Beaird-Poulan Division

National Labor Relations Board - Board Decisions

Feb 25, 1980

247 N.L.R.B. 1365 (N.L.R.B. 1980)

BEAIRD-POULAN DIVISION
Beaird-Poulan Division, Emerson Electric Company
and International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW. Case 15-CA-6315
February 25, 1980
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 25, 1977, the National Labor Relations
Board issued its initial Decision and Order' in this
proceeding wherein it found that the Union was
properly certified on November 23, 1976, following a
valid Board-conducted election, that Respondent's
refusal to bargain violated Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, and,
accordingly, ordered Respondent to bargain with the
Union.
On March 2, 1978 the United States Court of
Appeals for the Eighth Circuit denied enforcement2 of
the Board's Order and remanded the proceeding to the
Board for the purpose of conducting a hearing on
Respondent's allegations of union misconduct in the
election. The Board accepted the remand and, in
accordance therewith, a hearing was held before
Administrative Law Judge Marvin Roth.
On August 28, 1979, Administrative Law Judge
Marvin Roth issued the attached Supplemental Deci-
sion in this proceeding. Thereafter, Respondent filed
exceptions and a brief, the General Counsel and the
Charging Party filed briefs in support of the Adminis-
trative Law Judge's Decision, and the Charging Party
also filed a reply brief to Respondent's exceptions and
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
' 229 NLRB 988.
517 F.2d 432
Respondent 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 respect to credibility unless the
clear preponderance of all of the relevant evidence consitnces us that the
resolutions are incorrect. Standard Dry Wall Product. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). we have carefully examined the
record and rind no basis for reversing his findings.
Member Penello agrees with his colleagues that Objection 3 involving
misrepesentations should be overruled. but does so for the reasons set forth in
Shopping Karl Food Market. Inc.. 228 NLRB 1311 (1977). the principles of
which he still adheres to. See his dissenting opinion in General Knit of
California. Inc.. 239 NLRB 619 (1978). Member Penello also agrees with his
colleagues that Petitioner did not threaten employee Robert De Young with
violent reprisals if he crossed a picket line and returned to work. Therefore,
his dissenting opinion in Hickory Springs Manufacturing Company. 239
NLRB 641 (1978), has no application in this proceeding.
247 NLRB No. 180
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record as a whole and
the attached Supplemental Decision in light of the
exceptions, briefs, and the decision of the Court of
Appeals for the Eighth Circuit, and has decided to
affirm the rulings, findings,' conclusions, and recom-
mendations of the Administrative Law Judge. Accord-
ingly, we shall affirm our initial Decision and Order
herein in its entirety.
ORDER
Based on the foregoing and the entire record in this
proceeding, the National Labor Relations Board
hereby affirms its Decision and Order issued in this
proceeding on May 25, 1977, reported at 229 NLRB
988.
SUPPLEMENTAL DECISION
STATEMENT OF 'THE CASE
MARVIN ROTH, Administrative Law Judge: On May 25,
1977, the Board issued a Decision and Order (229 NLRB
988), finding that Beaird-Poulan Division, Emerson Electric
Company (herein the Company or Respondnet) violated
Section 8(a)(5) and (I) of the National Labor Relations Act,
as amended, by refusing to recognize and bargain with
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (herein
the Union) as the certified representative of the production
and maintenance employees at the Company's Shreveport.
Louisiana, plant locations on Flourney-Lucas and Green-
wood Roads. The certification was issued by the Board on
November 238 1976, and was predicated upon an election
which was conducted on April 30, 1976, pursuant to a
Stipulation for Certification Upon Consent Election ap-
proved by the Board's Regional Director on April 1, 1976.
the Union having filed its petition on March 2, 1976. The
Union won the election by a vote of 402 to 383. On March 2,
1978, the United States Court of Appeals for the Eighth
Circuit entered its decision (571 F.2d 432) denying enforce-
ment of the Board's Order and remanding the case to the
Board for a hearing on the Company's allegations of union
misconduct in the election. Thereafter, on May 10, 1978, the
Board ordered that a hearing be held before an administra-
tive law judge "for the purpose of taking evidence in
accordance with the Court's remand," and that such
administrative law judge thereafter "prepare and serve on
the parties a Decision containing findings of fact based upon
the evidence received pursuant to the provisions of this
Order, Conclusions of Law, and recommendations."
Pursuant to notice, a hearing was held before me in
Shreveport, Louisiana, on August 8-11, 1978. and January
15-19, 1979. All parties were afforded full opportunity to
1 65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participate, to present relevant evidence, to examine and
cross-examine witnesses, to argue orally, and to file briefs.'
Upon the entire record in this supplemental hearing, and
from my observation of the witnesses, and having considered
the briefs submitted by the parties, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Scope of the Court's Remand
The Company filed the following objections to the
conduct of the election:
1. The Union conducted a campaign of fear and
intimidation, including predictions of violence and
economic detriment to employees opposed to the Union
which permeated the entire atmosphere in such a
manner as to destroy the laboratory conditions required
by the Board in its election proceedings.
2. The Union made substantial misrepresentations
with respect to the compensation, stock options and
benefits of officials and supervisors of the Employer.
3. The Union made substantial misrepresentations
with respect to its alleged contractual relationship with
Huck Manufacturing Co. of Waco, Texas. The Union
misrepresented wage rates being paid employees at
Huck Manufacturing Co.
4. Union supporters were permitted to stay in the
polling area after casting their ballots and campaigning
was conducted during the election in violation of the
Board's "Milchem Rule."
5. By the above and other acts and conduct, the
Union precluded the employees from expressing their
free choice in a non-coercive atmosphere.
I reject the Company's argument in its brief that my sole
function in deciding this case is to resolve the credibility
questions posed by the evidence concerning the Company's
objections. The Board's order directing a hearing in accor-
dance with the Court's remand, specifically directs that the
Administrative Law Judge hearing this proceeding shall
prepare a decision containing findings of fact, conclusions of
law, and recommendations. The Company's argument is
based on the premise that the court of appeals resolved all of
the legal issues in this case when it held that a hearing was
warranted. That premise is erroneous. The court could not
and did not resolve these questions, because the factual
record was incomplete. Rather, the court simply held, in
essence, that the Company came forward with evidence
which if fully credited, unexplained or uncontradicted by
credible evidence, and interpreted in a manner most favor-
able to the Company's position, would warrant setting aside
the election. Insofar as the court cited decisional authority in
support of its conclusion, I have considered and where
appropriate, discussed those authorities insofar as they are
'The General Counsel, the Company. and the Union each filed a brief, and
the Union filed a reply brief. No party having objected to the filing of a reply
brief, that Brief has been received and considered.
' By a ruling and order dated July 3, 1979, 1 directed that the stenographic
transcript of proceedings be corrected in certain respects.
Blackman-Uhler Chenical Division-Synalloy Corporaion, 239 NLRB
637 (1978), cited in support of the Company's argument, is not in point.
Unlike the present case, that case on remand from the Fourth Circuit Court of
applicable or inapplicable to the facts as determined in this
Supplemental Decision.'
As for the nature of this proceeding, it is a supplementary
unfair labor practice proceeding in which the Respondent
has the burden of going forward with the evidence and the
ultimate burden of proof. Southern Paper Box Company, 207
NLRB 56, 58, fn.7 (1973), enfd. 506 F.2d 581 (8th Cir.,
1974). The results of a Board-conducted election and the
consequent Board certification of those results are presumed
to be valid unless the objecting party can prove that there
was improper conduct which tended to interfere with
employee free choice in the election. As the present hearing
came on in the form of an unfair labor practice proceeding,
i.e., a continuation of a proceeding in which the General
Counsel is alleging that the Company is violating Section
8(a)(5) and (I) of the Act by refusing to recognize and
bargain with the Union as the certified representative of the
Company's employees in an appropriate unit, the General
Counsel could in the exercise of its discretion, under Section
3(d) of the Act participate in this proceeding as a party
litigant rather than as a neutral third party. Section 3(d)
expressly provides that the General Counsel has final
authority, on behalf of the Board, in respect of the
prosecution of complaints before the Board. The General
Counsel chose to exercise this discretion, and I ruled at the
outset of the hearing that it could validly do so. See,
N.L.R.B. v. Commercial Letter, Inc., 496 F.2d 35, 38 (8th
Cir. 1974); Bancroft Manufacturing Company, Inc., 210
NLRB 1007, 1011 (1974), enfd. 516 F.2d 436, 446 (5th Cir.);
Bill's Institutional Commissary Corporation 186 NLRB 597,
fn. 5 (1970), remanded on other grounds 449 F.2d 694, 696
(5th Cir. 1971). As the present case involves objections to an
election, which are normally the subject of a nonadversary
proceeding, the rules of evidence may, but need not be
relaxed. See Addison Shoe Corporation, 184 NLRB 333, fn. I
(1970); remanded on other grounds 450 F.2d 115 (8th Cir.
1971); Southern Paper Box Company, supra, 207 NLRB at
58. As will be discussed, I permitted the Company to present
evidence concerning matters arguably covered by its Objec-
tions I through 4, although not submitted to the Regional
Director during his investigation of the objections. However,
I did not permit the Company to prove objectionable
conduct through hearsay. I rejected the Company's argu-
ment that the General Counsel was obligated to present any
and all evidence in support of the Company's objections,
whether or not credible or probative, even if the Company
failed to present any evidence in support of a particular
objection. Indeed, the General Counsel would not have such
an obligation even in a nonadversary proceeding. However,
the General Counsel recognized that as a Government
representative, it was obligated to present available material
evidence unknown to the Company, whether favorable or
unfavorable to the Company's position. I am satisfied that
this was done. I recognize that as in other unfair labor
Appeals, presented uncontroverted facts, namely, the contents of a union
handbill. The Board interpreted the court of appeals' decisions as indicating
the court's view that the handbill was improper under the standards of
Hollywood Ceramics Companty. Inc.. 140 NLRB 221 (1962). Having decided
to follow that standard rather than the standard of Shopping Kart Food
Market. Inc.. 228 NLRB 1311 (1977), the Board accepted the court's view as
the law of the case. and directed a new election.
1366
BEAIRD-POULAN DIVISION
practice proceedings the Company was placed at a disadvan-
tage in that the General Counsel permitted its witnesses to
see their affidavits prior to the hearing, whereas the
Company's witnesses were not accorded that privilege. This
factor has been taken into consideration in resolving the
credibility questions presented.
B. Background: The Company's Shreveport Operations,
and The Election Campaign
The Company is engaged at its Shreveport facilities in the
manufacture of gasoline powered chain saws. The main
plant is located on Flourney-Lucas Road, and the "satellite"
facility, which substantially consists of a service operation, is
located on Greenwood Road about 4 miles from the main
plant.' In April 1976,' there were about 750 production and
maintenance employees at the main plant, and about 40
employees at the satellite facility. The main plant operated
around the clock, with three shifts. About two-thirds of the
employees worked on the first, or day shift (7 a.m. to 3:30
p.m.). The satellite facility operated on two shifts, with all
but about four or five employees working on the day shift.
The Union began its organizational campaign at Shreve-
port in mid-February. Union international representative
Carlton Horner was in charge of the campaign, which after
April I became an election campaign, In April, Horner was
assisted by union organizing representative Ray Hernandez.
Neither Horner nor Hernandez resided or had his office in
the Shreveport area. Horner lives near Tulsa, Oklahoma,
and Hernandez lives in Dallas, Texas. Horner was also
assisted by an in-plant organizing committee consisting of
some 31 employees who volunteered to serve on the
organizing committee. At meetings early in the campaign,
Horner called for volunteers, and employees indicated their
willingness to serve by signing written slips which purported
to authorize the Union to use their names as committee
members. Horner testified that there were no special
qualifications for committee membership, although he tried
to get maximum dispersion, e.g., to have committee mem-
bers on all three shifts. By letter to the Company dated
Febrary 18, and by a handbill distributed to employees in the
form of an open letter, Horner identified 32 employees as
being members of the organizing committee. Some of the
committee members are alleged to have engaged in election
campaign misconduct. In fact, the composition of the
committee did not remain constant. Willie (Chili) Daniel
subsequently abandoned the Union and thereafter engaged
in antiunion activity. Carlton Horner testified in sum, that
with the exception of Daniel, the committee membership
remained unchanged, but that some employees helped
themselves to "organizing committee" buttons which were
available at union meetings, and may have worn them
without union authorization. However, Ronald (Tank)
Ellison, whose name was not on the list of names given by
the Company, testified that he volunteered as an in-plant
organizer. Horner did not testify that Ellison was rejected
for membership. I find that Ellison and possibly others were
'James Mitchell. who supervisor of the satellite facility, and therefore in the
best position to know. testified that the Shreveport facilities are about 4 miles
apart.
All dates herein are in 1976, unless otherwise indicated.
Gerber has (overall authority over the Union's organizational staff. in
added to the committee from time to time. Therefore, I have
not proceeded on the assumption that the February 18 list
constitutes a complete roster of committee membership.
Rather, as with Ellison, I have considered additional
evidence in deciding, when necessary, whether employees
who allegedly engaged in campaign misconduct were mem-
bers of the organizing committee.
Organizing committee members assisted Horner and
Hernandez in distributing union literature and informing
employees of union meetings. Committee members, like
other prounion employees, talked in favor of the Union and
solicited fellow employees to sign union authorization cards.
However, the Union did not actively solicit cards once the
election campaign was underway. The extent of these
activities varied widely among individual committee mem-
bers. Horner testified that the committee members acted as
his "eyes and ears" by keeping him informed as to the
progress of the campaign, including reports on alleged or
apparent improper employer practices. However, Horner
categorically testified that they had no authority to speak for
the Union. Union International Vice President Martin
Gerber, who like Horner was presented by the Company as
an adverse witness, similarly testified that employee mem-
bers of in-plant organizing committees do not have authority
to speak for the Union unless expressly authorized to do so.'
In addition to holding general meetings at the union hall to
which all employees were invited, the Union (specifically
Horner) arranged special meetings for the committee mem-
bers, sometimes at the motel where Horner stayed when he
was in the Shreveport area. The committee meetings were
not generally announced to the employees, but noncommit-
tee members who wished to attend were permitted to do so.
Horner testified that there was only one special meeting for
the committee, and that this meeting took place around
February 1. His testimony in this regard was contradicted by
committee members who were presented as General Counsel
witnesses. Leo Savage testified that there were three or four
such meetings. Albert Kline, in his investigatory affidavit
referred to two or three committee meetings. At the hearing,
Kline testified that there were no special meetings just for
the committee. However, this contradicted his earlier testi-
mony that he attended almost all of the committee meetings.
The Company contends that the committee members acted
as agents of the Union in engaging in objectionable conduct
during the campaign. As consideration of this contention
involves to a considerable extent, consideration of the
alleged improper conduct, the question of agency will be
discussed, where appropriate, at subsequent points in this
decision.
The Company actively opposed the Union. The Company
posted antiunion literature on plant bulletin boards, and
Beaird-Poulan Division Personnel and Safety Director
Glenn Hibberts, who was in charge of the Company's
campaign, conducted a series of captive audience meetings
for groups of about 30 employees at a time. The in-plant
organizing committee also had its counterpart in an "Em-
ployees for Employees" committee, compose of antiunion
coordination with the Union's regional directors, who must initially approve
organizational campaigns in their respective areas. However, Gerber did not
assume his present position until June 1977. No other union official or
representative (other than the two who were directly involved in the 1976
campaign), were presented as witnesses by any party.
1367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who talked against the Union and distributed
antiunion literature as employees entered or exited employee
parking lots. The main plant is located in a semirural area,
and nearly all employees travel to and from work by
automobile, making use of the employee parking lot which is
adjacent to the plant.'
C. Objection 1: The Alleged Campaign of Fear and
Intimidation
In its decision, the court of appeals at n. 2, cited four
examples of alleged violence and intimidation. As the court
apparently attached particular significance to these matters,
I shall first deal with these and closely related incidents.
I. The alleged gun incident involving Ronald Ellison
In its decision, the court noted "a statement that one
employee brandished a gun after receiving an antiunion
handbill." The alleged incident involved employee Ronald
(Tank) Ellison. For the reasons discussed herein, I find that
no gun was involved. Rather, antiunion employee Jim
Johnson made an obscene gesture at Ellison, and Ellison
responded by pointing his finger and shouting at Johnson,
whereupon antiunion employee Bobby Clark spread a false
rumor that Ellison had a gun.
