Bauer Welding

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1416 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bauer Welding and Metal Fabricators, Inc. and Dis-
trict Lodge No. 77, International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 18-CA-6957
29 February 1984
SUPPLEMENTAL DECISION AND
ORDER
By MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 19 May 1983 Administrative Law Judge
Robert A. Giannasi issued the attached supplemen-
tal decision on remand. The Respondent filed ex-
ceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and record in light of the exceptions and brief
and has decided to affirm the judge's rulings, find-
ings,' and conclusions. 2
ORDER
The National Labor Relations Board hereby re-
affirms its Order previously issued on 18 May 1981,
and orders that the Respondent, Bauer Welding
and Metal Fabricators, Inc., Mounds View, Minne-
sota, its officers, agents, successors, and assigns,
shall take the action set forth in the original Deci-
sion and Order in this proceeding (256 NLRB 39
(1981)).
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
I We adopt the judge's conclusions that the several incidents of alleged
coercion did not interfere with employee free choice in the election. In
so doing, we emphasize that, while we do not condone conduct of the
type described in the objections, we find that in the totality of the cir-
cumstances here such conduct is insufficient to warrant setting aside the
election. In agreeing with the judge that the parking lot incident involv-
ing employee Philippi did not constitute objectionable conduct, Members
Hunter and Dennis find it unnecessary to rely on the judge's discussion
of agency but rely solely on his finding that the incident in any event was
isolated and remote in time.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge:
This case was tried in Minneapolis, Minnesota, on De-
cember 14, 1982, pursuant to an order of the Board dated
September 17, 1982, directing a hearing required by the
United States Court of Appeals for the Eighth Circuit.
On April 28, 1982, the court of appeals, one judge dis-
senting, issued a decision' denying enforcement of a
Board order 2 finding that Respondent had violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain
with the Charging Party Union (the Union) which had
been certified by the Board as having won a representa-
tion election. The certification was dated August 26,
1980, and the Board's bargaining order was dated May
18, 1981. The court considered Respondent's objections
to the election, which had been rejected without a hear-
ing, and remanded the proceeding to the Board for "an
evidentiary hearing on the coercion and misstatement
issues only."
The first issue remanded for hearing involves a two-
page handout distributed by the Union to Respondent's
employees. The first page of the handout, after warning
that employers typically resort to threats to discourage
unionization, stated as follows:
On the next page you will find a reproduction of a
letter signed by a Chairman of the NATIONAL
LABOR RELATIONS BOARD. Please note (in
the second paragraph) that an employer cannot
close down the plant because the Union has estab-
lished its majority status and bargaining rights.
Further, please note that an employer cannot
reduce wages or take away benefits such as insur-
ance and pensions. DON'T BE FOOLED BY
COMPANY RUMORS!!! [Emphasis in original.]
The second page of the handout was a copy of a
letter, dated July 22, 1964, written by then Board Chair-
man Frank McCulloch which stated as follows:
As a general proposition, an employer cannot
reduce wages or take away any insurance or other
benefits, or close down the plant because the union
has eatablished its majority status and bargaining
rights. Neither can he threaten to do so if the union
wins an election. Such conduct would be in direct
contravention of the underlying principles of the
National Labor Relations Act, which our Board en-
forces. [Emphasis deleted.]
The court rejected the contention that the statements
concerning the closing of the plant were misrepresenta-
tions but held that the unqualified statement that "an em-
ployer cannot reduce wages or take away benefits" was
"not an accurate statement of the law," because such re-
ductions are permissible where they are the result of
good-faith bargaining and no mention of this possibility
appeared in the handout or the letter. The court ordered
a hearing on the materiality of the "misstatement" as
well as the opportunity of Respondent to rebut it.
The court also directed a hearing on certain issues of
alleged coercion raised by Respondent, specifically
whether the election was tainted by the Union's mailing
of letters to supervisors erroneously advising them that
violations of the Act could lead to criminal penalties and
i 676 F.2d 314 (1982).
2 256 NLRB 39 (1981).
268 NLRB No. 216
1416
BAUER WELDING
by alleged threats to an employee by another prounion
employee concerning the signing of a union authoriza-
tion card. The court also ordered a hearing "on the
other alleged incidents of coercion."
Based on the entire record in this proceeding and the
briefs of the parties, and giving full consideration to the
demeanor of the witnesses who testified herein and the
manner in which they testified, I find and conclude that
the alleged misconduct did not preclude a fair and free
election and therefore the election of March 20, 1980,
was valid. In support thereof, I make the following
FINDINGS OF FACT
I. THE UNION HANDOUT
The union handout specifically under consideration
herein was either the first or one of the first distributed
by the Union in its campaign. It was distributed in mid-
January 1980, according to Respondent's then personnel
manager, Thomas Kranz. The handout will be referred
to by its apparent title, the "Bombs Away" handout. The
election itself was held on March 20, 1980. The Union
won the election by a vote of 32 to 20. There were no
challenged ballots.
