N.L.R.B.,
383 F.2d 722; Plastic Masters, Inc. v. N.LR.B., 512
F.2d 449; and N.L.R.B. v. Savair Mfg. Co., 414 U.S.
270, 279, fn. 6 (1973). In the above-listed cases, the
common thread of violative conduct was promising
or conferring of economic inducement. In the instant
case, no evidence was presented or uncovered to
show that Pohle, Mohr or any other employee was
either promised or paid money by Petitioner.
Therefore, I find those cases relied on by the
Employer to be inappropriate and distinguishable
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here. As to Pohle's statement to Voss and Sumner, it
appears that its net effect would have been to
antagonize these two known antiunion adherents.
Under such circumstances, it would have been
unreasonable for Voss and Sumner to interpret
Pohle's statement as an inducement to vote for the
Petitioner. Therefore, I find the reliance on the
above-cited cases misplaced.
It is most unlikely that the impact of Pohle's
statement interfered with the free choice of the
voters. By all accounts, Pohle's statement was made
to only two employees, only one of whom was
eligible to vote,3 in a unit of approximately 260, and
it was not repeated. Furthermore, Pohle's interest
does not appear to be one of offering inducement, a
3 Voss was hired subsequent to the eligibility date of July 16, and as a
consequence, she was not eligible to vote.
proposition supported by the manner in which he
and Mohr handled the rumors. If there was any
calculation on Pohle's part, it was that the talk of
being recompensed for his campaign service would
inspire resentment among Voss and Sumner. This
would chill, rather than encourage, their support for
the Union.
Based on the foregoing, particularly the isolated
nature of Pohle's statement and the probable
negative impact that statement and the rumors had
on Petitioner's chances, I conclude that the conduct
here objected to was without prejudice to the
Employer. Accordingly, I shall recommend that it be
overruled.
438