One night at about midnight, some 2 to 3 weeks before the
election, antiunion employees stationed themselves at the
entrances to the employee parking lot at the main plant, to
distribute their literature to employees who were leaving
work from the second shift. Consideration of the events
which took place requires some discussion of the physical
layout involved. The main plant fronts on and is located on
the east side of Flourney-Lucas Road. Between the plant and
Flourney-Lucas Road, i.e., directly in front of the plant,
there is a parking area for supervisory and office personnel
and visitors. The much larger employee parking lot, which is
surrounded by a high chain link fence, is located on the
south side of the plant. There is a driveway between the
plant and the lot. There are three gates by which employees
may enter or exit the lot. At one, which I shall refer to as the
guard gate, there is a guardhouse at which a guard is
normally posted. This gate is on the north side of the lot; i.e.,
facing the south side of the plant. The main, or middle gate,
fronts on Flourney-Lucas Road. As indicated by the
testimony of second shift general foreman Estel (Sonny)
Kirkly, the main gate is located some 75 to 100 yards from
the nearest front entrance to the plant. A third, or "south
gate," also fronts on Flourney-Lucas Road some 25 to 30
yards south of the main gate, and is therefore the farthest
At the hearing, I rejected the General Counsel's attempt to prove that the
Company assisted the antiunion committee in its distribution of literature.
The Regional Director, in his report on objections, discussed this aspect of the
case at length (although the Union did not file any objections to the election).
and found disparate treatment by the Company which favored the antiunion
employees. However, the Regional Director did not overrule any objection,
either in whole or in part, by reason of such alleged assistance or favoritism.
The court of appeals did not discuss this aspect of the case. I adhere to the
view that evidence of employer assistance or favoritism toward the antiunion
committee is irrelevant to the objections which are the subject of this
proceeding. If the Union engaged in conduct which interfered with the
employees' free choice in the election, then the election would have to be set
aside, regardless of whether the Company also engaged in improper or
gate from the plant. According to Ellison, the south gate is
normally closed at night. However, on the night in question
the gate was apparently open, as one of the antiunion
employees was stationed there.
On the night in question, antiunion employees Bobby
Clark and Joe Johnson stationed themselves at the main gate
to distribute literature. Employee Steve Davis was at the
guard gate.' Charles (Sandy) Davis, Steve's brother, was at
the south gate, and Jim Johnson, Joe's brother, stood on the
shoulder of Flourney-Lucas Road, near the south side of the
plant. No union adherents were distributing literature at this
time. The evidence does not indicate that a guard was
present at the guardhouse gate. However, two company
supervisors were present at the scene. Personnel Director
Hibberts and Foreman Sonny Kirkly were sitting in Hib-
bert's pickup truck, which was parked in the office parking
area, about 10 feet from the front of the plant. The truck was
facing southwest; i.e., toward Flourney-Lucas Road, but in
the direction of the employee parking lot. They were there in
order to observe the handbilling. Kirkly testified that he was
in the driver's seat; i.e., toward the plant. Hibberts initially
testified that he was in the driver's seat, but later admitted
that he was in the passenger seat. I find that Kirkly was in
the driver's seat, and that Hibberts was in the passenger seat;
i.e., nearest to Flourney-Lucas Road. The distinction is
significant, because Kirkly, whose view would have been
blocked by Hibberts, categorically testified that Ellison had
a gun, but Hibberts testified in sum that his knowledge of the
alleged gun was based on hearsay.
Ellison was General Counsel's only witness with respect
to the alleged incident. He worked on the second shift.
Ellison testified that he left the employee parking lot at
about 12:05 a.m., driving alone in his blue and white Buick,
and stopped at the main entrance. At the time there was a
lull in traffic leaving the lot; and in fact, no witness identified
any other moving vehicle as being in the vicinity at the time
of the incident. Ellison testified that there were two men
handbilling at the main gate, and they offered him a
handbill. Ellison asked which side it was, and they said it
was a company paper. Ellison said he did not want one, and
started to pull away. At this point, a "little short guy"
(evidently Clark), stepped alongside the car and tried to
push a handbill through the passenger window, which was
partially open. At this point Ellison stopped, said he did not
want that "bullshit", and threw back the handbill. Ellison
started to drive off on Flourney-Lucas Road in a northerly
direction (toward the plant), when a "chubby guy" (evident-
ly Jim Johnson), who was on the shoulder of the road, made
an obscene gesture at Ellison, known as the "finger sign," or
"shooting the bird." At this point Ellison stopped on the
unlawful activity. See NL.R.B. v. Santee River Wool Combing Co.. 537 F.2d
1208, 1212 (4th Cir.. 1976). However, as will be discussed more specifically.
the activities of the Company and the antiunion committee may. and have
been considered insofar as they formed part of the context of alleged improper
union activity.
Davis testified that he was handbilling at the middle gate. but his
testimony was contradicted by other company witnesses. Bobby Clark and Joe
Johnson each testified that they were the only ones who were handbilling at
the main gate, and Sandy Davis placed his brother at the guard gate. It is
unlikely that Steve Davis would have stationed himself at the main gate, as
this would have resulted in three employees handing out literature at the main
gate, and none at the guard gate.
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BEAIRD-POULAN DIVISION
shoulder of the road, got out of his car, and stood on the
driver side with his right arm across the top of the car and
his left hand on the door. Ellison asked Johnson why
Johnson was "f-g with me," because he was not bothering
Johnson. Johnson said he was not doing anything, and
Ellison drove off. Ellison categorically testified that he did
not have a gun with him, and that he neither owned or
carried a gun.
There are some inconsistencies between Ellison's testimo-
ny, his pretrial affidavit, and a diagram which he drew for
General Counsel in preparation for this hearing. However,
these inconsistencies pale into relative insignificance when
compared with the testimony of the Company's witnesses.'
In his affidavit Ellison admitted, and I so find, that he
pointed his finger at Jim Johnson. In his affidavit, Ellison
stated that he leaned out of the window of his car and told
Johnson to "get the f-k out" from in front of his car. In
fact, as Ellison admitted in his testimony, he got out of his
car, and Johnson was not blocking the car. As indicated,
Ellison testified that he stopped three times, although his
affidavit does not so indicate. However, his pretrial diagram
indicates three stops, although in a caption he referred to the
last stop as stop 2. In light of the diagram, which indicates
that Ellison stopped on a paved area, and the testimony of
Respondent's witnesses to the same effect, I find that Ellison
stopped in the road, and not on the shoulder. Also, in light
of his affidavit and the testimony of Respondent's witnesses,
I find that in his testimony Ellison probably understated the
amount of profanity which he used that night. With the
foregoing modifications, and for additional reasons discussed
below, I credit Ellison's testimony concerning the incident in
question."'
The Company presented testimony concerning the Ellison
incident by the five antiunion employees and the two
supervisors who were present at the scene. I shall begin with
Jim Johnson, because he was the closest to Ellison, and in
direct confrontation with Ellison, when the latter allegedly
"brandished a gun." Jim Johnson testified that he saw
Ellison hesitate about taking a handbill, and that Ellison was
"fussing and cussing" at his brother and Clark. Johnson
admitted that when Ellison pulled away, he (Johnson) gave
him the finger sign, whereupon Ellison started "hollering
and cussing" at him. According to Johnson, Ellison said that
if Johnson did not quit messing with him he was going to
shoot his "big fat white m- f- ass." Johnson answered that
he was just scratching his nose, and Ellison drove on.
Significantly, Johnson testified as follows:
And he had his arms up on his car, and he-I don't
know if he had a gun or not, but he put his left arm and
dropped it down like he was going to get something off
the front seat. [Emphasis supplied.]
In its decision, the court of appeals stated that the Union's witnesses
should be subjected to the "cleansing rigors of cross-examination." I assume
that the court anticipated that the Company's witnesses would also be
subjected to the same rigors.
"' As has appeared and will appear throughout this Decision. I have been
unable to credit in full the testimony of any of the principal witnesses. Much
of the testimony suggests a tendency to embellish or reise the facts in a
direction which is favorable to the witness' own point of view. Where as here,
2 to 3 years elapsed between the events in question and the hearing, and most
of the witnesses have a partisan interest in the outcome of the case, their
testimony must be viewed with considerable caution.
On cross-examination, Johnson flatly admitted that he did
not see a gun in Ellison's hand, and that he could not see if
there was a gun in the car because he was "too far away."
Johnson thereby inferentially contradicted the testimony of
any other witness who claimed to have seen a gun.
Bobby Clark, the other employee who had a confrontation
with Ellison, testified in sum that Ellison swore at him when
he tried to give Ellison a handbill, that he (Clark) simply
responded "thank you," and that Ellison drove on, ,where-
upon Ellison and Jim Johnson had an exchange of words
which Clark could not hear. Clark's direct examination was
concluded without any mention of a gun. On cross-examina-
tion, Clark testified that he saw a gun on the seat of Ellison's
car, at which time Clark "was almost standing up against
the car." Clark thereby contradicted affidavits which he had
furnished to the Company and to the Board's field examiner,
respectively, shortly after the election. In his affidavit to the
Company, Clark stated "I later heard he had a gun." In his
affidavit to the Board, Clark stated "I could not see anything
in his right hand. I could not see anything in his left hand
from where I was at." In neither statement did Clark claim
to have seen a gun. Clark testified that the Board's field
examiner would not let him state that he saw the gun, saying
that it was irrelevant. However, Clark testified that the
Company did not prevent him from saying anything. It is
evident that what the field examiner excluded was the
hearsay which was contained in Clark's affidavit to the
Company. In his testimony, Clark was unable to describe the
alleged gun. I find that Clark never saw a gun.
Clark's role in the matter of the alleged gun becomes
apparent when one considers the testimony of Joe Johnson,
who was the Company's first witness with regard to the
incident. Johnson, who was with Clark at the main gate, did
not claim to see a gun. He testified that he could not hear
what Ellison yelled at Jim Johnson, and that he saw nothing
in Ellison's hand, but that Clark told him "he saw a gun
laying on the seat." In sum, the false rumor began at this
point.
Steve Davis also declined to testify that he saw a gun.
Davis testified as follows:
Both hands were on top of the car. I'm not going to
say his hands were in a position like he was holding a
pistol. Both hands were on top of the car, touching one
another.
Davis' testimony is significant, not only because Davis
declined to say that he saw a gun, but also because Davis
contradicted, in a crucial respect, the subsequent testimony
of his brother, who did claim to see a gun in Ellison's hand."
Sandy Davis was the only witness who stated, both in an
investigatory affidavit to the Board, and as a witness at this
hearing, that Ellison had a gun.'" Sandy Davis was handbill-
ing at the south gate, but he testified that he came over to the
" Davis also contradicted Bobhby Clark and inferentially corroborated
Ellison with respect to their encounter. Davis testified that Clark slipped a
handbill through Ellison's car window, that Ellison threw it out, saying "keep
this shit out of my car." and that Clark replied "if you don't want it. you
shouldn't stop and roll your window down." However, Clark eIstlfied that he
merely preferred the handbill. and responded to Ellison's profanity with a
simple "thank you."
It is evident from his testimony that Sandy Davis is the "Employee A"
referred to in the Regional Director's Report in Objectins. It is also evident
(Contitued)
1369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
middle gate to see what was going on. Davis testified that
there was "no doubt" in his mind that Ellison had a gun in
his right hand. Davis testified that the gun was a blue steel
pistol with a short barrel. Davis further testified that Ellison
"shook his finger at us" with his left hand. Davis contradict-
ed his brother, testifying that Ellison never put both of his
hands on top of the car. Davis also contradicted his own
investigatory affidavit, in which he stated that Ellison
pointed a finger of his right hand at the employees, and with
his left hand, pointed the gun at the ground. Davis conceded
that if such were the case, he could not have seen Ellison's
left hand, because Ellison was standing on the driver side of
the car. It is evident that Davis, realizing that his original
version was implausible, decided to accommodate his testi-
mony to the needs of this litigation." I find that Davis was
not a credible witness, and I do not credit his testimony that
he saw a gun.
The remaining witnesses concerning the incident were
Hibberts and Kirkly, neither of whom gave the Board an
affidavit concerning the matter. Hibberts testified that he
believed, or felt that Ellison had a gun, but that he could not
swear to it. When, on cross-examination, Hibberts was
questioned as to the basis for this belief, he admitted in sum,
that it was based on hearsay. Hibberts testified that Kirkly
and Joe Johnson each said something to him about a gun,
that no one said that Ellison did not have a gun (although
Hibberts never spoke to Ellison about the matter), and that
Ellison was wagging his hand, which is consistent with the
fact that Ellison pointed his finger at Jim Johnson. However,
Kirkly testified that he did not mention a gun to Hibberts at
the time of the incident. Kirkly testified at one point that he
later discussed with Hibberts what they saw; but at another
point he testified that he never discussed the matter with
Hibberts. It is evident that Hibbert's alleged information
came from Joe Johnson, who had not seen a gun, but was
simply passing on what Bobby Clark had told him. In short,
the false rumor was spreading.
Foreman Kirkly testified that he and Hibberts were about
80 to 90 feet from Ellison when Ellison got out of his car.
Kirkly testified that he was "absolutely sure" that he saw
Ellison with a gun in his hand, holding it on top of his
(Ellison's) car. As indicated, Jim Johnson and Glen Hib-
berts, who were closer to and had a better view of Ellison,
both declined to testify that they saw a gun. Therefore, in
order to have seen a gun in these circumstances, Kirkly must
have had exceptionally good powers of observation and
perception. However, Kirkly demonstrated otherwise. He
testified that he did not know the names of the employees
who were handbilling at the gates, but that there were three
of them, each about 6 feet tall. Even Hibberts recognized
from their respective testimony that "Employee G" is Steve Davis, "Employee
J" is Bobby Clark, and "Employee K" is Jim Johnson. Joe Johnson is
apparently "Employee H.'" although elsewhere in the Report Employee H is
described as a union adherent.
" Davis did not receive a copy of his affidavit to the Board. However he
also furnished an affidavit to the Company, and he may have had the benefit
of the Regional Director's Report, which at 8., quoted the pertinent portion of
his affidavit.
" I do not agree with the Company's argument that Chateau de Ville. Inc..
233 NLRB 1161, 1169 (1977), indicates a departure from the above principle,
That decision. insofar as pertinent, involved a question of remedy. rather than
one of whether improper conduct occurred. Having found that the employer
engaged in violations of Section (a)(I) and (3) at one of its facilities, when an
that the handbillers included the diminutive Bobby Clark,
who stands all of four feet eleven inches tall. If Kirkly saw
Ellison with a gun, he probably would have promptly
mentioned that fact to Hibberts, as the very reason for their
being there was to observe the handbilling. However, by his
own admission Kirkly did not do so. If Kirkly were
"absolutely sure" that Ellison held a gun in his hand, then it
is probable that the Company would have referred him to
the Regional Director during the investigation of the
Company's challenges to the election. However, the Compa-
ny did not do so. I find that Kirkly never saw a gun, and that
his testimony was simply an attempt to shore up a weak
element of the Company's case. In sum, as I indicated at the
outset of this discussion, I credit Ellison's testimony that he
did not have a gun. Moreover, I cannot help but take note of
the circumstances in which these encounters took place.
Ellison, a lone black union adherent, was confronted at night
on a dark road by five white antiunion employees, with two
supervisors and possibly a guard looking on. It is unlikely
that Ellison, and much less the Union, would have chosen
this time and place to wage "a campaign of fear and
intimidation" against the antiunion employees. It is evident
that Ellison was acting defensively. Ellison reacted to Jim
Johnson's uncalled for gesture in a manner which was
perfectly reasonable, namely, with some choice profanity.