At the time of the decisions of the Board and the
Court, the applicable legal principle was the so-called
Hollywood Ceramics rule. Hollywood Ceramics Co., 140
NLRB 221 (1962), reaffirmed, after an intervening turn
of policy, in General Knit of California, 239 NLRB 619
(1978). That rule provided that an election would be set
aside if a party's misrepresentation involved a substantial
departure from the truth and was made at a time when
the other party could not make an effective reply, such
that the misrepresentation could reasonably be expected
to have a significant impact on the election. Hollywood
Ceramics, above, 140 NLRB at 224. On August 4, 1982,
the Board issued its decision in Midland Life Insurance
Co., 263 NLRB 127 (1982). In Midland, the Board decid-
ed to return to the policy articulated in Shopping Kart
Food Market, 228 NLRB 1311 (1977), which enjoyed a
brief life span between Hollywood Ceramics and General
Knit. Thus the Board now declines to entertain objec-
tions based on misrepresentations unless the material in-
volves forged documents or the alteration of official
Board documents. In Midland the Board also specifically
considered the question of whether the new rule should
be given retroactive effect. The Board concluded that
the rule should be applied to "all pending cases in what-
ever stage." Midland, supra at 133 fn. 24, quoting from
Deluxe Metal Furniture Co., 121 NLRB 995, 1006-07
(1958).
In Midland the Board took note of criticisms of its
Hollywood Ceramics rule and, in particular, of an empiri-
cal study of Board elections which concluded that few
employees are influenced significantly by campaign ma-
terials. After weighing the costs and benefits of close
regulation of campaign propaganda, the Board held that
it would no longer probe into the truth or falsity of par-
ties' campaign statements. Thus, the Board determined
that it would intervene only in cases "where a party has
used forged documents which render the voters unable
to recognize the propaganda for what it is" or "when an
official Board document has been altered in such a way
as to indicate an endorsement by the Board of a party to
the election." Midland, supra at 133 fn. 25. The Board
explained that its new rule
. . . is a clear, realistic rule of easy application
which lends itself to definite, predictable, and
speedy results. It removes impediments to free
speech by permitting parties to speak without fear
that inadvertent errors will provide the basis for
endless delay or overturned elections, and promotes
uniformity in national labor law by minimizing the
basis for disagreement between the Board and the
courts of appeals. Weighing the .... Shopping
Kart rule against the possibility that some voters
may be misled by erroneous campaign propaganda,
a result that even Hollywood Ceramics permits, we
find that the balance unquestionably falls in favor of
implementing the standard set forth in Shopping
Kart. [Id. at 132.]
A threshold question in this proceeding is whether the
Board's determination to apply its Midland rule retroac-
tively to all pending cases applies as well to the instant
case which is on remand from the court of appeals. It is
true that the court of appeals, in its opinion, applied the
Board's Hollywood Ceramics rule because that was the
rule then in existence. In view of the discretion accorded
to Board rules governing representation cases, it is likely
that the court would also give deference to Midland if a
case came before it for review under that rule. In this
case, however, the court has already reviewed the matter
under the Hollywood Ceramics rule. While the question of
which rule to apply on remand is ultimately for the
Board or the court itself to resolve, I believe that, in the
unique circumstances of this case, the better course for
me is to apply the Hollywood Ceramics rule as the law of
the case.3
Turning to the question of whether the Union's state-
ment that an employer cannot reduce wages or take
away benefits, together with the McCulloch letter, had a
significant impact on the election sufficient to warrant its
being set aside, I apply the Hollywood Ceramics rule and
I find that the statement did not preclude a free and fair
election.
The Bombs Away handout must be considered in con-
text. It was the opening salvo in the campaign. It specifi-
cally stated that employers typically threaten employees
to discourage the election of unions. The handouts spe-
cifically refer to the McCulloch letter which states that
"an employer cannot reduce wages or take away any in-
surance or other benefits . . . because the union has es-
tablished its majority status and bargaining rights. Nei-
ther can he threaten to do so if the union wins an elec-
s It seems plain to me that, under the Midland rule, the statement
found by the court to be inaccurate would not require that the election
be overturned. Respondent argues to the contrary, contending that, by
attaching the McCulloch letter to its handout, the Union in effect altered
an official document so as to compromise the Board's neutrality. I dis-
agree. There was no alteration of a Board document in this case and the
court specifically found that use of the letter did not compromise the
Board's neutrality (676 F.2d at 321).
1417
DECISIONS OF NATIONAL LABORI RELATIONS BOARD
tion" (emphasis added). The McCulloch letter thus con-
ditions the prohibition against employer action to situa-
tions based on retaliation or discrimination against em-
ployees for selection of a union. The Union's handout
likewise focused on possible retaliation. Nothing in the
handout or McCulloch's letter even suggested what
would happen if and when the Union won bargaining
rights or what would happen during negotiations. This
was not the focus of the Union's handout which, as the
Bombs Away caption suggests, was an effort to open the
campaign by reassuring employees that the employer
could not lawfully retaliate against them for supporting
the Union.
The court directed that other union handouts be con-
sidered in evaluating the materiality of the contested
statement. When the other handouts are considered-not
only those of the Union, but also those of Respondent, it
becomes clear that the court's concern, namely, that the
Union's statement failed to mention that wages and bene-
fits could be reduced after good-faith bargaining, did not
preclude a free election. This is because the other hand-
outs make quite clear that wages and benefits would be
subject to the negotiating process, and, as Respondent's
campaign literature and its officials' campaign statements
made clear, could even be lowered after negotiations.
Unlike the contested handout, other union handouts
did discuss what the Union might obtain for employees
after bargaining should it obtain representation rights.