Compare, Brewers and Malisters Local Union No. 6, 301
F.2d 216, 219-220 (8th Cir. 1962). He did nothing which
constituted objectionable conduct. Therefore, as there are no
other allegations against Ellison, it is unnecessary for me to
consider wherher he was a Union agent. In essence, what
occurred was that antiunion employees spread a false rumor
that Ellison had brandished a gun. There is Board authority
to the effect that a representation election may be set aside
where the election was conducted in an atmosphere of fear
and violence, even in the absence of evidence that such
conditions were created by the acts of union or employer
agents. See, e.g. Diamond State Poultry Company. 107
NLRB 3, 6 (1953). However, I am unaware of any authority
which suggests that the result of an election can be set aside
because of a false rumor which was circulated by adherent of
the losing side. On the contrary, the Board "has consistently
taken the view that wrongdoers cannot be the beneficiaries
to their wrongdoing irrespective of who the wrongdoers
were." Willis-Shaw Frozen Express, Inc., 209 NLRB 267,
269 (1974). Moreover, a contrary result in this case would
run counter to the long established principle that the
subjective reactions of employees are irrelevant to the
question of whether there was, in fact, objectionable con-
duct. See G. H. Hess, Inc.. 82 NLRB 463, fn. 2 (1949)."
election was pending at another of its facilities about 20 miles away, the
Administrative Law Judge received evidence, and so found. that the
employees at the second facility learned of the law ful conduct. In view of the
distance between the facilities, such knowledge could not be presumed. In the
present case, I have presumed that if the union or union adherents engaged in
misconduct, that word spread of such misconduct: and particularly in view of
the closeness of the election, that a sufficient number of voters learned of such
misconduct to have affected the results of the election. The question then
becomes whether such conduct, viewed objectively, warrants setting aside the
election. Such question does not depend on the varying subjective reactions of
potential voters, some of whom may be more sensitive than others. Insofar as
some courts of appeals have suggested otherwise, I respectfully disagree, and
adhere to the Board view which I am bound to follow.
1370
BEAIRD-POULAN DIVISION
2. The alleged harassment of Charlotte Bailey
In its decision, the court of appeals noted evidence of "a
threat to one employee that her 'kids could come up missing
or get hurt"' and of "a union supporter forcing another
employee's car off the road." As both incidents involve
employee Charlotte Bailey. I shall consider them under the
general topic of alleged harrassment of Bailey, who was one
of the principal employee opponents of the Union. Bailey
initially organized the group known as "Employees for
Employees," and in her own words, campaigned "vigorous-
ly" against the Union.'
Employee Brian Morton signed a union authorization
card. He wore a union button, and talked in favor of the
Union to other employees. However, he was not a member
of the in-plant organizing committee, nor did he wear a
committee button. Morton and Bailey both worked on the
first shift at the Flourney-Lucas plant.' Bailey testified that
one afternoon in April, shortly after the end of the first shift,
in the final assembly area, Morton told her that she should
not be talking against the Union, that the Union knew when
she came and went, and that one of her children could come
up hurt or missing. According to Bailey, Morton added that
her house and car could be damaged, and that she could find
broken glass in her driveway. Bailey testified that the next
morning there were broken beer bottles in her driveway, and
that nothing like this occurred before or since. Bailey further
testified that employees Herbert Robinson and one Adams
were present at the alleged conversation, and that Morton
was accompanied by another employee whose identity she
could not recall. Adams was not presented as a witness.
Robinson, like Bailey, testified as a Company witness.
Robinson testified that one afternoon at about 3:30, he was
present at a conversation between Bailey and Albert Kline,
and that M.L. Adams and other employees, including some
with union buttons, were nearby. Robinson testified that the
union adherents were talking to Bailey, and that one of
them, specifically Kline, said: "Watch what she's doing,
because her husband works and her kids left at home."
Bailey never testified that she had such a conversation with
Kline, although she testified as to other conversations with
Kline. If Kline were present when Morton made the alleged
threat, then Bailey would have almost certainly remembered
his presence, as Kline was the person who allegedly tried to
run her off the road. It is possible that over a period of more
than 2 years, a witness could become confused as to the
identity of a particular speaker. However, Robinson's
testimony as to the identity of the speaker was consistent
with his investigatory affidavit, dated May 21, 1976. In his
affidavit Robinson indicated that Morton was present, but
that Kline made the threat. Robinson admitted that this was
the only such conservation at which he was present.
Morton testified that some 2 to 3 weeks before the
election, at about 3:40 p.m., he had a conversation with
Bailey in the plant. Morton testified that he told Bailey that
she should go home and tend to her children instead of
tending to a man's job. He denied making the threats
attributed to him. According to Morton, Bailey was talking
about the Union at this time. However, on cross-examina-
" It i evident from her testimony hat Bailey the "Employee L" referred
to in the Regional Director', Reprt.
tion Morton testified (as was stated in his affidavit) that he
said she had better go home and watch her kids before
somebody runs over them. According to Morton, he spoke
to Bailey in this manner because he felt it was not a woman's
place to interfere with a man's job; i.e. election campaigning,
and because about 2 weeks earlier he nearly struck one of
Bailey's children while driving home from work. Morton
testified that the near accident occurred in front of Bailey's
home when the boy, who was riding a bicycle, swerved into
the road. Morton explained that he did not previosly
mention the alleged incident to Bailey, as they were not
speaking to each other because of their differences about the
Union. However, at another point in his testimony Morton
stated that Bailey did not know that he favored the Union.
Morton admitted that he did not speak in a similar manner
to any female union adherent. Morton also failed to
correctly identify Bailey's children from school class pictures
which were taken in 1976. (Morton and Bailey were
neighbors at that time, but Morton subsequently moved and
had not seen the children for some 2 years.)
The credibility question thus posed is not an easy one. In
essence, I am confronted with the Morton's version, which
contains internal inconsistencies, as against the versions of
Bailey and Robinson, which are inconsistent with each
other. Moreover, as will be discussed, Bailey was not above
embellishing the facts. As the question of Morton's threats
cannot be wholly separated from other alleged harrassment
of Bailey, I shall proceed to consider these other acts before
resolving the credibility issue at hand.
Bailey testified that in April Albert Kline spoke to her
several times about her husband, either in the plant or in the
employee parking lot. Bailey worked at Bingham Pump,
where the Union conducted an organizing campaign, and he
suffered a nervous breakdown while at work. Kline was a
member of the in-plant organizing committee. He wore a
button and shirts which identified him as an organizer, and
he distributed union literature at the plant or parking lot
entrances, sometimes but not always in Horner's presence.
Bailey testified that Kline told her that her husband was
crazy, so crazy that he was the only one who did not sign a
union card, and (after a leading question,) that the Union
had ways of taking care of him. Bailey further testified that
almost every day in April, Kline would closely follow Bailey
in his car, and then would pass and cut closely in front of
Bailey, forcing her either to throw on her brake or go off the
road in order to avoid hitting Kline's car. Bailey testified
that she verbally reported these incidents to the Shreveport
police and to the Sheriffs office, who promised to watch for
Kline's car, but that to her knowledge no action was taken.
Bailey testified that during this period Kline drove a black
car (which she reported to the police) and also sometimes
drove a Volkswagen. Bailey's testimony was partially cor-
roborated by company witness Norma Wilson, whose direct
examination was replete with leading questions. Wilson
testified that one day she was driving from the plant with
fellow employee Sandra McCarty to get lunch, when Kline
pulled out from behind them and in front of Bailey (who was
immediately in front of Wilson), thereby forcing Bailey to hit
her brakes. Wilson testified that she reported this incident to
' All of the incident alleged under Obhjctlion I ivoled employees at the
Flourlley-Lucas plant
1371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the police. Employee Michael Hickman also testified as a
company witness concerning Kline's driving (and that of
Bailey), but his testimony was inconclusive. Hickman
testified that one afternoon, leaving the plant, he saw Kline
drive around Bailey's car. Bailey slowed down, but did not
stop. Hickman testified that there were two cars between
him and them, that he could not recall what kind of car
Kline or Bailey was driving, and that he did not know
whether this occurred in a no-passing zone. He did not
report the matter to the police. Hickman testified that he has
sometimes seen Bailey pass other cars on Flourney-Lucas
road.
Kline, in his testimony, categorically denied that he ever
tried to force Bailey off the road, or say that her husband
was crazy, or threaten harm to him or their children because
of antiunion activities, or say that the Union had ways of
taking care of her, or suggest any of the foregoing or other
harm. Kline testified that he sometimes passed Bailey's car,
and that Bailey sometimes passed his car, but that he did so
only where legally permitted. Kline testified that in April
1976 he drove a blue Volkswagen, and that although he
subsequently had a black Barracuda, he did not acquire that
car until after the election. If this were not true, the
Company could have obtained or demanded production of
automobile registration records which would have shown
otherwise. However, the Company did not do so, and I have
no reason to question Kline's testimony in this regard.
Kline's testimony was corroborated in a crucial respect by
Sandra McCarty, who was presented as a General Counsel
witness. As indicated, according to Norma Wilson's testimo-
ny, McCarty was with Wilson when Kline allegedly cut in
front of Bailey. McCarty testified that she knew both Kline
and Bailey, that she was a good friend of Wilson, and that
she and Wilson frequently went together to get lunch, but
that she never saw Kline attempt to force Bailey off the road.
McCarty is a former employee who was not identified in any
testimony as either pro or antiunion. McCarty left the
Company in January 1978, and at the time of testimony
worked for a major automobile manufacturer in another
city. However, she was not a member of any labor
organization. Almost alone among the many witnesses
presented in this hearing, she had no apparent interest in the
outcome of the case. Therefore, her testimony is entitled to
special weight. In light of her testimony, I do not credit
Wilson's testimony concerning the alleged incident. I further
find that Kline did not, at any time material, intentionally
try to force Bailey off the road or cause her to collide with
his or any other car. If, as alleged by Bailey, Kline
repeatedly engaged in such conduct, and Bailey complained
to the police, then its probable that the police would have
looked into the matter, or that Bailey would have lodged a
formal complaint of traffic violations. However, no such
complaint was filed, no law enforcement officers were called
to testify, and no police records were produced. Moreover
Bailey's identification of the black Barracuda indicates that
if such incidents occurred, they probably occurred after the
election. Kline may have passed Bailey on the road, and
Bailey may have passed Kline, and either may have done so
in a no-passing zone, but such conduct does not constitute
I is evident from his testimony that Savage is the "Employee M" referred
to in the Regional Director's report on objections.
interference with employee free choice in an election. As to
the alleged threats, to which there were no apparent
witnesses, I have reservations concerning the overall credi-
bility of both Bailey and Kline. Therefore, I shall pass on
this matter after considering all of the allegations of alleged
harrassment of Bailey.
Leo Savage was a member of the in-plant organizing
committee. He was outspokenly prounion, wore a committee
button, and distributed union literature, sometimes in
company with Carlton Horner. Bailey testified that on
several occasions, sometimes in the presence of other
employees, Savage told her that she should not be talking
against the Union, that the Union had ways of getting back
at people who talked against them, and that her house or car
could be damaged. According to Bailey, Savage said that if
she continued to talk against the Union, charges would be
filed against her with the Union, and she would be fired.
Bailey testified that Savage accused her of going to bed with
Hibberts and with her former supervisor. Savage allegedly
told Bailey that they had been friends, but could not be as
long as she was against the Union, but that they could be
friends again when the Union got in. Bailey testified that
between such conversations, she found a small slit and screw
in a back tire of her car. However, in her investigatory
affidavit she stated that her husband found a screw and a
nail in the tire. Nothing was said therein about a slit. The
difference is significant. A car might accidently run over a
screw and a nail, but a slit suggests an intentional act. I find
that her testimony indicates a tendency on her part to
embellish facts.
Savage, in his testimony, denied threatening any harm to
Bailey, her family, or her property, and denied that he
accused her of sleeping with the supervisors. Savage testified
that on one occasion when both pro-and antiunion employ-
ees were distributing literature outside the plant he offered a
union handbill to Bailey's husband, and as a joke, offered
one to Bailey, and that Bailey knocked the handbills out of
Savage's hand and into the mud. Savage testified that the
antiunion employees yelled obscenities at the union adher-
ents and called them "company stooges," but that he did not
call them names, and the union adherents did not use
obscenities. In his affidavit, Savage stated that the antiunion
group called them "union stooges."" "Company stooge"
would be a strange name to direct at employees who favored
a union which was opposed by the Company. Savage's
testimony suggests a Freudian slip. It is evident from this
and other testimony adduced at the hearing, that both sides
were hurling verbal abuse and obscenities at each other.
Savage testified that on other occasions, specifically several
times a day, Bailey tried to talk him away from the Union,
but he always replied by saying that he was not supposed to
talk about the Union, because he did not wish to waste his
time with her. Savage probably exaggerated the number of
times that Bailey spoke to him, but it is not inherently
improbable that Savage would have avoided discussing the
Union with Bailey. Bailey's antiunion position was well
known, and Savage may well have suspected that Bailey was
trying to trap him into violating company rules. At this
point, with the indicated reservation, I am not persuaded
1372
BEAIRD-POULAN DIVISION
that either the testimony of Bailey or that of Savage
concerning the alleged threats is inherently implausible.
Bailey also testified concerning a conversation with
Carlton Horner. Her testimony, and that of other witnesses,
indicates that this was the incident outside the plant which
was referred to by Savage in his testimony. Bailey went over
to Horner and complained because she had heard rumors
that Horner spoke about her and her husband at a union
meeting. According to Bailey, Horner responded by saying
that he knew who she was, that she was illiterate and stupid,
and that her husband was crazy, a loony, and a son-of-a-
bitch. Bailey testified that she was handbilling with Herbert
Robinson and two other antiunion employees. Robinson also
testified concerning the incident. Robinson testified that
Horner called the antiunion employees "stupid bitches," and
told Bailey that her husband was a loony and that it ran in
the family. Robinson testified that Savage threw leaflets on
Bailey's car. (Savage testified that he placed a handbill on
the car after Charlotte Bailey knocked his handbills into the
mud.) Horner testified that he was present at the incident.
He testified that he never used profanity or abusive words
toward Bailey or her husband. According to Horner, Savage
and Bailey exchanged words, but he did not hear all of what
they said.
I find that the truth falls somewhere between these
conflicting versions. I find that like Ronald Ellison, Bailey
overreacted to what she considered to be a provocative
attempt to distribute distasteful literature, whereupon Sav-
age overreacted by letting loose a stream of verbal invective.
The matter was essentially a personal one between Bailey
and Savage. It was Savage and not Horner who verbally
abused Bailey. Horner was an experienced and mature union
organizer. He did not impress me as the type of person who
would publicly engage in verbal invective against an employ-
ee at a time when it was important for his union to obtain
employee goodwill. I do not agree with the Company's
argument (br. p. 25), that Horner, as a witness, demon-
strated a tendency to easily lose his temper. Horner was
simply expressing his or the Union's own point of view when
he suggested that the Company ran its plant in an arbitrary
manner. However, Horner reacted calmly when company
counsel sought to provoke him by an argumentative ques-
tion. It is undisputed that the union adherents made no
threats at the handbilling incident. Verbal abuse among
employees, absent threats, does not constitute objectionable
conduct, particularly when, as in the present campaign, such
invective is freely utilized by adherents of both sides.
Anether Hall was a member of the in-plant organizing
committee. She wore a committee button and union buttons
and shirts. Bailey testified that in April, Hall told her that
she should not be talking against the Union, and that the
Union had ways of getting back at people who talked against
them, According to Bailey, Hall threatened that if she
continued to talk against the Union, and the Union got in,
charges would be filed against Bailey, and she would be fired
or the steward would pay no attention to her problems.
According to Bailey, Hall also said that no one paid any
attention to her because her husband was crazy. Hall, who
was presented as a General Counsel witness, denied threat-
ening that the Union would not represent Bailey or would
file charges against her. Hall testified that during the week
before the election, she was at her work station when Bailey
approached her and suggested that the Company might close
the plant because of the Union. According to Hall, she
became "tense," but simply responded that the Union would
probably help Bailey, and went on working. Hall testified
that she could not specifically recall any other conversations
with Bailey about the Union, but that it was possible that
there were such conversations. Hall further testified that she
did not know Bailey's husband, and did not recall talking
about him.
Bailey also testified that in April she received anonymous
telephone calls in which nothing was said, and that she has
subsequently received such calls, but not to the same extent
as during the election campaign. She testified that she did
not report the calls to the telephone company because she
could not afford to change her number. Bailey also testified
that union adherent Jason Williams kept staring and
grinning at her. I attach no significance to this last
testimony.
To recapitulate, Bailey testified as to alleged threats by
Brian Morton, Albert Kline, Leo Savage and Anether Hall.
As indicated, I have reservations about the credibility or
reliability of some of the testimony of nearly all of the
witnesses involved. I am not persuaded that the Company
has shown that it is more probable than not that the alleged
threats were made. On the contrary, the evidence, including
surrounding circumstances tends to tilt somewhat in favor of
the Union. Although Bailey testified that some of the threats
were made in the presence of other employees, only one
corroborative witness was produced with respect to such
threats, and that witness, Herbert Robinson, seriously
contradicted Bailey by attributing to Kline, threats which
Bailey alleged were made by Morton. Bailey, in her capacity
as a quality control and inspector employee, had the run of
the plant, whereas the named union adherents worked at
specific locations. This fact, coupled with Bailey's own
outspoken and aggressive opposition to the Union, tends to
indicate, as testified by Morton, Savage, and Hall, that it was
Bailey who initiated their conversations about the Union.