Naturally, the Union promised it would win better wages
and benefits. This is expected election-type rhetoric.
Indeed, in one leaflet, the Union "guarantee[d]" that
present wages and benefits "will not be reduced or abol-
ished unless such reduction or abolition is acceptable to a
majority to negotiate with the IAM in good faith after a
majority of the workers voting in the NLRB secret
ballot election vote in favor of the IAM," and that "the
company is required to sign an IAM contract once such
contract has been negotiated." Another union handout
emphasized the importance of having a written contract
to protect wages and benefits. Still another cited Labor
Department statistics which showed that the earnings of
union represented workers were greater than nonrepre-
sented workers. Another handout, apparently in response
to campaign charges by Respondent, stated that "a work
stoppage is not the only answer when the IAM and the
company cannot reach agreement. MEDIATION is the
alternative." This handout also quoted a nostrum that
"Collective bargaining is an indispensable ingredient of a
free industrial society."
The Bombs Away handout was distributed early in the
campaign. Then Personnel Manager Tom Kranz testified
that, throughout the campaign, he made efforts to rebut
the claim of employees that they could not lose anything
by selecting the union to represent them. Indeed, after
the distribution of the Bombs Away handbill, Respond-
ent's officials held a meeting about the handbill and dis-
cussed how to respond to it. There was a written re-
sponse distributed by Respondent specifically addressed
to the Bombs Away handout. As Kranz testified, in the
written response, "[W]e said that they-there were any
number of ways that things could happen during negotia-
tions. Things could stay the same; or things could-
wages or benefits could go down, or they could go up.
We didn't [sic] that they would always go up." It is also
apparent from the record that Respondent held meetings
with employees on the issue of what would happen to
wages and benefits after the Union came on the scene.
I now turn to an analysis of Respondent's other cam-
paign material. Exhibit 16 attached to the Regional Di-
rector's Report on Objections contains letters to employ-
ees dated February 14 and 21, and March 7, 14, and 17,
1980. All were distributed after the Bombs Away hand-
out. Some of the letters contain attachments. It is clear
that, in this material, Respondent not only answered the
Union's campaign statements, but it also addressed the
issue which concerned the court.
In the attachment to the February 14, 1980 letter,
titled "Information fact sheet No. 1," Respondent stated,
"If the Union wins the election, it only means that Bauer
Welding must recognize the Machinists as your repre-
sentative. The law does not require Bauer Welding to
agree to anything that it does not feel is in the best inter-
est of the company and its employees. There is no law
that forces us to agree with any demand of the union."
In the same document Respondent answered the ques-
tion, "Can the union guarantee any better wages or bene-
fits than we have now?" by stating "No. The Union
would like you to believe that they can increase your
wages by a dollar an hour and vastly increase paid holi-
days and other benefits. The absolute truth of the matter
is that the union can't guarantee you anything. Wages
and other benefits are all negotiable items and the com-
pany is not required to make any concessions to the
union. It is simply required to bargain in good faith." Re-
spondent also stated that the union was free to make
"whatever promises it wants because they don't have the
power to actually implement those promises unless the
company agrees to do so. The law prohibits employers
from making promises about wages and benefits during a
campaign because the employer does not have the power
to increase wages and benefits." Finally, Respondent
stated as follows:
If the union can't get what they want during ne-
gotiations they could [sic] do one of three things:
1. They could walk away and disclaim any in-
terest in representing you.
2. They could agree to accept whatever the
company had offered, if anything.
3. They could call a strike.
Respondent then suggested that the Union would have
to strike to get its way.
Other campaign material distributed by Respondent
made the same point. On February 21, 1980, Respondent
emphasized, "All the union can do is ask" (emphasis in
original). The March 7, 1980 letter refers to an earlier
occasion wherein employees "had the opportunity to see
how your wages and benefits stack up with those paid to
employees who are members of the Machinists Union."
On March 14, 1980, Respondent emphasized that "No
one can make Bauer Welding agree to any demand or
make any concessions to the union-not a mediator, not an
1418
BAUER WELDING
arbitrator. If Bauer Welding and the union can't reach an
agreement through negotiations, there is no contract.
The National Labor Relations Act guarantees employers
this right." (Emphasis in original.)
In view of the above, I find that the misstatement in
the Bombs Away handout, taken together with the
McCulloch letter, could not reasonably be expected to
have a significant or material impact on the election. To
the extent that the handouts failed to mention the possi-
bility of a loss of benefits after good-faith bargaining, the
subsequent handouts of both the Union and Respondent
focused on the issue of what would happen after negotia-
tions and those handouts completely corrected whatever
impact flowed from the omission in the Bombs Away
handout. These subsequent handouts and responses by
Respondent all took place after the distribution of the
Bombs Away handout. The election was some 2 months
later. In these circumstances, I cannot conclude that any
employee reasonably could have believed that Respond-
ent could not reduce benefits after engaging in good-faith
bargaining negotiations or that Chairman McCulloch's
letter said as much.
Respondent also relies on certain testimony which it
asserts shows that employees believed that there was no
way they could lose by having a union represent them.