Bailey also indicated in her testimony that she had no
hesitation about complaining to Carlton Horner when she
believed that she had been an improper subject of conversa-
tion at a union meeting. If Bailey unhesitatingly complained
about such a matter, then it is probable that Bailey would
have complained, and loudly so to Horner if any union
adherent dared threaten her. However, she made no such
complaints. Moreover, Bailey's testimony was not corrobo-
rated by substantial and credible evidence that the union, or
union adherents sought to carry out such alleged threats. As
indicated, I do not credit her testimony concerning Kline's
driving, and her testimony concerning damage to her
automobile tire is suspect. Therefore, I am inclined to be
skeptical of her uncorroborated testimony concerning anon-
ymous phone calls and broken glass in her driveway, which
even if credited would be insufficient to indicate a pattern of
conduct attributable to the union or union adherents. In
light of these factors, and Bailey's own demonstrated
tendency to exaggerate the facts, I am not persuaded that the
union adherents threatened Bailey as alleged by Bailey in her
testimony.
1373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Morton, I find, as admitted by Morton in
his affidavit and on cross-examination, that in response to
Bailey's antiunion talk, Morton told her that she had better
go home and watch her kids before someone ran over them.
In context, it is evident that Morton was voicing his
annoyance over Bailey's ceaseless palaver. Morton's state-
ment cannot reasonably be viewed as a threat of retaliatory
action, regardless of Bailey's own subjective reaction. There
is no evidence that Morton was prone to violence, or that he
was privy to some union-hatched plot to do violence to
Bailey or her family. Indeed, Morton was not even on the in-
plant organizing committee. I have no reason to disbelieve
his assertion that he had nothing to do with the Union
beyond signing a union card and talking in its favor.
Moreover, Bailey had no reason to believe that Morton
could speak authoritatively for the Union. In sum, I am not
persuaded that Morton threatened Bailey with harm to her
children in order to dissuade Bailey from engaging in
antiunion activity.
3. The alleged harassment of Willie Daniel
In footnote 2 of its decision, the court of appeals finally
noted evidence of "an employee's windows broken after he
refused to act as a union in-plant organizer." The employee
in question was Willie "Chili" Daniel.' Daniel signed a
union authorization card, attended two or three union
meetings, and signed an authorization for the union to use
his name as a member of the in-plant organizing committee.
However, at some point Daniel changed sides, and helped to
distribute antiunion literature.'' Daniel testified, without
contradiction, that prior to the election Anether Hall, who
was a friend of his, said that the Union would take him to
court because he quit going to union meetings. I credit
Daniel. Hall's statement, if uttered by or on behalf of a labor
organization or an employer, would constitute unlawful
interference with employee rights. Daniel had an unqualified
right under Section 7 of the Act to change sides and to
refrain from attending union meetings, and Hall's statement
constituted a threat which was demonstrably calculated to
coerce him into remaining with the Union. See, Clyde Taylor
Company, 127 NLRB 102, 108 (1960). However, pending
consideration of the remaining alleged improper conduct
under Objection 1, I shall defer ruling on the questions of
whether Hall spoke as an agent of the Union, and if not,
whether without regard to agency, her threat contributed to
an atmosphere of fear and intimidation which would
warrant setting aside the election.
It is undisputed that restroom walls in the plant were
marked with graffiti concerning Daniel and his family,
relating to his opposition to the Union, which was vulgar,
insulting, and vicious. The evidence fails to indicate the
author or authors, and the Company repainted the restroom
walls prior to the election. The graffiti contained no express
or implied threats of reprisals, nor except as indicated above,
is there evidence that anyone expressly or impliedly threat-
ened Daniel with reprisal because of his opposition to the
It is evident from Daniel's testimony that he is the "Employee E" referred
to in the Regional Director's report.
'' At the hearing. I excluded. as irrelevant, questioning concerning the
reason or reasons for Daniel's change of po.ition.
Union. Absent threats, such graffiti, like abusive namecall-
ing directed at Charlotte Bailey or her husband, cannot be
deemed as objectionable conduct which would warrant
setting aside an election.
Daniel testified that on April 1, while he was away from
home, windows and the rear glass door of his house were
broken. He testified that there was blood on one of the
windows, and that nothing was taken. Daniel admitted that
he did not know who did the damage, and that he did not see
any employee at work who was cut up or bandaged. Daniel
also testified that the home of his next door neighbor was
broken into twice. Daniel's mother reported the damage to
the police, but no evidence was presented concerning any
police investigation, if there was one. I find that the
evidence, which is meager at best, tends to indicate a
unsuccessful attempted break-in rather than intentional
vandalism. Specifically, such an attempt is suggested by the
presence of blood on the window. It is more likely that
simple vandalism would be carried out at a distance, such as
by the throwing of a rock or other missile. Moreover, as
indicated, no threats were made against Daniel, other than
one of court, i.e., peaceful action, but there was evidence that
Daniel's neighborhood was the subject of attempted break-
ins. In sum, I find that the evidence tends to indicate that the
damage to his house was unrelated to the matter of his
antiunion activities.
4. The Cameron Mitchell incident
Cameron Mitchell signed a union authorization card,
solicited other employees to sign cards, and wore a union
button. However, Mitchell testified that he did not attend
union meetings and was not a member of the in-plant
organizing committee. His advocacy of the Union was
relatively low key. Antiunion employee Joe Johnson testified
that Mitchell told people that he was not taking sides.
Mitchell was not wearing a union button or other insignia on
the day of the incident in question.
One morning, about a week before the election, Mitchell
drove into the employee parking lot before reporting to work
on the first shift. Joe Johnson, Jim Johnson and Steve Davis
were distributing antiunion literature."' Mitchell, without
comment or gesture, declined to take a handbill. It is
evident, not only from Mitchell's testimony, but also from
that of the company witnesses, that Steve Davis had a habit
of yelling "chicken shit" at persons who refused to accept
antiunion literature. In common parlance, "chicken shit"
means coward. It is further evident that Davis indulged in
his habit on this occassion, and that whatever Mitchell did
thereafter was in reaction to Davis' conduct, and was not
directed at nonabusive distribution of literature.
Mitchell testified that as he approached the parking lot,
the antiunion employees proferred handbills, but he rolled
up his window and waived them on, whereupon Davis kept
yelling "you're chicken shit." Davis testified that some 2
weeks earlier, an employee who refused to take a handbill
"gave us a funny look" so "I called him a chicken shit."
" Mitchell in his testimony initially identified Sandy Davis as being one of
the individuals involved, hut he subhequently and correctly indicated that it
was Sandy's brother Steve.
1374
BEAIRD-POULAN DIVISION
Davis testified that Mitchell also gave "one of those funny
looks," so he called Mitchell chicken shit. Davis testified
that he could not recall shouting obscenities or giving the
finger sign on other specific occasions, but that he was not
disputing that it happened. Jim Johnson, in his investigatory
affidavit, admitted that Davis yelled "chicken shit" at the
driver of the car which preceeded Mitchell on the day in
question. In light of the admissions of Davis and Johnson, it
is evident that Davis' language was precipitated by Mitch-
ell's refusal to accept antiunion literature and not as
suggested by Davis, because Mitchell nearly ran over him.
Joe Johnson testified that shortly after work began, when
he was in his work area, Mitchell came up to him, saying
that he had "heard that chicken shit." According to
Johnson, Mitchell grabbed him around the shoulders, put
his finger under Johnson's throat, and said he did not want
to hear it anymore.. Mitchell held Johnson in this position
for a while, and then left, saying that he was "going after
Steve." However, Jim Johnson testified that Mitchell next
came up to him. According to Jim Johnson, Mitchell said
that he did not like people calling his friends names.'
Mitchell poked Johnson in the chest and said he was going
to whip his ass. Johnson then said it was Steve Davis who
called him a name at the gate. Mitchell then went to Davis.
Davis, whose testimony was corroborated in part by Jim
Johnson, testified that Mitchell came up to him and asked if
he was a pervert. Mitchell said that he and his friends
"didn't dig that word." According to Davis, Mitchell then
picked up an air gun with a drill point and jabbed the drill
point into a table, thereby blunting the point, saying that he
would bust Davis' face. It is undisputed that Mitchell did
not point the drill at Davis. Davis testified that Mitchell said
that one day he would catch Davis outside and would stick a
number 9 (slang for shoe) in Davis' balls. At this point a
foreman came up and told the employees to get back to
work. Davis admitted that later in the plant lunchroom,
Mitchell apologized to him over the incident. Mitchell said
that he had flipped his lid, and that he had "never taken a
stand against it one way or the other."
Mitchell testified that he went up to the "younger
Johnson," evidently Joe and asked who was calling him
chicken shit. Johnson answered that he did not know
anything about it and that it was not him. According to
Mitchell, he then went over to Davis and accused him
yelling chicken shit. Mitchell said that if Davis and the
Johnson brothers ever harassed Mitchell and his friends
again, Mitchell would take care of the situation after work.
Mitchell testified that Davis tried to ignore him, pretending
that the matter did not happen, whereupon Mitchell picked
up a small tool (not the large air gun described by the
company witnesses), and banged it on a bench, while yelling
and pointing his finger at Davis.
I find that the incident in the plant took place substantial-
ly as described by the witnesses, although not without
exaggeration by the company witnesses and understatement
by Mitchell. It is unlikely that Mitchell would have found it
necessary to apologize to Davis if he had not acted in an
irrational manner. It is also evident that Mitchell ap-
proached Jim Johnson before he went to Davis, as it was
?' Mitchell testified that the previous day. when the wife of a friend of
Mitchell dropped off the friend at work. Sandy Davis yelled at the wife and
made an obscene gesture.
through Jim Johnson that he confirmed that Davis was the
employee who called him chicken shit. However, if Mitchell
had intentionally damaged an expensive instrument, it is
unlikely that the foreman would have simply ignored or
overlooked such a matter. I further find that the entire
incident was a personal matter stemming from Mitchell's
resentment of abusive language by the antiunion adherents.
At no point during his tirade did Mitchell expressly or
impliedly threaten or even suggest that the antiunion
employees should refrain from distributing their literature.
Instead his words and actions related solely to his personal
resentment of their abusive language and gestures. Indeed,
Mitchell indicated to Davis and other employees, including
Joe Johnson, that he did not wish to be identified as a union
adherent. Therefore, I find that Mitchell's words and actions
did not constitute objectionable conduct which would tend
to interfere with employee free choice in the election.
5. The alleged bathroom incident involving Sandy Davis
Sandy Davis testified that about 2 or 3 weeks before the
election, he entered a plant bathroom and saw union
adherents Jason Williams and Albert Kline. They stopped
talking when he came in. According to Davis, he went to a
stall and closed the door behind him. Davis testified that
while he was in the stall, Kline said, in a voice designed to be
overheard, that they knew his wife and children were home
by themselves, that he had better watch what he was doing,
and that he was not messing with kids' stuff. Davis'
testimony, including the investigatory affidavit which he
gave on May 19 (see also Regional Director's Report, at p.
4) was so permeated with inconsistencies and inherent
improbabilities as to render his testimony unworthy of belief.
He testified at one point that they did not mention his name,
and at another that they referred to "Sandy's" family. Davis
variously testified that they said that the "committee" was
not messing with kid stuff, and that the "Company people"
were not messing with kid stuff. He testified at one point
that no one else was present, and at another point that a
fourth person was present. Davis testified that they were
gone when he came out of the stall, but in his affidavit he
stated that they were still in the bathroom. Most serious, his
affidavit version was completely at odds with his testimony.
In his affidavit, Davis stated that he was in a stall when
Williams and Kline came into the bathroom (he recognized
their voices); and that they talked about the campaign,
saying that "this type of people better watch what they are
doing, because they are not messing with kid stuff." Nothing
was said in the affidavit about a threat to Davis or to his
family. Davis asserted that the Board's field examiner
refused to put down testimony concerning that threat.
However, it is evident from his testimonial discourse that the
field examiner merely declined to put down his assertions
concerning rumors which were circulating through the
plant. Moreover, Davis was unable to explain, if the affidavit
were correct, how Williams and Kline could have known
that he was in the bathroom, since they were separated not
only by the stall door, but by a petition between the toilet
and sink areas. As heretofore indicated, Davis was one of the
1375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least reliable witnesses concerning the alleged gun incident
involving Ronald Ellison, and Davis' testimony in that
matter evidenced a readiness to embellish the facts. Williams
and Kline did not testify concerning the alleged bathroom
incident. Nevertheless, I find that the testimony of Davis in
this matter was so demonstrably unreliable as to warrant its
being totally disregarded.
6. Additional alleged threats and abusiveness involving
identified persons
Employee Carol Robinson, nee Bangs, testified that she
signed a union card, but that about 2 or 3 weeks before the
election she went to the Union hall to get her card back from
Horner. Robinson was not a member of employees for
Employees, although her future husband Herbert Robinson,
also a company witness, was active in that group. According
to Carol Robinson, Horner called her a stupid bitch, said he
did not carry her card in his pocket, and yelled that she
would be sorry about all this. Robinson admitted that the
card was returned to her by mail prior to the election.
Horner testified that he told Robinson that he was not in
possession of the card, but if she was not in favor of the
Union he would see that she got it back. Robinson persisted
in demanding the return of the card, and Horner assured her
that the card would be returned to her by registered mail,
which was done. Robinson did not give an affidavit in the
Regional Director's investigation of the Company's objec-
tions to the election. Therefore, preliminarily her testimony
presents the question of whether this and other such matters,
which were not brought to the attention of the Regional
Director, can be raised for the first time in this proceeding.
At the hearing, I ruled that matters could be presented in
evidence, provided that they were relevant to the specific
objections, namely, Objections I through 4. The Union in its
brief has requested me to reconsider that ruling. I have done
so, and I adhere to the ruling. The court of appeals held that
the Company was improperly denied a hearing on its
objections. The Company should not now be given a hearing
which is narrower in scope than the hearing which it would
have received if the Regional Director had originally
directed the hearing. Compare, Newport News Shipbuilding
and Dry Dock Company, 243 NLRB No. 49 (1979), JD at
19. To narrow the hearing would in effect be penalizing the
Company for taking an appeal in this case. This does not
mean that the Company may, through the mechanism of its
catchall Objection 5, inject matters which are not relevant or
material to any specific objection. Nor does it mean that the
Company's failure to present specific allegations in the initial
investigation has no evidentiary significance. On the con-
trary, as will be discussed, such failure, coupled with other
: Davis also testified that there was bathroom graffiti concerning him. The
graffiti was insulting and vulgar. hut contained no express or implied threat of
harm. Therefore, as with Chili Daniel, the graffiti did not constitute
objectionable conduct for the purpose of this proceeding.
' The principal case authority relied on by the Union is Soutern Paper Box
Comnpany. supra. 207 NLRB at 58 However, insofar as the present question is
concerned, that case is distinguishable on its facts from the present case.
Southern Paper Box was remanded for hearing on specific factual allegations
of misconduct which were delineated by the court of appeals in its initial
decision 7473 F.2d 208. 211-212). In the present case. the court of appeals
remanded Objection I for hearing, together with the other objections, in tor.
evidence, raises serious questions as to the fact or time of
such alleged misconduct.
This brings me back to the matter of Carol Robinson's
authorization card. I credit Horner, essentially for the
reason that I credited him with respect to Charlotte Bailey,
i.e., that it is unlikely that Horner used the language
attributed to him. As Horner correctly tried to explain to
Robinson, union organizers ordinarily do not keep signed
authorization cards in their possession. It is evident that
Robinson unreasonably persisted in refusing to accept
Horner's explanation. The matter presents no objectionable
conduct.
Employee Joe Johnson testified that on election day,
Horner jostled him in a narrow, crowded corridor of the
plant, without apologizing. The matter is not only insignifi-
cant, but also irrelevant, as it allegedly took place after the
votes were counted.
Employee Patience Parish did not either actively support
or oppose the Union in the election campaign. She did not
give an investigatory affidavit. Parish testified that about 2
weeks before the election, union adherent Jason Williams
asked her to sign a union card, saying that it would be in her
best interest. Parish said that she would make that decision.