For example, Respondent's former personnel manager,
Tom Kranz, testified that the "gist" of his conversations
with two employees concerning the Bombs Away hand-
out was that "there was no way they could lose by
having a union represent them. They felt that they
would only gain more benefits and wages." He also testi-
fied generally about other conversations not directly re-
lated to the Bombs Away handout where employees ex-
pressed similar views. Kranz further testified that he at-
tempted to rebut the claims that "they could not lose,
they could only gain" of the employees to whom he
spoke. Kranz told them that "in negotiations, if it came
to that, things could stay the same; they could go down,
as far as wages and benefits; or they could increase."
General Foreman Charles Matson also testified that he
spoke to several employees who referred to the McCul-
loch letter. He could not remember the details of the
conversations, but he stated the "basic gist of all of them
was that they could only gain, they could not lose."
Matson told these employees and others who made simi-
lar statements that everything was negotiable.
Respondent seeks to counter the evidence that Kranz
and Matson were able to tell employees that wages and
benefits would not be increased and that after negotia-
tions they might even be lowered. Respondent relies on
Matson's testimony that he felt employees believed his
arguments at first but that they did not later in the cam-
paign. I find this a meaningless piece of testimony for, if
the McCulloch letter had any impact at all, it would
have been shortly after its distribution. Later in the cam-
paign the two sides exchanged essentially truthful salvos
on the issue of wages and benefits after negotiations
which the employees could clearly assess for themselves.
Kranz' feeling that the employees were not convinced by
his responses is of the same character. It is not the type
of objectively based testimony which can be utilized in
determining whether the responses were sufficient to
correct the apparent misstatement of the Union.
The above testimony is of questionable reliability be-
cause of its subjective and conclusory character. It at-
tempts, through Respondent's own supervisors, to plumb
the feelings of employees some 2 years after a secret-
ballot election. The Board normally makes its determina-
tion whether to set aside an election "on an objective
basis-i.e., on whether the alleged misconduct would
reasonably tend to prevent the holding of a fair and free
election-rather than on the subjective statements of the
employees as to whether they were 'coerced' or 'misled'
into voting as they did." Litton Industrial Products, 221
NLRB 700, 708 (1975), enf. denied on other grounds 543
F.2d 1085 (4th Cir. 1976) and cases there cited. Cf.
NLRB v. Gissel Packing Co., 395 U.S. 575, 608 (1969).
More importantly, perhaps, the testimony of Kranz
and Matson does not shed light on whether the employ-
ees were misled by the misstatement which concerned
the court. Only if employees believed that Respondent
could not lawfully reduce benefits after bargaining in
good faith would the misstatement have operated to
have an undue impact on the election. None of Respond-
ent's testimony establishes this fact, particularly since the
supervisors answered the employees' remarks by making
the same statements Respondent made in meetings, in
campaign speeches, and in its literature, to the effect that
wages and benefits would be the subject of negotiations
and could even be lowered.
Likewise insufficient to show that the Union's missta-
tement misled employees into believing that the Union
could get increased benefits without negotiations or that
benefits could not be decreased after negotiations is the
testimony of the three employee witnesses on this point.
None of the testimony shows that the Union's misstate-
ment precluded a free election.
Only one employee, Richard McIver, was able to di-
rectly relate his testimony to the Bombs Away handout.
In response to questions by Respondent's counsel,
McIver testified that he and other employees discussed
the Bombs Away handout and that he believed the
Union's statement that Respondent could not reduce
wages and benefits. On cross-examination, however,
McIver made it quite clear that he understood that the
Union's promises, including those involving wages and
benefits, were matters which were negotiable and that
there was a chance that the Union would not obtain the
wages and benefits it sought. Indeed, McIver was one of
the two employees whom Personnel Manager Kranz spe-
cifically identified as having discussed the Bomb Away
handout with him. Kranz testified that he told McIver
that all matters were negotiable and that benefits could
even be lowered after negotiations.
Employee John Wolyniec testified that he saw the
Bombs Away handout at a union meeting. He also testi-
fied that he had conversations with several employees
wherein someone said that "we can't lose anything," but
that none of these conversations involved the Bomb
Away handout. He could not remember names of em-
ployees or details of any of these conversations. Wolyn-
iec's testimony on this point was so vague and general
1419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that I cannot justify basing findings of fact on it. Nor do
I consider reliable his subjective and conclusory testimo-
ny that he did not believe Respondent's officials who
told employees "at meetings and through literature that
the Union's statement that wages and benefits could not
be reduced was not true." He testified that he did not be-
lieve Respondent's remarks because of "what I read
there, you know, coming down from some court." When
asked what court, he answered, "National Relations
Board, right?" and then gave an affirmative response to a
leading and conclusory question. This testimony seemed
to me, based on the demeanor of the witness and his re-
ponses, to have been tailored to meet Respondent's litiga-
tion theory. Wolyniec seemed also to be a very pliable
witness. He testified that he read the Bombs Away hand-
out at a union meeting and that, at one of the meetings,
union organizer Mike Woltz stated that Respondent
could not take away current benefits. On cross-examina-
tion, he testified he was unsure whether he received the
handout in the mail and admitted that Woltz said that
Respondent could not take away benefits "just because"
employees "voted for a Union." Wolyniec was the type
of witness who would respond favorably to whoever
was questioning him. I did not find him to be a reliable
witness and I cannot credit any of his testimony.
Employee Robert Lichtenberg testified that he could
not remember any conversations about the Bombs Away
handout, but he did remember speaking to employees,
only one of whom he could specify, who said "we have
everything to gain and nothing to lose." Lichtenberg
was unable to put the specific conversation or any of the
others in context. I cannot regard his testimony reliable
on this point.
In summary, I found little in the testimony of the two
management officials and the three employee witnesses
which would establish, on an objective basis, that the
Union's misstatement had a significant impact on the out-
come of the election. None of the testimony suggests
that the employees believed that the Union would gain
increased benefits without negotiations or that Respond-
ent could not reduce benefits after bargaining in good
faith. In these circumstances, I find that the misstatement
in the Bombs Away handout did not have a material or
significant impact on the election.
In any event, it is clear on this record that, to the
extent that there was any implication that benefits and
wages could not be reduced even after good-faith bar-
gaining, Respondent had ample opportunity to, and actu-
ally did, effectively reply to the misstatement. I am
aware of the court's concern as to "whether Bauer could
ever effectively or credibly rebut a misstatement but-
tressed by a document such as Chairman McCulloch's
letter." However, after full consideration of the cam-
paign literature-all of which postdated the Bombs
Away handout, I conclude that the employees were not
misled into believing that wages and benefits could not
be decreased after good-faith bargaining. Moreover, it is
clear on this record that Respondent's officials, through
meetings, distribution of literature, and numerous con-
tacts with employees, specifically rebutted the misstate-
ment. They told employees that anything could happen
after negotiations, including a decrease in wages and ben-
efits. It was also specifically mentioned that the law did
not require Respondent to agree to anything. Respondent
thus has not shown that the employees here were so
naive as to believe that union promises would not be met
with employer resistance in negotiations.
Respondent also contends that nothing it could have
done would have rebutted the misstatement because it
was enhanced by the McCulloch letter. In support of this
contention, Respondent cites and relies on Thiokol Chem-
ical Corp., 202 NLRB 434 (1973). That case does not
support Respondent's position because it is distinguish-
able on its facts.
In Thiokol, the Board set aside an election because an
employer used an out-of-date Board document which
misstated the reinstatement rights of economic strikers.
The employer chose to reprint a 1962 document on this
point rather than a 1970 document which superseded the
earlier document and expressed the current state of the
law. The reprint was mailed to employees 9 days before
the Board election. The Board rejected the view that the
employer's conduct was simply a misrepresentation sub-
ject to correction if there was an opportunity to reply. It
emphasized that the case involved the use of an official
Board document which, because it was out of date, mis-
stated the applicable law. Here, unlike in Thiokol, the
McCulloch letter was accurate as far as it went. It failed
simply to mention the contingency of what could happen
after negotiations. Moreover, the record in this case
clearly shows that the parties had 2 months-as opposed
to 9 days in Thiokol-to join campaign issues after the
McCulloch letter was distributed. In that 2 months the
parties did address the issue not covered in the McCul-
loch letter. Finally, the court's decision makes clear that
use of the McCulloch letter did not compromise the
Board's neutrality (676 F.2d at 321). It was this factor
which caused the Board in Thiokol to reject the conten-
tion that the case before it simply involved a misrepre-
sentation under Hollywood Ceramics and was thus subject
to correction by the other side. Accordingly, I do not
believe that Thiokol compels a finding, in the instant
case, that Respondent could not effectively counter the
Union's misstatement.
Far from supporting Respondent's position, consider-
ation of the Thiokol case points to the propriety of up-
holding the election in this case. For in the very same
type of issue as was involved in Thiokol-the significance
of election campaign statements concerning the reinstate-
ment of strikers-the Board has refused to set aside elec-
tions where the employer's explanations fall short of set-
ting forth all possible conditions and alternatives. For ex-
ample, in Care Inc., 202 NLRB 1065 (1973), the Board
was faced with an election objection that an employer
had told employees that, if they struck, they could be
permanently replaced-which was true-but failed to tell
them also that if such eventually occurred they would
have certain reinstatement rights and that their rights in
an unfair labor practice strike would be even greater.
The Board reversed the administrative law judge who
had overturned the election on the basis of the objection.
As the Board stated in another case of this type, an em-
ployer may address the subject of striker replacement
1420
BAUER WELDING
without fully detailing the protections and rights enumer-
ated in relevant cases so long as it does not threaten a
deprivation of those rights. "To hold otherwise would
place an unwarranted burden on an employer to expli-
cate all the possible consequences of being an economic
striker." Eagle Comtronics, Inc., 263 515, 516 (1982). Ac-
cordingly, it appears to me that the instant case is closer
to Care Inc. and Eagle Comtronics than it is to Thiokol.
The Union's misstatement here was one of omission and
the omission was fully dealt with by the Respondent in
the statements of its officials and in its campaign litera-
ture. None of the employees could have been misled as
to what might happen after good-faith bargaining. 4
II. THE ALLEGED COERCION ISSUES
Respondent argues that certain letters sent by the
Union to its supervisors during the election campaign
were coercive and required that the election should be
set aside. I disagree.