According to Parish, Williams then said that Parish had a
nice car, and he hoped it would stay that way. Williams
testified that he has known Parish all her life, and that about
6 weeks before the election, he asked her to sign a union
card, which she never returned, but that he never threatened
to damage her car. Williams testified that one day he saw
Parish, driving too fast, swerve off the road. He later told
her to be careful or she might get hurt or damage her car,
and she told him to mind his own business. As indicated, the
Union did not actively solicit signed authorization cards
once the election campaign was under way. Indeed, having
chosen the election route, it had no reason to do so; certainly
not to the point of trying to coerce such signatures.
Therefore, it is more likely that Williams asked Parish to
sign a card about 6 weeks before the election, and not 2
weeks before as testified by Parish. I credit Williams, and I
find that his conversation about Parish's car was unrelated
to his effort to persuade Parish to sign a union card.
Employee Bernice Franklin openly opposed the Union.
She did not give an investigatory affidavit. Franklin testified
that in a conversation at a social club, Williams asked her to
sign a union card and she refused, saying that he knew her
position. According to Franklin, Williams said: "Oh yeah, I
forgot. You are for the Union.? You are one of the toms of
the Company" (both are black). Williams testified that he
asked Franklin to help in the campaign, and that she said
that she was not for the Union, thereby ending the
conversation, He denied calling Franklin a "tom." I am not
persuaded that either version is more credible than the other.
referring to specific factual allegations in an illustrative rather than an all-
encompassing manner. In his decision, the Administrative Law Judge in
Southert Paper Box cited as authority. Manning. Maxwell & Moore. Inc. .
N.L.R.B., 324 F.2d 857, 858 (5th Cir. 1963). That case is not in point. as it
involved the threshold question of whether an employer was entitled to an
evidentiary hearing on its objections. Such questions must necessarily be
resolved on the basis of matters which are brought to the attention of the
Regional Director. In the present case, the court of appeals has already held
that the Company is entitled to a hearing on its objections.
:' Franklin used the word "Union" at this point. but may have meant
Company.
1376
BEAIRD-POULAN DIVISION
Assuming that Williams called Franklin a tom, i.e., a black
person who appeases whites, I find that the statement fell
within the area of permissible free speech, like the many
other epithets which were hurled during the campaign. See
Bancroft Manufacturing Company. Inc.. supra. 210 NLRB
at 1010.
Employee Beverly Washington was not a member of the
in-plant organizing committee, but she wore a union button
and shirt and had a union sticker on her car. Bernice
Franklin testified that she asked Washington if she told
employee Mary Windham that Washington could get hurt
by wearing an antiunion sticker. Washington said she did,
but was kidding. Franklin told Washington that she should
not kid about such matters, but should tell Windham that
she was only kidding. Neither Windham nor Washington
was presented as a witness in this proceeding. Therefore,
there is no direct evidence as to what Washington did or did
not say to Windham. I credit Franklin's uncontroverted
testimony concerning her conversation with Washington. I
shall reserve, pending consideration of all the allegations
under Objection 1, deciding whether Washington spoke as a
union agent and whether her statement constituted objec-
tionable conduct.
Employee Robert DeYoung did not openly either favor or
oppose the Union. He did not give an investigatory affidavit.
DeYoung testified that he had separate, but nearly identical
conversations with union adherents Jason Williams and
James Beck. Williams played a large role in the Union's
campaign, and his role will subsequently be discussed in
detail. Beck signed a union authorization card and wore a
union button and shirt, but he was not a member of the in-
plant organization committee. DeYoung testified that within
a week of the election, Williams told him that there would
definitely be a picket line if the Union got in. DeYoung
answered that he would have to cross a picket line. In
response to a leading question from company counsel,
DeYoung testified that Williams responded: "Well, if you
cross the picket line ... what if you find bullet holes in your
car?" DeYoung testified that he had another conversation
with Beck, at about the same time and place, which was
almost identical, word for word, with the conversation
which he had with Williams. Williams and Beck, in their
testimony each denied threatening DeYoung that his car
would be shot up if he crossed a picket line. Beck testified
that he never talked with DeYoung about a strike. Williams
testified that employees sometimes asked him about pickert
lines and strikes, but that he did not recall any specific
conversation about the subject with DeYoung. I find
DeYoung's testimony to be inherently implausible. There
have been many campaigns (and the present one was no
exception), in which an employer or antiunion employees
will argue that union representation may or will inevitably
result in strikes and picketing. However, it is highly unlikely
that a union, particularly one as sophisticated as the present
one, would make such an allegation. On the contrary, as
would be expected, the Union made diametrically opposite
arguments in its campaign literature. I credit Williams and
Beck. Moreover, even if they made the alleged statements,
the statements would not under Board law constitute
' It is evident from her testimony that Moore is the "Employee P" referred
to in the Regional Director's report.
objectionable conduct in an election campaign. See Hickory
Springs Manufacturing Company. 239 NLRB 103 (1978).
Bobby Brewer was not listed by the Union as a member of
the in-plant organizing committee, and she was not present-
ed as a witness at the hearing. Sandy Davis and Glen
Hibberts testified without contradiction that Brewer wore a
committee button. I find that Brewer either was a member of
the committee, or that the Union permitted her to represent
herself as a committee member. Brewer, Sandy Davis, and
Imogene Moore were present at one of the captive audience
meetings which was conducted by Glen Hibberts, about 3
weeks before the election. Davis and Hibberts testified, in
sum, that Brewer complained to Hibberts that only prounion
employees were given written warning notices for tardiness.
At this point Davis spoke up, asserting that the antiunion
employees were subjected to the Company's tardiness
program like anyone else. Brewer then shook her finger at
Davis, shouting that if he was so damned smart why did not
he get up there (with Hibberts) and "you better watch your
white ass or someone is going to get you good brother."
Hibberts then terminated the meeting. Moore testified that
shortly after the meeting, she saw Brewer in the ladies'
room, cleaning her fingernails with a pocket knife. Brewer
was visibly angry, and said that she did not "have to take
that goodamn bull shit off of nobody." Brewer did not point
the knife at anyone or threaten either Moore or the other
employee who was present in the bathroom." I find that the
bathroom incident did not constitute a threat. However, I
find that Brewer threatened Davis with reprisal, implying
violence, because he defended the Company. I reserve at this
point the questions of whether Brewer spoke as a union
agent, and whether her threat contributed to an atmosphere
of fear and violence which would warrant setting aside the
election.
Herbert Robinson, a member of the antiunion employees
committee, testified that at another captive audience meet-
ing, employee James (Red) Alford asked Hibberts how much
money the Company's president made. Hibberts said that he
did not have the information, whereupon Robinson asked
Alford what difference it made. Alford answered that he
would straighten Robinson out.2" Alford did not thereafter
discuss the matter with Robinson. Robinson testified that
within a week of the meeting, air was let out of his tires on
three occasions in the employee parking lot (one tire each
time). However, he testified that at that time the lot was
filled with potholes. Alford was not presented as a witness.
He was not listed as a member of the organizing committee,
although he sometimes wore a union button. His question
and statement are consistent with the attitude of an
employee who had not finally made up his mind, but who
resented interference with his attempt to obtain what he
considered to be important information. However, Alford's
statement was sufficiently ambiguous to be viewed as a
personal threat rather than simply an expression of annoy-
ance. I find that the evidence is insufficient to indicate that
Alford spoke for or on behalf of the Union. As Alford's
statement was uttered in a context similar to that of Bobby
Brewer's threat, and also in light of Robinson's testimony
1" It is evident from his testimony that Robinson is the "Employee F"
referred to in the Regional Director's report.
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about his car. I shall again discuss this matter in my
concluding findings under Objection 1.
Edwin Bachman was member of the in-plant organizing
committee, and wore a committee button. Bachman and
Estelle Nugent both worked on the third shift, and also
bowled on the same team. Nugent testified that one evening
at a bowling alley, Bachman asked her, as he had asked
before, to vote for the Union. She responded that she did not
think they needed a union. Bachman then said that there
might be complications, like the air let out of her tires, or her
tires slashed, or acid on her car. Bachman added that he was
not implying that it would happen to Nugent, but that
"there could be complications." Bachman and Nugent
continued to bowl on the same team, and Nugent's vehicle
was not damaged. Bachman was not presented as a witness.
Nugent, who did not give an investigatory affidavit, im-
pressed me as a candid witness. I credit Nugent, and I find
that Bachman, by his statements, inferred that employees
who opposed the Union could suffer damage to their
vehicles. The matter will be taken up again in connection
with other threats.
Larry Adger was a member of the Union organizing
committee, and he wore union buttons. Jack Reynolds
actively opposed the Union, and distributed antiunion
literature. Reynolds did not give an investigatory affidavit,
and Adger did not testify in this proceeding. Reynolds
testified that one day Adger asked him how his wife was
doing. Reynolds testified that Adger never asked about her
before, although they knew each other and talked to each
other. They did not discuss the Union or the campaign, and
Reynolds initiated the conversation by greeting Adger.
Reynolds did not query Adger as to why he asked about
Reynold's wife. There is no evidence that Adger was prone
to violence, or that Reynold's wife was threatened with or
suffered any harm, or that Reynolds had any objective basis
for believing that Adger was impliedly threatening harm to
his wife. If Reynolds interpreted Adger's innocuous inquiry
as a threat, then his reaction was wholly subjective, and
cannot be used as basis for setting aside the election. I find
that Adger did not expressly or impliedly threaten harm to
Reynold's wife.2 '
Employee Robert Chrysler favored the Union, and wore a
union button, but he was not identified as a member of the
organizing committee. Employee Ronald Hinson did not
give an investigatory affidavit. Hinson testified that he and
Chrysler were neighbors, and that one Saturday afternoon
they went out for a ride in Chrysler's car. They drank beer
before getting into the car, continued to drink while driving,
and were on their way to get more beer. Chrysler was also
demonstrating a new transmission which he had installed in
his old car. According to Hinson, they talked about the
election. Chrysler knew that Hinson was opposed to the
Union. Hinson testified that if they were out on a picket line,
"you could get hurt." Hinson answered that he would have
to go to work. Hinson testified that at this point Chrysler
jammed the car into second gear, causing the car to spin
around and roll into a ditch. Fortunately neither was hurt,
although the car was damaged. Hinson testified, "I really
' Reynolds testified that he stopped distributing antiunion literature
because of Adger's inquiry, and because of the alleged gun incident involving
Ronald Ellison. As Ellison never had a gun, and Adger did not threaten
enjoyed that ride." Chrysler was not presented as a witness.
It is evident that both employees were letting their beer do
their talking for them. The two employees were out for a joy
ride, engaging in mindless talk, and no threat or act of
prounion intimidation was involved, unless drunken driving
be considered a form of union activity.
7. Additional alleged threats or acts of intimidation by
unidentified persons
Patience Parish testified that about 2 weeks before the
election, employee Solee Simpson pointed out another
employee as a person who had allegedly told Simpson that it
was in her best interest to support the Union and to sign a
union card, and that if she did not, something could happen
to her, like she could be beat up or something could happen
to her kids. Simpson died in September 1977. 1 permitted
Parish's testimony in evidence, subject to my further
consideration as to the applicability of rule 804 of the
Federal Rules of Evidence. I find, in all the circumstances
that Parish's testimony constitutes unreliable hearsay, and
therefore, that the exception to the hearsay rule provided in
rule 804(b)(6) is inapplicable. Neither Parish nor Simpson
furnished an investigatory affidavit. Parish testified that
Simpson spoke to Glenn Hibberts, apparently about the
matter, that same afternoon, but Hibberts in his testimony
never claimed to have forwarded Simpson's name to the
Company's attorneys or to the Board's Regional Director.
The inference is warranted that if Simpson reported a threat,
he would have done so. Parish gave a physical description of
the alleged "organizer" which could be applicable to
Cameron Mitchell. However, Mitchell worked as a drill tap
operator, whereas Parish testified that the individual in
question worked in the warehouse. The Company made no
effort to present Mitchell or any other person to Parish for
identification purposes, although Simpson presumably
would have given some identification to Hibberts if she had
reported the alleged matter. In sum, I find that Parish's
testimony lacks the "circumstantial guarantees of trust-
worthiness" contemplated by rule 804. Therefore, I have
attached no evidentiary weight to her hearsay testimony
concerning the unidentified individual.
Employee Jasper Tyler was outspokenly opposed to the
Union. His wife Germaine was a housewife. Neither gave an
investigatory affidavit to the Board, nor did they give any
statement to the Company until April 1978, although Jasper
Tyler allegedly told his foreman about the incident. He
testified that his wife received a telephone call at home,
about a week before the election, which upset her considera-
bly. Germaine Tyler testified that an unidentified black man
called her while her husband was at work and made an
obscene proposal, adding that her husband would pay if he
did not join the Union. Both Tylers testified that Mrs. Tyler
received medical treatment as a result of a nervous condition
allegedly caused by the call. However, Jasper Tyler testified
that his wife first saw a doctor about 6 months after the
election. The Company did not present any corroborative
medical evidence, either in the form of testimony by her
Reynolds, Reynolds' decision in this regard is, even apart from other
considerations, irrelevant to this proceeding.
1378
BEAIRD-POULAN DIVISION
physician, or of medical records. Mrs. Tyler may have
received an obscene call. However, in light of the date of
treatment, and the absence of any report of the alleged
incident until 2 years after the election, I find that the call
was received long after the election, and I do not credit
Germaine Tyler's testimony that the caller referred to the
Union.
The Company presented testimony by other witnesses in a
similar vein. Dana Reagan was opposed to the Union, and
wore a mildly obscene antiunion button. She did not give an
investigatory affidavit. Reagan testified that prounion em-
ployees, mostly black men, kept asking if she was married,
had children, when her husband worked, and whether she
was afraid to stay at home alone. As her testimony
progressed, Reagan became increasingly certain that only
black men, and always black men, kept asking her these
questions, but she became less certain that they were union
adherents. Reagan testified that she could not remember if
they wore union buttons or shirts, and she did not indicate
that they said anything about the Union. Reagan confessed
that she was unable to identify any of the employees by
name, although some allegedly still worked at the plant. I
find that her demonstrably unreliable testimony reflected an
obsession with race rather than anything to do with the
election campaign. Therefore, I attach no evidentiary signifi-
cance to her testimony about anonymous telephone calls and
a flat tire. (Reagan admitted that she has received anony-
mous phone calls and had flat tires at times other than
during the election campaign). Employee Janie Hancock
testified that a few days before the election, a car with four
black men followed her from work and ran her off the road.
In view of Hancock's testimony that she did not make her
antiunion views known until election day, the alleged
incident is irrelevant to this proceeding. Employee Sandra
Heable wore an antiunion button similar to that worn by
Reagan. She did not give an investigatory affidavit. Heable,
like Reagan, testified about anonymous phone calls and flat
tires, and also about unidentified black men who made
comments about her living alone. Like Reagan, she was
uncertain whether they were union adherents, and she did
not indicate that they said anything about the Union or the
election. I find that her testimony, like that of Reagan, is
immaterial to the issues in this proceeding.
Additional testimony by Bobby Clark casts further doubt
on the kind of evidence of alleged anonymous threats and
harassment which was presented by the Company in this
proceeding. Clark testified that several weeks before the
election, he passed a group of employees wearing union
buttons, and one asked him how he would like not to return
home one evening. In an affidavit to the Company, Clark
referred to such a statement. However, in his investigatory
affidavit to the Board, Clark said that one of the employees
asked him how he would like to make SS5 per hour doing
what he was doing now. The affidavit said nothing concern-
ing a threat about not returning home. Clark testified that he
sought an escort to the bathroom, not because of threats, but
because people kept asking him to sign union cards. As
heretofore indicated, Clark demonstrated a tendency to
embellish the truth. I find his affidavit to the Board to be a
!' On rebuttal, the Company presented testimony by a witness who alleged
that he saw Kline squirt glue on parts. I struck the testimony as not being
more accurate reflection of the truth than his subsequent
testimony in this proceeding, and I do not credit his
testimony concerning the alleged threat.
8. Alleged acts of vandalism in and out of the plant
The Company presented testimony by Tommy Gay and
Herman Wilson concerning alleged acts of vandalism in the
plant. Gay was and is the plant maintenance superintendent,
and Wilson was and is a maintenance lead man. Gay did not
give an investigatory affidavit. Wilson, who was a company
observer in the election, gave an affidavit, but it did not deal
with alleged vandalism. In fact, the Company presented no
evidence concerning acts of alleged vandalism in the plant in
connection with the Regional Director's investigation of the
objections to the election. As will be discussed, this failure
takes on particular significance in light of evidence which
was presented in connection with Gay's testimony. By
reason of his position and area of responsibility, Gay's
knowledge concerning such matters was the Company's
knowledge. If the Company learned of acts of vandalism
during the election campaign, it is probable that the
Company would have presented evidence of such acts,
including Gay's statement, during the investigation. How-
ever, the Company conspicuously failed to do so.