The letters were sent on or about February 5, 1980,
and received by February 11. They stated, in general
terms, the nature of the election campaign and set forth
certain sections of the Act which prohibited coercion
against employees. The letters also stated that "you are
being compelled to commit acts of improbity" and went
on to point out that violations of the Labor Act are pun-
ishable by a fine of not more than $5000 or by imprison-
ment of not more than a year. This was clearly errone-
ous since the Act's sanctions are remedial and not crimi-
nal. 5
Union organizer Mike Woltz testified that the letters
were written because it had been reported to him that
Respondent's officials were committing unfair labor prac-
tices. Charges to this effect were in fact filed on March
5, 1980, and a complaint issued. The matter was settled
and the settlement agreement contained a nonadmissions
clause. There is also testimony that several employees
talked to supervisors both before and after they received
the letters. These conversations dealt with the fact that
supervisors were going to receive such a letter, questions
as to whether they had received such letters, and what
the supervisors thought of the letters.
The record also reveals that, within a day or two of
receipt of the letters, Respondent called a meeting of su-
pervisors where Vice President and General Manager
Gary Bauer, as well as Respondent's labor attorney,
spoke to supervisors about the letters. Respondent's
higher management specifically countered and corrected
the erroneous statement in the letters. According to
Bauer, "We discussed those assertions [that there could
be fines and jail sentences for violations of the Act] and
4 The remaining cases cited by Respondent are also distinguishable be-
cause they involved not misstatements by virtue of an omission of quali-
fying principles but actual misrepresentations of legal principles. More-
over, the circumstances were more compelling for overturning the elec-
tions. In Southwest Latex Corp., 175 NLRB I (1969), K-F Products, 170
NLRB 366 (1968), and Lake Superior District Power Co., 239 NLRB 1275
(1979), the misrepresentations were made I or 2 days before the election
at a time when the employer had no opportunity to reply. Here, the mis-
statement occurred 2 months before the election.
5 Perhaps the letter intended a reference to Sec. 12 of the Act which
provides for the above penalties where a "person" willfully resists or
interferes with Board agents in the performance of their duties.
we informed them that the assertions were false. That
those were criminal penalties and they could not [sic] im-
posed on supervisors for unfair labor practices."
I fail to see how the letters could have had any signifi-
cant impact on the election. They were addressed to su-
pervisors and, to the extent that the misstatement had
any restraining effect on their participation on behalf of
management in the campaign to defeat the Union, it was
dissipated by the meeting in which higher officials, in-
cluding a labor lawyer, corrected the misstatement.
Moreover, several supervisors testified that they contin-
ued thereafter to campaign on behalf of Respondent's po-
sition, consistent with instructions from higher officials
and Respondent's labor counsel. Nor was there any evi-
dence that employees were influenced in afiy way by the
fact that such letters were sent to supervisors.
In connection with Respondent's contention concern-
ing the letters to the supervisors, Respondent cites the
testimony of Supervisor Jack Schauls who told of an in-
cident where he was approached by employee Richard
McIver. McIver accused Schauls of lying to employees
in the course of his antiunion campaigning. He told
Schauls to "walk the middle of the road" during the
campaign because, if the Union won the election, it
would "try to get rid of some of the troublemakers."
Schauls testified that he believed the union supporters
would try to pressure Respondent to fire him if the
Union won the election. Schauls also testified that he
spoke to management officials about this fear, although
he did not remember the details of any such conversa-
tion. He was, however, assured by management officials
that the Union's letter warning of criminal penalties for
unfair labor practices committed by supervisors was er-
roneous.
Nothing in Schauls' testimony compels a finding that
Mclver's remarks had a significant impact on the elec-
tion. First of all, McIver was not shown to be a union
agent. Secondly, there is no evidence that voting em-
ployees know of or were affected by this incident. See
NLRB v. Southern Paper Box Co., 506 F.2d 581, 585 (8th
Cir. 1974). Finally, it is hard to believe that McIver or
anyone else would be able to carry out a threat to get a
supervisor fired because he was supporting his employer
too strongly in an election campaign in which the em-
ployer's intent to defeat the possibility of union represen-
tation was clearly stated and publicized. Indeed, if
Schauls valued his job, he might well have campaigned
even harder to defeat the Union.
Other allegations of coercion on the part of the Union
are likewise not sufficient to show a significant impact on
an election which the Union won by a margin of over 3-
to-2.
There was, for example, an allegation that employee
Dennis Philippi was coerced early in the campaign to
sign a union authorization card. The evidence is as fol-
lows: One day, at the plant, Philippi was handed a union
card by employee Gary Daiker who asked him to sign it.
Philippi promised to do so, but he apparently did not
sign the card at that time. Later, on January 23, Philippi
attended a union meeting. Near the end of the meeting,
Daiker called out, "Hey, Philippi, are you going to sign
1421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a card now?." Philippi was then handed a card by em-
ployee Richard McLellan and signed it. After the meet-
ing, Philippi went out to the parking lot and prepared to
go home. It was about 6 o'clock and "very dark," ac-
cording to Philippi. Philippi testified that he was ap-
proached by several employees, including Daiker. Daiker
poked his finger at Philippi and said "he [Philippi] better
have meant it by signing that card." Philippi at first testi-
fied that he could not remember whether the other em-
ployees said anything; later he testified they "just said
they hoped I meant [sic] by signing the cards." The
other employees were identified as McLellan, Pete Madi-
son, and Mark Robbins. The incident in the parking lot
lasted 2 or 3 minutes.
In answer to a leading question, Philippi testified that
he was worried during the confrontation because of
Daiker's reputation which other employees testified was
that of a violent or volatile person. Actually, Philippi tes-
tified that he had had a "run in" with Daiker at work
about a year before the election. Philippi testified as fol-
lows about this "run in":
A. Well, one day he shot a paperclip into my
back and I told him what I thought about him. And
he says, Oh, don't get your feathers all ruffled, or
I'll take care of you. So I just walked away and got
lost.
Philippi reported the January 23 parking lot incident to
Personnel Manager Kranz. There is no evidence that
Daiker or any of the other prounion employees harassed
or even spoke with Philippi during the remaining 2
months of the campaign. Philippi specifically stated that
he had no "run ins" with Daiker after the parking lot in-
cident.
Respondent alleges that Daiker and the other employ-
ees involved in the parking lot incident had a "special re-
lationship" with the Union because they attended special
meetings with union organizer Woltz wherein he dis-
cussed the union campaign and gave them literature to
distribute at the plant. The evidence on this point, which
Respondent alleges either established an agency status or
otherwise binds the Union for the conduct of these indi-
viduals, is as follows: Employee Richard McLellan, one
of the employees present during the parking lot incident
and one of those who attended the special meetings, tes-
tified that he and Mark Robbins attended most of the
meetings. He also testified that "whoever cared to
attend" did so, and several other employees, including
Madison and Daiker, attended these meetings. Daiker at-
tended "at least one of them." McLellan actually signed
two letters sent to Respondent which dealt with the
union campaign. These letters, which were on plain
paper and signed by McLellan speaking as an employee,
were typed at the Union's office and seemed to have
been composed with at least the concurrence of union
organizer Woltz. McLellan was also employed after the
election as a paid union picket for a few hours on one
occasion.
The above evidence does not establish the agency
status of any of the employees who were present during
the parking lot incident. The testimony concerning the
participation of the employees other than McLellan in
the special meetings with Woltz is devoid of any detail.
There is no evidence of what they did on behalf of the
Union. Nor was McLellan's role that of an agent. He did
participate in the election campaign on behalf of the
Union. But this evidence does not make him a union
agent. He was simply a prounion employee campaigning
for the Union's position. His job as a paid picket for the
Union took place after the election. Even assuming,
however, that McLellan was an agent of the Union for
some purposes, there is no evidence that he did or said
anything to Philippi in the parking lot which could be
construed as binding the Union. Philippi did not specifi-
cally indentify McLellan as having said anything.
Daiker, who was pinpointed by Philippi as having made
a remark and poked his finger at Philippi, attended only
one of the special meetings, but there is no evidence that
he did or said anything as a result of his attendance at
any of the special meetings which would justify consid-
ering him as a spokesman for the Union. The testimony
that Daiker handed Philippi a union card at work is
hardly evidence of agency status. There was no evidence
that Daiker was viewed as a union agent by employees.
Indeed, the testimony of several employees concerning
his unsavory reputation rather establishes him as an inde-
pendent sort of free spirit who could not have been con-
sidered as a spokesman for anyone in the election cam-
paign.
Even apart from the attenuated connection between
the Union and the employees named above, however, I
do not believe that the parking lot incident interfered
with the election which was held some 2 months later.
Daiker's statement to the effect that Philippi better have
meant it when he signed a union card is not the type of
statement which could reasonably be interpreted as a
threat of physical retaliation. Philippi's card was not nec-
essary since the Union had already filed a valid election
petition; and he was free to vote as he wished in the
secret-ballot election. Standing alone, Philippi's testimo-
ny that he felt intimidated is not the type of objective
evidence which would justify overturning the election.
In any event, even if the statement could be deemed to
be coercive, its effect was not significant or lingering in
terms of precluding a free election. Daiker and Philippi
had had a run-in prior to the election and Daiker was
drinking the night of the parking lot incident. The inci-
dent itself lasted only 2 or 3 minutes. I view Daiker's
remark as that of a tipsy union supporter who was
simply, but crudely, trying to hold Philippi to his appar-
ent commitment to the Union. The incident, moreover,
was an isolated one. Daiker never spoke to Philippi again
in the remaining 2 months of the campaign. Nor is there
any evidence that any of the other prounion employees
present during the parking lot incident thereafter spoke
to Philippi about the Union. Finally, there is no specific
evidence that the parking lot incident was widely known
or that it played any significant role in the election. Phi-
lippi did not testify that he discussed the incident at the
plant with any employees. He did tell Personnel Manag-
er Tom Kranz and Kranz testified that this matter came
up in his conversations with "four or five" employees.
1422
BAUER WELDING
Kranz, however, was unable to identify such employees,
and he did not tell how the subject came up or what was
said. Nor did he testify whether he or the employees ini-
tiated the matter. It is thus difficult to see how what ap-
pears to have been an isolated confrontation between em-
ployees early in the campaign could be translated into a
union-sponsored threat to coerce employees to vote for
it. See NLRB v. Southern Paper Box Co., above6
Philippi also gave hearsay testimony that, after the
election, his wife received two anonymous telephone
calls, one of which suggested that Philippi would need
dental insurance. I cannot rule that these calls had any
impact on the election because they came after the elec-
tion, they were the subject of hearsay testimony, and
there is no evidence which could identify the callers or
link them to the Union. 7
The last incident of alleged coercion is a charge that
union organizer Woltz threatened employee Robert
Lichtenberg at a union meeting. Lichtenberg testified
that, at the meeting, Woltz stated, "Here is a man, we
can go up one side of him and down the other, but we
are not going to do this." Lichtenberg testified that Wolz
was not looking at him when the remark was made and
he was not sitting close to Woltz, but that he felt that,
since he was the only employee at the meeting who had
not attended other meetings, the remark was addressed
to him. Lichtenberg could not remember the date of the
meeting, but he stated that it took place before the elec-
tion. On cross-examination, Lichtenberg admitted that,
after the meeting, he went up to Woltz and engaged him
in a conversation, but that he did not ask Woltz about
the statement which he believed was adressed to him.