Superintendent Gay testified that among other acts of
apparent vandalism, six restroom faucets were twisted so
that they would not stop running and had to be replaced.
The Company presented, as corroborative evidence, a bill in
the amount of 186.57 for replacement of the faucets. The
bill contained a handwritten entry "4-27-76" inserted at the
top. The entry was written in a different handwriting than
other entries on the bill, and was obviously inserted over
another entry, in the space marked date, which other entry
was partially scratched out, erased, and illegible. Gay
testified that he did not know who entered the date of April
27. The bill was stamped as "received" on May 5, and
"paid" on May 20, 1976. Therefore, it is evident that the
faucets were not replaced before May 5, although the
Company repainted and cleaned its restrooms shortly before
the election. The Company also presented in evidence a
purported list of damaged turret lathe parts which had to be
replaced. However the list, allegedly prepared by Gay on the
day he found the damage, was undated. Gay himself was
extremely vague about the dates of the alleged acts of
vandalism. He variously testified that such damage occurred
in February or March; in February, March, or April; and
about March 1. No person was identified, either directly or
circumstantially, as having caused any of the alleged
damage. Herman Wilson testified that Albert Kline, among
some 40 other employees, worked in a warehouse area when
a box of screws turned up missing, and where (in response to
leading questions from company counsel), glue was squeezed
onto parts, and other persons (not Wilson) found razor
blades among the parts. Kline, in his testimony, categorical-
ly denied that he ever took or discarded usable parts or
placed glue on parts.'"
I find that the alleged acts of vandalism, to the extent that
they took place at all, occurred after the election, and
proper rebuttal testimony. See, 6 Wigmore, Evidence, Sec. 1873 (Chadbourn
(Continued)
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore are irrelevant to this proceeding. 1 further find that
it cannot be presumed that such acts were committed by or
on behalf of the Union, or by any identifiable person.
Vandalism, like other forms of lawlessness, is not always
logical or rational. Nevertheless, it is difficult to see how
union adherents could reasonably hope to favorably affect
the outcome of the election by committing acts of vandalism
against company property. It is possible that union sympa-
thizers might engage in such acts out of resentment against
the Company's refusal to accept the result of the election, or
the discharge, however lawful, of certain union adherents
shortly after the election. However, even this inference can
essentially be based on nothing more than surmise and
suspicion. The evidence presented by the Company falls
considerably short of the standard followed by the Eighth
Circuit Court of Appeals for proof of facts by circumstantial
evidence. See, N.L.R.B. v. Century Broadcasting Corpora-
tion. 419 F.2d 771, 779 (8th Cir. 1969).
In addition to testimony heretofore discussed, the Compa-
ny presented additional testimony concerning damage to
employee vehicles by unidentified persons. Herman Wilson,
who was opposed to the Union, testified that shortly before
the election he found broken beer bottles in his driveway, air
was let out of his tires, and a car drove into his yard and
made cuts in the ground. Wilson testified that no union
adherent ever threatened him. Another antiunion employee,
John (Buddy) Daniels, testified that he found a small dent in
his car, which occurred while it was parked in the employee
parking lot, and which apparently could not have been
caused by another vehicle. Daniels did not indicate that
anyone ever threatened him. In response to a leading
question, Daniels testified that the incident occurred in April
1976. Antiunion employee Walter (Jeff) Shadoin testified
that Albert Kline kept asking him to sign a union card,
without threatening him, and that subsequently his car
developed a small dent. Shadoin testified that he did not
know where the dent occurred or who did it. Kline testified
that he and Shadoin were good friends, and that he never
threatened to damage Shadoin's car. None of the antiunion
employees gave any contemporaneous report to the police,
their insurer, the Company or any other authority, or gave
any investigatory affidavit concerning these matters. I shall
deal with these matters in my concluding findings under
Objection 1.
9. Concluding findings with respect to Objection 1
In sum, I have found that the Company failed to prove
that the Union or union adherents engaged in any acts of
violence against persons or property for the actual or
ostensible purpose of encouraging support for the Union or
inhibiting opposition against it. With respect to the alleged
minor, anonymous acts of vandalism involving tire or auto
body damage, on which I have reserved decision, union
responsibility can be established only if the same can be
inferred from the threats heretofore found.
To recapitulate, I have found five instances in which
union adherents or uncommitted individuals made state-
rev. 1976). As indicated, the Company was on notice that this proceeding was
being litigated under the procedure and rules generally applicable to an unfair
labor practice case.
ments which either constituted or could reasonably be
interpreted as threats for the purpose of inhibiting union
opposition or encouraging union support. The first instance
was Anether Hall's threat to Willie Daniel that the Union
would take him to court because he quit going to union
meetings. As indicated, Hall was a member of the in-plant
organizing committee. I find that in making this threat, Hall
was not acting as an agent of the Union and was not
speaking for the Union or on its behalf. The Board has
repeatedly held that employee members of an in-plant
organizing committee are not, by virtue of such membership,
agents of their union for the purpose of making threats or
statements, even when purportedly made in the union's
name or on its behalf. See Firestone Steel Products Company,
235 NLRB 548 (1978); Tennessee Plastics, Inc., 215 NLRB
315, 319 (1974), enfd. 525 F.2d 670 (6th Cir. 1975);
Georgetown Dress Corporation, 214 NLRB 707-708 (1974),
enforcement denied 537 F.2d 1239 (4th Cir. 1976); Mike
Yurosek & Sons, 225 NLRB 148, 149-150 (1976)29 With the
exception of Jason Williams, the evidence in the present case
does not warrant an inference that the committee members
or any other union adherents enjoyed such special relation-
ships as to constitute them agents of the union. The
committee was a relatively large and amorphous group.
Even Willie Daniel remained as a nominal member of the
committee after his defection. No committee member
conducted meetings, gave speeches, or composed literature.
The Union categorically denied that they had authority to
speak on its behalf, and with the exception of Williams, the
evidence does not indicate otherwise. Two union agents,
although not involved in the campaign on a full-time basis,
were frequently present at the plant to distribute literature,
and Carlton Horner conducted all meetings. The evidence
fails to indicate that Horner or his assistant Roy Hernandez
engaged in any misconduct or encouraged or approved
misconduct by any union adherent. As for the committee
members, the extent of their activities, like those of other
union adherents, varied widely. Some distributed union
literature, while others, like Anether Hall, did not. None
were paid or, except for Williams, were reimbursed for their
services. Committee members acted on behalf of the Union
by distributing union campaign literature. The Union might
be accountable for statements made by authorization card
solicitors during such solicitation, insofar as the validity of
particular cards is concerned; however, such matters are not
involved in the present case. The committee members, like
other union adherents, did not lose their right to express
their own views simply because they chose to assist the
Union in its election campaign.
Alone among the union adherents, Jason Williams en-
joyed a position in which employees looked to him as a
spokesman for the Union when he purported to speak on its
behalf. Williams was the principal activist in a previous
campaign, as a result of which activity he was discriminato-
rily terminated and subsequently reinstated (unreported
Decision of Judge Jennie M. Sarrica in Case 15-CA-5432,
1974). Williams continuing "preeminence in Union organi-
zational activity" resulted in further discriminatory treat-
2' In its decision remanding the present case, the court of appeals did not
express any opinion with respect to the question of agency.
1380
BEAIRD-POULAN DIVISION
ment toward him in the instant campaign. Beaird-Poulan
Division, Emerson Electric Company, 233 NLRB 736, 744-
745 (1977). Williams helped to initiate the campaign. He was
in contact with Union vice-president, Lynn Bonner even
before Carlton Horner arrived to begin the campaign.
Williams was considerably more active than any other
employee, and as indicated was reimbursed for some of his
expenses. By his own testimony, he obtained some 50 signed
authorization cards, and engaged in hundreds of conversa-
tions about the campaign. Employees, including union
adherents, looked to him as a person with inside information
and some responsibility in conducting the Union's cam-
paign. Thus, Cameron Mitchell reported the incident involv-
ing him and Steve Davis to Williams, so that "someone with
the authority found out about the incident." When Williams
purported to speak on behalf of the Union, he knew what he
was talking about. Thus, at a captive audience meeting at
which Glen Hibberts spoke about Huck Manufacturing
Company, Williams stood up and told the assembled
employees that if any of them wanted to see the Huck
contract, it was available for inspection at the union hall. In
fact, Carlton Horner had in his possession what he under-
stood to be a copy of the Huck agreement. This matter will
be taken up again under Objection 3. In the same context,
Williams made another significant statement. Employee
Solee Simpson posed a question as to whether the Company
would provide protection for her car if there were a strike.
Williams stood up and asserted that "we are not going to
hurt your car," and then went on to talk about the Huck
agreement. As heretofore found, Williams did not engage in
any misconduct during the campaign. All this does not mean
that Williams lost his right to express his own views as an
individual employee, or that he did not do so on occasions.
However, when Williams purported to speak on behalf of the
Union, he was looked upon by the employees as a person
who spoke with inside information and some degree of
authority. Therefore, Williams can fairly be considered as a
union agent in making such statements.
As none of the employees who made actual or arguable
threats were union agents, the Company has failed to prove
that the Union engaged in any misconduct under Objection
I. In view of Williams' express repudiation of violence, the
absence of credible evidence that any union agent threatened
damage to vehicles or other violence, the absence of direct
evidence of responsibility for acts of vandalism, and the
absence of even substantial circumstantial evidence which
would indicate a pattern of harrassment attributable to the
Union or its adherents, I further find that the Company has
failed to prove that the alleged acts of vandalism involving
automobile damage, assuming they occurred, were commit-
ted by the Union or union adherents for the purpose of
encouraging support for the Union or discouraging antiun-
ion activity. With reference to Anether Hall's threat, she
purported to inform Willie Daniel as to what the Union
would do. However, Hall had neither actual nor apparent
authority to make such a statement. Daniel, despite his
defection, never formally resigned from the in-plant orga-
nizing committee. As a nominal member of the committee,
Daniel had as much standing in the campaign hierarchy as
Hall. If Daniel were really concerned about the matter he
could have easily checked with an authoritative source,
namely Carlton Horner. However, although Hall spoke to
Daniel early in the campaign, Daniel did not do so, and no
lawsuit was instituted or authoritatively threatened, al-
though Daniel never resumed his attendance at union
meetings.
There remains the question of whether the threats
heretofore found, whether viewed individually or collective-
ly, contributed to an atmosphere of fear and violence such as
to interfere with employee free choice in the election, and
therefore warrant setting aside the election. First, I find that
the matter involving Hall and Daniel cannot be validly
considered in this regard. Hall threatened only peaceful
action, through courts of law, which unlike violent action
could be undertaken only by the Union and not by
individuals. As Hall had neither actual nor apparent
authority to speak in this regard, the matter is without
evidentiary significance.
The conversation between Bernice Franklin and Beverly
Washington and the conversation between Estelle Nugent
and Edwin Bachman involved at best equivocal threats, and
the former came close to being a matter of hearsay. Mary
Windham, the employee to whom the threat was assertedly
addressed, was not presented as a witness. There is no direct
evidence as to what Washington and Windham said to each
other, in particular, whether Washington indicated that she
was joking, although Washington indicated to Franklin that
she was kidding, and did not disagree with Franklin's
suggestion that she should so make clear to Windham. In
both the Franklin-Washington and Nugent-Bachman con-
versations the union adherents indicated that they were not
threatening, or did not seriously threaten anyone; and in
both conversations, the responses of the anti-union adher-
ents indicated that they so understood. Compare, Bona
Allen, Inc., 190 NLRB 216 (1971).
The actual or ostensible threats by Bobby Brewer and
James Alford cannot be divorced from the context in which
they were made. Each incident occurred during the course of
a captive audience meeting; i.e. a one-sided presentation of
the Company's position which all employees, regardless of
their views, were summoned to attend. In each instance, the
employee's attempt to obtain information from the company
spokesman was frustrated by an antiunion employee who
insisted on speaking for the Company. One of the questions
was asked by an employee who may have been undecided,
and wanted to obtain information which he considered to be
pertinent. In these circumstances, it is understandable that
the questioner might lose his or her temper and make an
outburst which might later be regretted. An employer has
the legal right to conduct captive audience meetings, but
employee tempers can be expected to boil over when the one-
sided nature of these sessions becomes apparent. Here, the
Company created the conditions under which the spontane-
ous outbursts took place, and it would be as logical to hold
the Company responsible as it would be to hold the Union
responsible for what was said by individual employees at
these meetings.
I find that the five actual or ostensible threats, even when
viewed collectively did not constitute conduct attributable to
union adherents which created or contributed to an atmo-
sphere of fear and violence such as to interfere with
employee free choice in the election. The Company has
1381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed to prove by credible evidence that any union adherent
engaged in an act of violence against persons or property for
a purpose of inhibiting opposition to the Union or encourag-
ing support for the Union. Out of the mass of evidence
presented by the Company, I have found only five state-
ments which either constituted or were arguably threats
related to such purpose. One involved peaceful court action,
two were not intended to be taken seriously, and two were
spontaneous remarks at captive audience meetings, which
were more akin to the verbal abuse which was commonly
used by union adherents, opponents, and uncommitted
employees in the campaign, than to calculated threats.
Together, they fall far short of demonstrating a pattern of
intimidation directed at antiunion employees or even at a
single antiunion employee. Therefore, I am recommending
that Objection I be overruled. Compare, Tennessee Plastics,
supra. 215 NLRB at 319; Firestone Steel Products Company,
241 NLRB 382 (1979).
D. Objection 2: Alleged Misrepresentations Concerning
Executive Income and Benefits
The Company failed to present a prima facie case in
support of its Objection 2. At the close of the hearing, I
found the objection to be without merit and recommended
that it be overruled, indicating my reasons. I adhere to that
ruling. See also my discussion, supra, concerning the nature
of this proceeding.
E. Objection 3: Alleged Misrepresentations Concerning
Huck Manufacturing Company
Prior to the election, the Union distributed a four-page
flier to the Company's employees. The Company does not
contend that the first three pages were improper. The fourth
page dealt with "The Huck Story." and purported to be a
response to statements by Personnel Director Hibberts
concerning the situation at Huck Manufacturing Company,
of Waco, Texas (herein Huck). A copy of the fourth page, as
annotated by Hibberts and (after enlargement) posted on
plant bulletin boards prior to the election, is attached as an
exhibit to this Decision. (The union flier was presented in
evidence as Resp. Exh. 18, and the annotated copy of the
fourth page was presented as Resp. Exh. 19). In part, the
Union's handbill stated as follows with respect to Huck:
The UAW and Huck entered negotiations for a contract
at Waco, Texas. Negotiations have now been completed
and a contract agreed upon by the UAW and Huck and
accepted by the members.
The UA W-Huck contract provides:
I) Fully paid Hospitalization Insurance for the
employee and their dependents.
2) Fully paid sick and accident insurance that pays
the employee 50% of his base rate up to fifty-two (52)
weeks, Example-An assembler at Huck, under the
UAW-Huck contract earns $4.47 per hour-or $178.80
for a 40 hour week. If sick and disabled, this assembler
"' General Counsel and the Union. as parties to the Huck proceeding. were
bound by the Administrative Law Judge's Decision. The Company, although
will draw sick benefits of $89.40 a week for an illness up
to 52 weeks.
3) Wage rates up to $5. 73 per hour,
4) A $9,000 company paid life insurance policy,
The Company contends that the handbill was false and
misleading in four respects, because: (I) The Union and
Huck never agreed upon a contract: (2) Huck, unlike the
Company, did not employ assemblers, although it had
employees in the category of "hand sort and assembly," who
performed work comparable to the Company's assemblers,
and who were paid from $3.38 to $3.80 per hour; (3) The
Huck employees who received from $3.68 to $4.47 per hour
were in fact assembly-band-annealer set-up employees,
basically machine operators, whose work was not compara-
ble to that of the Company's assemblers who comprised
nearly one-third of its work force, and were paid from $3.30
to $3.80 per hour; and (4) In April 1976 the Huck unit
employees each had a $6,000 life insurance policy, compared
to death benefits for company employees which were 2 1/2
times annual earnings. The Company further contends that
the misrepresentations were material to the election cam-
paign and were made at a time which did not afford the
Company an adequate opportunity to make an effective
reply.