Lichtenberg, who was an election observer on behalf of
Respondent, was unable to place the alleged threatening
statement in context. He could not recall what was said
before and after the statement. Nor could he recall his
conversation with Woltz after the meeting.
Woltz denied making the statement attributed to him
by Lichtenberg. He testified that Lichtenberg asked
some questions at the meeting and that Lichtenberg also
came up to him after the meeting and asked more ques-
tions. Woltz answered the questions and had a "lengthy
conversation" with him. The conversation was cordial
and Woltz believed that he might have persuaded Lich-
tenberg to vote "yes" instead of "no" in the election.
Woltz was not cross-examined on this point.
I credit the testimony of Woltz on this issue. He testi-
fied in much greater detail concerning the meeting
which Lichtenberg attended than did Lichtenberg, and,
in my view, he testified honestly and candidly. Lichten-
6 In my view, the remark which took place inside the union meeting
prior to Philippi's signing of a union card could in no way be considered
coercive. Nor was it shown to have had any impact on the election.
I At p. 141 of the transcript it is erroneously reflected that I stated, in
reference to the above hearsay report of anonymous phone calls, that "I
won't strike it because I ran into the regional director and discussed
that." The transcript reference is erroneous. I did not say at the hearing
that I discussed this matter with the Regional Director and I did not. The
statement in the transcript should read something to the effect that "I
read that in the report of the regional director. He discussed that." Page
8 of the Regional Director's report does indeed discuss the hearsay ac-
count and the next sentence in the transcript makes clear that I was refer-
ring to a report which is in evidence.
berg, on the other hand, was unable to put the alleged
threat by Woltz in context. Nor could he remember any-
thing about his subsequent conversation with Woltz.
Lichtenberg admittedly mentioned nothing in that subse-
quent conversation about the alleged threatening state-
ment which was made during the meeting. It is uncon-
tested that the subsequent conversation was a cordial one
and Lichtenberg's testimony is not corroborated. I there-
fore do not find Lichtenberg's testimony as reliable as
that of Woltz. In any event, the alleged threat was not a
significant act of coercion nor was it shown to have im-
pacted on the election. Even under Lichtenberg's ver-
sion, Woltz said that Lichtenberg was not going to be at-
tached-if indeed that is what was meant by going "up
one side of him and down the other"; and Lichtenberg
himself admitted that Woltz did not look or gesture at
him when he made the statement. Finally, not one em-
ployee other than Lichtenberg testified about this inci-
dent or its effect and Lichtenberg obviously stood firm
in his rejection of the Union notwithstanding Woltz' re-
marks because he acted as Respondent's observer in the
election of March 20.
Ill. CONCLUSION
The court, in its decision, cautioned that the totality of
the circumstances must be considered in determining
whether a fair and free election was held, citing its deci-
sion in NLRB v. Van Gorp Corp., 615 F.2d 759 (1980),
and NLRB v. Payless Cashway Lumber Store, 508 F.2d 24
(1974). In order to comport with the views of the court,
I shall consider the evidence in this case in light of the
decisions in the cited cases.
In Van Gorp, the court reversed a Board finding that
an election was fairly held because there was a "last
minute" union misrepresentation on the eve of the elec-
tion and four separate incidents of coercion by prounion
employees, including threats to break "windows" and
"arms" and one physical assault where the prounion em-
ployee threatened to set fire to another employee's car or
house or harm his family. The court also observed that
the election was a close one. In Payless, only one inci-
dent of coercion was involved. The court reversed the
Board and required the overturning of an election where
a local mayor made a statement at an election eve union
meeting that a certain person had better favor the union
or his tires would be slit.
The instant case does not fall into the category of
cases cited by the court as requiring the overturning of
an election. Here the misstatement occurred some 2
months before the election and was followed by clarify-
ing statements from both sides. The election was not
close. The employees selected the Union by a wide
margin. Moreover, there was only one incident of appar-
ent coercion involving one employee, Philippi, and that
incident also took place some 2 months before the elec-
tion. The remaining alleged incidents of coercion either
did not occur or were not addressed to employees. Nor
did the conduct herein approach, in any way, the severi-
ty of the conduct discussed in Van Gorp. or Payless Cash-
way. The record in this case does not show that the
Union's efforts created "an atmosphere of fear and re-
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prisal such as to render a free expression of choice im-
possible." NLRB v. Griffith Oldsmobile, 455 F.2d 867,
870 (8th Cir. 1972), quoted in Van Gorp., above, 615 F.2d
at 764.
I therefore conclude that the totality of the circum-
stances in this case militates against overturning the elec-
tion of March 20, 1980. I find that a free and fair election
was held and that the Board's certification and its subse-
quent bargaining order were proper and should be reaf-
firmed.
1424