The negotiations between the Union and Huck were the
subject of an unfair labor practice proceeding which was
heard before Administrative Law Judge Joel Harmatz on
August 16 and 17, 1976, resulting in a Decision issued by
Judge Harmatz, in sum dismissing the complaint against
Huck. Exceptions were filed, but subsequently withdrawn,
and the Board proforma adopted the Judge's Decision and
Order dismissing the complaint. Following a Board conduct-
ed election on May 27, 1977, the Union was decertified as
the representative of Huck's employees. At the hearing in
the present case, the parties indicated that they wished to
present evidence concerning the Huck negotiations. I ruled
that Judge Harmatz' Decision was res judicata as to the
matters decided therein, and that I would not receive any
evidence which duplicated or contradicted his findings."'
The parties indicated their view that certain portions of the
record in Huck involved matters which were not spelled out
in the Judge's Decision, but were pertinent to the present
case. However, the parties were unable to agree on the
relevant portions of the record. I received the Huck record
in evidence, with the proviso that I anticipated that in their
briefs the parties would pinpoint which portions of the
record they wished me to consider. General Counsel has
requested me to take notice of General Counsel Exh. 10 in
Huck. At the hearing, the Union requested me to take notice
of General Counsel Exhs. 2 through 12, and in its brief has
made specific references to some of those exhibits. At the
hearing, the Company requested that I receive the entire
Huck record in evidence. However in its brief the Company
failed either to explain this request or to be more specific.
The balance of the Huck record is either irrelevant or
adequately described in the Administrative Law Judge's
Decision, for the purposes of this case. Therefore, the facts
hereinafter stated are derived from Administrative Law
Judge Harmatz' Decision, the pertinent portions of the Huck
not a party to the Huck case, agreed to be bound by that decision for the
purposes of the present case.
1382
BEAIRD-POULAN DIVISION
record, or the evidence presented in the present hearing
concerning matters which were not the subject of the Huck
Decision.
Following a Board conducted election on May 6, 1975,
the Union was certified as the collective-bargaining represen-
tative of Huck's production and maintenance employees at
its Waco plant. Contract negotiations began on August II,
1975. International representative Carl Tillery was the
Union's chief negotiator. Negotiations continued until No-
vember 12, 1975, at which time Huck presented a "final
offer" to the Union (G.C. Exh. 3). Huck's proposed contract
included a life insurance provision (art. 28, p. 37), which
provided that the Company agreed to continue to provide
life insurance benefit of $6,000, with an additional $6,000
accidental death and dismemberment benefit, but that
effective January 1, 1976, the coverage would be increased to
$9,000, all at no cost to the employee. The notation "OK"
appears in the margin opposite the proposed article 28. At a
meeting on November 15, 1975, the Union's membership
rejected the proposed contract. Thereafter the parties had
only one formal negotiating session, which took place on
February 18, 1976. Although certain changes were made in
Huck's proposal, no agreement was reached. However, on
April 3, following another meeting of employees, the Union
sent a mailgram to Huck, notifying Huck that the Union
accepted Huck's proposal of February 18. On Monday,
April 26, 4 days before the election at Beaird-Poulan, Huck
forwarded the text to its last offer, as revised, to Internation-
al representative Tillery. The proposal contained a life
insurance clause similar to that in Huck's November 12
proposal, except that coverage was to be increased on May I
instead of January 1, 1976. In the meantime, at least through
April 1976, Huck continued to provide a $6,000 life
insurance policy for each unit employee.
The Union received the text of Huck's proposed contract
on April 29, but Tillery did not read the text until May 2 or
3. As matters turned out, the substantive provisions present-
ed no problem. However, the negotiations ultimately found-
ered on the effective date of the contract. The Huck text
provided for a I-year contract, effective retroactively from
November 17, 1975, to November 17, 1976. On May 6, the
anniversary date of the certification year, Tillery signed the
proposed contract, but not before altering the duration
clause to recite that the contract would be effective from
April 26, 1976, to April 26, 1977.3' On May 7, a decertifica-
tion petition was filed in the bargaining unit. On May 12,
Tillery forwarded the signed text as revised to Huck, with a
covering letter which referred to the change in duration
dates as a correction of "a typographical error." By letter of
May 17, Huck informed the Union that "your counter-
proposal is not acceptable" and that "a question concerning
representation now exists which prevents us from continuing
contract negotiations." By letter of May 19, the Union
responded, asserting that the parties agreed to a one-year
contract which was effective as of April 26, 1976. There
were no further communications between the parties, and on
June I the Union filed an unfair labor practice charge. On
July 19 the Board's Regional Director issued an unfair labor
practice complaint, alleging that Huck violated Section
' G.C. Exh. 10 in the Huck record is the contract as signed by the Union.
G.C. Exh. II is the pages respecting duration which were ent by Huck but
replaced by Tillery.
8(a)(5) and (1) of the Act by refusing to sign an agreed upon
contract and by withdrawing recognition from the Union.
Essentially, the question presented at the hearing was
whether there was a meeting of the minds as to the effective
dates of the contract. The Administrative Law Judge found
that there was not, and that therefore the Company was
justified in breaking off contract negotiations after a decerti-
fication petition was filed. Dismissal of the complaint paved
the way for the decertification election, which the Union
lost.
Carlton Horner testified that he prepared "The Huck
Story" on the basis of information received from Carl
Tillery, and that he (Horner) also had a working copy of a
Huck contract which he received from Tillery. Horner, in
his testimony, was unable to identify such copy, although
the Union proffered in evidence a document which was
similar to General Counsel Exhibit 3 in the Huck case, i.e.
the Huck offer which was rejected by the Union in
November 1975. It is evident that Homer did not have a
copy of the Company's draft based on its February 18
proposal, as even Carl Tillery did not have that document
until at least April 29. The inference is warranted that
Tillery supplied Horner with a draft of a proposed contract
which had been rejected by the Union. Whether or not
Horner was aware of this fact, the Union must bear the
responsibility for any consequent misrepresentation, as
Tillery, like Horner, was an agent of the Union.
The Union's handbill was prepared and distributed to the
Company's employees during the week of April 26, i.e. the
last week of the campaign. The precise dates and times of
distribution are in dispute, and that question will be
discussed, infra. I find that the disputed statements were
either literally true, or believed to be true by the parties
involved, although each statement was arguably misleading
and subject to misinterpretation. The handbill did not state
either that Huck and the Union had signed a contract or that
a contract was currently in effect at Huck. Rather, the
handbill simply asserted that negotiations were completed,
and a contract agreed upon by the Union and Huck and
accepted by the members. In late April both the Union and
Huck either believed this to be true, or had no objective basis
for believing otherwise. Not until May 2 or 3, when Tillery
read the proposed contract, did he have any factual basis for
inferring that there was not a complete meeting of the
minds. The handbill did not state that Huck employees had
a $9,000 life insurance policy. Rather, the handbill stated
that the contract provided for a $9,000 policy. The handbill
was correct, as the anticipated contract provided that the
amount of life insurance would be increased to $9,000 as of
May , 1976. As for the reference to "an assembler at Huck"
the Huck list of job classifications and rate structure
contained a reference to two jobs which included the term
"assembly." They were "Assembly-Band Annealer Set-up"
and "Hand Sort and Assembly." Under the Huck proposed
contract, and in fact during the spring of 1976, the assembly-
band annealer setup employees had a starting wage of $3.68
per hour, and normally progressed over a 6-month period to
a maximum wage of $4.47 per hour. I agree with the
Company that the Union, and specifically Carlton Horner,
1383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had no objective basis for comparing the functions of those
employees with those of the Company's assemblers. The
Huck employees in question were not in fact assemblers.
Rather, they were machine operators who were responsible
for operating a band annealing machine, specifically, a
machine which softens metal or other material by heating, in
order to obtain the proper function. Their functions fall
within the occupational terms of induction machine operator
and induction machine setup man, rather than that of
assembler. See Dictionary of Occupational Titles. U.S. Dept.
of Labor (4th ed., 1977). The work performed by the Huck
employees was of a semiskilled or skilled nature, involving
several months of on-the-job training, the use of instruments,
and the setting up and adjustment of the machines. In
contrast, the Company's assemblers performed unskilled
manual work of a routine and repetitive nature, involving
minimal or no training. I attach no evidentiary weight to
Horner's assertion, in his testimony, that the term "assem-
bly-band annealer" falls within the job classification of an
assembler. Horner had no personal knowledge of the
operations of Huck, the work of band annealing, or of the
metal fastener industry, and his assertion in this regard was
unsupported by any statement of reasons. However, in view
of the key word "assembly" which is the first word of the
classification of the employees in question, Horner could
reasonably construe their shorthand job title to be that of
"assembler," even though that term did not accurately
define their functions. Moreover, the union handbill did not
literally purport to compare the functions of the "assembler
at Huck" with that of the Company's assemblers. On its
face, the handbill simply purported to use the "assembler" as
a basis for illustrating the extent of sick benefits at Huck.
This does not mean that a reasonable reader could not infer
from this "example" that true assemblers at Huck earned
much more, under a union contract, than did their counter-
parts at Beaird-Poulan. Nor does it mean that a sophisticat-
ed and experienced organizer such as Horner was not aware
that the handbill was susceptible of such an interpretation.
All parties agree, and I so conclude, that Objection 3 is
governed by the standards of Hollywood Ceramics Company,
supra, 140 NLRB at 224, which were in effect at the time of
the instant election, and which, after a brief interlude
following Shopping Kart of California, Inc., supra, were
reinstated in General Knit of California, Inc., 239 NLRB 619
(1978). See, Rex-Hide, Incorporated, 241 NLRB 1178
(1979). Those standards as stated in Hollywood Ceramics are
as follows:
[A]n election should be set aside only where there has
been a misrepresentation or other similar campaign
trickery, which involves a substantial departure from
the truth, at a time which prevents the other party or
parties from making an effective reply, so that the
misrepresentation, whether deliberate or not, may
reasonably be expected to have a significant impact on
the election. However, the mere fact that a message is
inartistically or vaguely worded and subject to different
interpretations will not suffice to establish such misre-
'' The Company has not cited any pertinent case authority. The court of
appeals referred to Hollywood Ceramics. However. that case. although stating
the applicable standard, did not involve a factual situation similar to that in
the present case.
presentation as would lead [the Board] to set the
election aside.
Upon consideration of the case authorities under the
Hollywood Ceramics standards, I find that the statements in
question did not constitute misrepresentation, at least of a
kind which would warrant setting aside an election. See,
Southern Health Corp. d/b/a Corydon Nursing Home, 201
NLRB 462, 465 (1973), and the decision reported at 514
F.2d 1121, 1125 (7th Cir. 1975) enforcing the Board's
bargaining order in the same case; Follett Corporation, 160
NLRB 506, 508-509 (1966), and the decision reported at
397 F.2d 91, 95 (7th Cir. 1968), enfg. the Board's bargaining
order in the same case; Russell-Newman Manufacturing Co.,
Inc., 158 NLRB 1260, 1263-64 (1966); Miller's Pre-Pared
Potato Company, Inc., 240 NLRB 1302 (1979)."2 Southern
Health is particularly pertinent to the matter of the Huck
"contract." In Southern Health, a union, shortly before an
election, distributed a comparison sheet purporting to show
wage rates paid to employees represented by that union at
two firms located in the same community as Southern
Health. In fact, although one contract was fully implement-
ed, the other apparently exceeded wage stabilization guide-
lines and was being renegotiated in order to conform.
Therefore, the employees at the second location were not
actually receiving the purported wage scale, which substan-
tially exceeded that paid to the Southern Health employees.
The Board, interpreting the comparison sheet as no more
than a representation of negotiated benefits (although the
comparison sheet did not so indicate), found no material
misrepresentation. The court of appeals, in affirming the
Board, stated as follows with respect to the handbill:
It surely can be read as a representation that the other
employers were then paying and their employees
receiving the benefits set forth. As to one of the
employers, then, it failed to disclose a fact necessary to
make the other facts not misleading, and was a
misrepresentation to that limited extent. Nevertheless
we find no abuse of discretion in deciding that it was
not "an objectionable misrepresentation within the
Hollywood Ceramics rule."
In the present case, the Union did nothing more than did the
union in Southern Health. The Union simply stated what
both the Union and Huck understood to be true at the time,
namely, that the Union and Huck had negotiated and agreed
upon a contract, and that the contract provided for a $9,000
life insurance policy. Follett and Russell-Newman are also in
point with regard to the contract and the amount of life
insurance." In each of those cases, the union involved
purported to describe wage rates at organized firms, al-
though the rates were not to take effect until a future time.
In each case, the Board found no misrepresentation. In
Russell-Newman, the Board stated: "At the outset, we note
that the leaflet did not state that the full raises were
immediately effective. Rather the leaflet stated only that the
contract 'provides for' those increases, and this is literally
true." The same description would also be applicable to the
reference to insurance benefits in the present case. The
' See also, Wagner Electric Corporation. 227 NLRB 1748 (1977), 586 F.2d
1074, 1077 (5th Cir. 1978).
1384
BEAIRD-POULAN DIVISION
Board's recent decision in Miller's Pre-Pared Potato is
pertinent to the reference to the "assembler" wage rate at
Huck. In Miller's, the involved union distributed a letter to
Spanish-speaking employees, stating: "The Union will nego-
tiate for better pay and benefits. The members of this Union
get salaries between $3.90 and $200 per hour." The
employees at Miller were mainly unskilled laborers. The
letter did not indicate that the members in the upper ranges
of that span were entertainers, whose work was not
comparable to the Miller employees. The letter also failed to
indicate that the Union did not negotiate the high salaries as
a collective-bargaining representative, but rather, when
functioning as a talent agency. Nevertheless the Board,
citing Hollywood Ceramics. found that although the letter
was "ambiguously worded," it did not constitute misrepre-
sentation such as would warrant setting aside the election.
Moreover, I further find, as will be discussed, that "The
Huck Story" did not constitute objectionable misrepresenta-
tion within the purview of Hollywood Ceramics because: (1)
the situation at Huck was material to the election campaign
only because the Company, and not the Union, insisted on
making it so; (2) the Huck situation was initially raised by
the Company and repeatedly so, and the union handbill was
a response to the Company's assertions, and not injection of
a new matter into the campaign; and (3) the Company was
fully informed in all material respects as the situation at
Huck, and had adequate opportunity to and did fully
respond to the handbill prior to the election.
The Huck situation was injected into the campaign by the
Company, and persistently so. About March 22, i.e. early in
the campaign, the Union distributed copies of a Bureau of
Labor Statistics press release which indicated that unionized
employees were ahead in wages and benefits. Personnel
Director Hibberts testified that in preparing to meet that
assertion as part of the Company's theme of "promises
versus performance," he learned about Huck from a Board
press release on elections. About 2-1/2 weeks before the
election, he instructed personnel assistant Ralph De Kem-
per, who was assisting him in the campaign, to contact
Huck. Hibberts testified that De Kemper "called the Huck
people and gathered all the information on Huck that could
be gathered." Hibberts then prepared a chart captioned with
the "promises vs. performance" theme, discussing the
situation at Huck. The chart pointed out that although the
Union was certified at Huck in May 1975, the Union 'has
tried to accept the Company's last offer for a I-year contract
with no wage increase." It is evident from this accurate
comment that Hibberts was well informed as to the situation
at Huck. Beginning on April 22 or 23, and continuing
through Tuesday, April 27, Hibberts held a series of captive
audience meetings for groups of about 25 to 35 employees at
which he discussed Huck, using the chart which he had
prepared. Jason Williams was present at one of the last such
meetings on April 27, and it was at this meeting that he
invited the assembled employees to come by the union hall
to see the Huck contract. About April 22, the Union
distributed an open letter to employees, arguing, among
" The testimony of some witnesses concerning this matter was demonstra-
bly inreliable. Union adherent Albert Kline variously testified that the
handbill was distributed on Monday. on Monday or Tuesday, on Tuesday or
Wednesday, and finally (after a recess in his testimony) that he was pretty sure
other things, that they should not be confused about tales of
things that happened 10 to 15 years ago. As with the Huck
story, Hibberts annotated the letter with the Company's
responses and had copies enlarged and posted on plant
bulletin boards. Hibberts suggested that the employees ask
the Union about Huck, among other firms. Hibberts
candidly admitted in his testimony that Huck:
. . . was not the major issue, it was a part we tagged as
promises v. performance. It was a segment of the talk
that we used and we used not only Huck but we used
(other employers].
In sum, Huck was not so much an issue as it was an
example used by the Company as a counter argument to the
Union's assertions about the economic advantages of unioni-
zation. Until the week of April 26, the Union was silent as to
the Huck matter.
International representative Horner testified that the
Monday before the election, he spoke by telephone to Carl
Tillery in Dallas, because of reports which Horner received
concerning Hibberts' discussions of the Huck situation. As
indicated, Horner already had a copy of the rejected Huck
proposal. Horner testified that he used the contract, together
with information given to him by Tillery to prepare "The
Huck Story." Horner testified that he prepared the Union's
flier on Wednesday at the union hall where the union
conducted its meetings, that the flier was discussed and
distributed at a union meeting on Wednesday afternoon, and
was also distributed at the plant gates on Wednesday.
However, Horner admitted that he was not at the plant on
Wednesday. In fact, there was a meeting at the union hall on
Wednesday afternoon for first and second shift employees,
i.e. with sessions immediately before and after the change in
shifts. I credit the testimony of Horner that the flier was
distributed at the Wednesday meeting. However, I find that
the handbill was distributed at the main plant between 6
a.m. and 7 a.m. on Thursday, and at the satellite facility on
the morning of the election, after the Company had already
posted its response at that facility. The testimony of the
various witnesses, although often confused and contradicto-
ry, and sometimes demonstrably exaggerated, tended to
point toward those times." In this regard, the testimony of
Jason Williams, probably the most knowledge employee
concerning the Union's campaign, is significant. Williams
testified that he first saw the handbill on Tuesday, which
was the day of a general union meeting, that the handbill
was first passed out at the meeting, and that the handbill was
also distributed the next morning, which Williams referred
to as Wednesday morning. As the union meeting took place
on Wednesday afternoon, it is evident from Williams'
testimony that distribution at the plant took place on
Thursday morning. In fact, it is unlikely that the Union had
time to distribute the handbill at the plant during the shift
change between 3 and 4 p.m. on Wednesday. It is unlikely
that employees arriving early for the meeting would have
raced away and back to the plant in order to pass out the
handbill. The Union apparently did not even regard the
Huck matter as one of high priority significance. The Huck
it was Wednesday. Antiunion employee Sandy Davis testified that he attended
a captive audience meeting after the handbill was distributed although the
last such meeting took place on Tuesday.
1385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Story was inserted at the end of its flier, behind a photo of
fighter George Foreman. It is possible, as testified to by Leo
Savage, that the flier was distributed between 11 p.m. and
midnight on Wednesday, at the change from second to third
shift. However, I am not inclined to credit Savage's
uncorroborated testimony in this regard. Savage's testimony
that there was also distribution at the plant on Wednesday
afternoon was, as indicated, questionable, and the record
evidence generally indicates that the union adherents, unlike
the antiunion employees, confined their distribution to
earlier times. If as indicated, the Union distributed its flier at
the plant on Thursday morning, then it is probable that such
distribution began prior to 7 a.m., when first shift employees
reported for work at the plant. That fact is corroborated by
the testimony of Glen Hibberts, who testified that an
employee in the personnel office gave him a copy of the flier
between 8:00 and 8:30 a.m."
Personnel assistant De Kemper testified that Hibberts
brought the flier to his attention about 9:30 a.m., and that he
(De Kemper) tried to contact Huck's personnel manager,
but was unable to reach him until I I a.m. Hibberts testified
that on the basis of information given to him by De Kemper,
he annotated the Huck Story, arranged to have the plant
product engineering department enlarge and reproduce the
result for posting, received the posters between 12:15 and
12:30 p.m., checked them and gave them to De Kemper for
posting, and that De Kemper returned in about 15 to 20
minutes. I do not credit the testimony of Hibberts and De
Kemper concerning the timing of these events, because the
testimony of prominent antiunion employees, presented as
company witnesses, indicates that the Company's response
was already posted prior to the lunch break on Thursday.
Bobby Clark testified that he first saw the company poster
between 11:30 and noon, prior to his lunch break. Charlotte
Bailey testified that she saw the poster between her mid-
morning and lunch break, i.e., between 9 and 11:30 a.m. I do
not credit her subsequent attempt to back away from this
admission by suggesting that she may have first seen the
poster during her lunch break. I also do not credit De
Kemper's assertion that he was left to frantically run from
one bulletin board to another. Steven Davis testified that he
saw a woman from the personnel office putting up the
posters, which indicates that Hibberts and De Kemper were
not alone in their efforts.
Ralph De Kemper testified that Huck's personnel manag-
er, who had previously informed him of the Huck situation,
told him that the Huck employees had a $6,000 life
insurance policy. De Kemper asked about the status of
negotiations, and the response was that they were still going
on. De Kemper asked what jobs were included in the $4.47
rate, and he was informed that they were machine operators
and final inspectors. In fact, Hibberts' testimony indicates
that De Kemper received more detailed information. Hib-
berts testified that De Kemper gave him a list of duties
performed by the employees who were paid $4.47 per hour.
Hibberts further testified that on the basis of this informa-
tion he concluded that the employees in question were not
comparable to the Company's assemblers, but were compa-
rable to a chief machine. inspector, who was paid $5.85 per
" Hibberts testified that he came to work at 6 a.m. Therefore it is possible
that he arrived before the handbilling began.
hour. In light of this evidence, I find it immaterial that as
asserted by De Kemper, he did not learn until after the
election that Huck did not have assemblers as such, or as De
Kemper understood that term. Moreover, the Union cannot
be held responsible if De Kemper neglected to ask all of the
questions that he might have asked of Huck's personnel
manager.
In fact, no response was even necessary to the Union's
handbill The Company had repeatedly and correctly in-
formed its employees that there was not and never had been
a contract between the Union and Huck. If this were true,
then the Union's assertions or inferences about conditions at
Huck would be irrelevant to any prospective voter. An
election campaign cannot guarantee that the voters will
learn the ultimate and complete truth about every assertion
made during that campaign. This is particularly true where,
as here, the absence of a consummated contract did not even
become apparent until after the election. All that can be
done is to assure that the employees have an opportunity to
hear both sides and to decide for themselves, and this was
done. Moreover, assuming that the union handbills were
viewed as the presentation of new matters, the Company's
poster (attached hereto) constituted a complete response to
the Union's assertions. The poster indicated that the Huck
employees had a $6,000 life insurance policy, that it was
questionable whether or not the Union had a contract, and
that the employees at Huck who earned $4.47 per hour did
not perform work which was comparable to that of the
Company's assemblers.
I find without merit the Company's assertion that its
bulletin boards were not an effective means of communicat-
ing with its employees, because they were not located near
the timeclocks. The Union cannot be held responsible if the
Company chose to place its bulletin boards at locations
where they were not systematically and regularly in full view
of all employees, or even if the Company chose less than the
best method of responding to union literature. In fact, the
bulletin boards were a highly effective means of communi-
cating with the employees. The Company made use of its
bulletin boards during the campaign, and in a fashion similar
to its response to the Huck story. Thus, employee Nadine
Bailey testified that when something goes up on the bulletin
boards, employees normally go to see what it says, and that
this was particularly true during the election campaign. If
the Company is inferring that the Union was precluded from
distributing literature toward the close of the campaign
unless the Company could respond with yet another round
of captive audience meetings without violating the Board's
Peerless Plywood rule," that argument would be contrary to
Board law. See Electro- Wire Products. Inc.. 242 NLRB 960
(1979). The Union also cannot be faulted if the Company
delayed 4 hours or more before posting its response at the
satellite facility. In fact, the company poster, which arrived
at the satellite plant before the union handbill, was posted in
time to be seen by all employees at that facility. Satellite
Facility Supervisor James Mitchell testified that the poster
was put up at 3:45 p.m., about 15 minutes after the first shift
left work for the day. However, the first shift was at work for
'" Peerless Plywood Comnpany. 107 NLRB 427 (1953).
1386
BEAIRD-POULAN DIVISION
at least an hour the next morning, before being transported
by bus to vote at the main plant.
For the foregoing reasons, I find that Objection 3 is
without merit, and I recommend that it be overruled. See,
ITT Blackburn Company v. N.L.R.B. 545 F.2d 58 (8th Cir.
1976); GTE Lenkurt,r Inc., 209 NLRB 473, 475 (1974);
Convalescent Hospital Management Corp. d/b/a Encrest
Convalescent Hospital, 173 NLRB 38, 39 (1968); General
Electric Company Specialty Control Department, 162 NLRB
912, 913, fn. 3, 917-918 (1967). Compare, Rockwell Interna-
tional Corporation, 226 NLRB 870, 877 (1976).
F. Objection 4: lleged Campaigning or Improper
Presence in the Polling Area During the Election
This objection consists of two allegations. First, the
Company contends that union supporters were permitted to
stay in the polling area after casting their ballots. Second, the
Company contends that campaigning was conducted during
the election in violation of the Board's "Milchem Rule"
(Milchen. Inc.. 170 NLRB 362 (1968)). That rule, in essence,
prohibits prolonged conversations between representatives of
any party to the election and employees waiting to cast
ballots, without inquiry into the nature of the conversations.
In fact, the Milchern rule is irrelevant to the present case,
because the Company failed to present evidence that any
union representative engaged in a prolonged conversation
with any employee waiting to vote.
The election on April 30 took place in sessions from 6 to
I I a.m. and from 3 to 5:30 p.m. Employees were summoned
to vote in groups of about 35 to 40. The voting took place in
an area at the head of a flight of stairs. Employees waiting to
vote lined up on the stairs. The area was located in the center
of the main plant near the motor test area. Machinery was
running during the election, and consequently there was
considerable noise at the time. Employees Jason Williams,
Nadine Bailey, and Timothy Rodriguez were the union
observers. Herman Wilson, Joy Hiers. and Leo Kemp were
the company observers. During the morning sessions,
Rodriguez, Bailey, Hiers, and Wilson sat with the Board
agent at the observers table, checking voters' names, and
Williams and Kemp summoned the voters in groups to the
voting area, in accordance with a prearranged schedule,
when the time came for them to vote. During the afternoon
session, Rodriguez and Kemp summoned the voters, and the
other four observers stayed at the observers' table. The table
was next to the voting booth. When the observers who went
to summon voters assembled a group, they normally
remained in the voting area until it was time to summon
another group. Voters were summoned at intervals of 20
minutes.
At the present hearing, the Company presented Wilson as
a witness, and General Counsel presented testimony by all
three union observers. Hiers and Kemp were not presented
by any party, although there is no evidence that they were
unavailable. All of the observers gave investigatory affidavits
to the Board. The Company's observers are identified in the
Regional Director's Report on Objections as Employees I,
I1 his affidavit. Wilsln slated that someilone sutitoillcd Williams away
from the voting area, hut that the IB)ard agent pronmptly ummonecd him hack.
Williams testlified that the person wished to call hi, ateliOl t the presetnce
W, and X. It appears from Wilson's testimony that he is
"Employee I."
Wilson testified that at about 3:30 p.m., five employees
wearing union T-shirts, after having voted, went over to a
table in the voting area where there was a pot of coffee for
the Board agent and the observers. Wilson did not identify
any of the employees. Wilson testified that they helped
themselves to colTee, sat down at the table, and conversed
among themselves. In his investigatory affidavit. Wilson
indicated that they were speaking softly and did not talk to
the employees who were waiting to vote. As the coffee table
was located above the bottom of the stairway, and at the
opposite side of the room and about 20 feet away from the
observer's table, it is unlikely that prospective voters could
have heard such a conversation. Although the coffee table
was located near a table for employees whose voting was
delayed by challenge or other reason, Wilson did not
indicate that any employees were at that table. Wilson
testified that the employees remained for about 2 or 3
minutes, but that he did nothing about it because he was
busy checking papers. Wilson testified that Joy Hiers
brought the matter to his attention by suggesting that the
employees should be put out. Wilson testified that he then
called the employees' presence to the attentions of the
Board's agent. The Board agent immediately directed them
to leave. In his affidavit, Wilson admitted that the Board
agent asked why he waited so long to tell the Agent, but that
he was unable to give a answer. Nadine Bailey, who was
seated nearest to the voting booth during the second session,
testified that she did not see any voters in the voting area
drinking coffee or remaining i the voting area after the
voting. Jason Williams testified that he saw employees
getting coffee in the voting area, and that it was possible that
some, but not all of them wore union T-shirts. He testified
that he called the matter to Leo Kemp's attention, that one
of them asked the employees to leave, and that the
employees were present for less than 30 seconds. Williams
testified that the incident probably occurred during the
morning, because he was between trips to get voters.
However, in his affidavit he indicated that the incident took
place in the afternoon.
Even if I were to credit Wilson in full, his own admissions
establish that the incident presents no objectionable conduct.
No union supporter was "permitted" to remain in the
polling area, because the individuals in question were
excluded as soon as their presence was brought to the
attention of the Board agent. Indeed, after the voting Wilson
signed a statement for the Board, stating that there were no
improprieties. Moreover, Wilson's uncorroborated testimo-
ny concerning the incident is at best questionable (Williams'
testimony indicates that he was describing a different
incident). Wilson testified that Jason Williams spoke to the
employees while they were seated at the coffee table. This is
unlikely. as Williams was at the observers' table during the
afternoon session." Wilson indicated that it was Joy Hiers,
and not himself, who saw the employees, because he was
busy at the time. Nevertheless Hiers, although an agent of
the Company for the purpose of observing the election, was
oIf fremanl near the voting arcal hut that he (William,) did not resjlid.
William, testified that this, Icurred during the morning seslsioln
1387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not presented as a witness. As indicated, the Company was
on notice that this case was being conducted as an adversary
proceeding. The Regional Director's Report (p. 38) indicates
that Hiers gave an affidavit which conflicted in several
respects with Wilson's testimony (Hiers was apparently
"Employee W"). The inference is warranted that had Hiers
been produced as a witness, her testimony would not have
been favorable to the Company. I find that an incident
occurred somewhat like that described by Wilson, but I am
not inclined to rely on his testimony as an accurate
description of the incident.
Herman Wilson also testified that about 3:30 p.m. he
heard persons on the balcony and down the stairs saying
"Vote Union or else-vote Union." Wilson's testimony was
replete with inconsistencies and contradictions. Wilson
testified that he could not identify the persons by name, but
that he knew their faces, and that they were wearing union
T-shirts. However, in his investigatory affidavit Wilson
stated that he could not see any of the persons because they
were outside of the voting area, i.e. on or below the stairs,
and therefore could not be seen from the observers' table.
Wilson also stated, even then, that he could not identify the
persons. Wilson testified that he protested that Union people
were campaigning, but he admitted that he said nothing to
the Board agent. As indicated, Wilson verified in writing
that there were no irregularities during the voting. The three
union observers each testified that they did not hear anyone
say anything for or against the Union. As indicated, Hiers
and Kemp were not presented as witnesses. However, in
their investigatory affidavits both indicated that they did not
hear or see anyone campaigning in the voting area. I credit
the union observers, and I find that no observer heard or saw
any campaigning in the voting area.
The remaining testimony concerning this objection was
given by nonobserver employees. Janice Hancock testified
that on election day, a group of women were standing near
the stairs. Hancock then shifted gender. She testified that
there was a group of four or five black men with union
buttons, and that one of them (otherwise unidentified) said
to someone "If you don't vote for the Union you will be
sorry": However, in her affidavit, Hancock stated that on
the day before the election, she saw a group of eight men and
women (unidentified by race), and she overheard one of
them say "If you don't vote for the Union you will be sorry."
Nothing was said in her affidavit about any such incident on
election day. As indicated, Hancock was one of those
witnesses whose obsession with race tended to color their
testimony (no pun intended). I do not credit Hancock's
testimony. None of the remaining testimony concerning
'" The cases cited by the Company in its brierf (Golden Hours Covrlescett
Hospitals 182 NLRB 796, 810-811 (1970), and Volt Technical Corporation.
176 NLRB 823. 836-837 (1969), are not in point, as they involved election-
neering by a party to the election; in those cases, employer supervisory
personnel.
voting line talk involved express or implied threats. Antiun-
ion employee Jim Johnson testified that he heard some
people saying vote yes and others saying vote no. However,
in his investigatory affidavit he stated that he did not see
anyone campaigning for or against the Union in the voting
area. Jim's brother Joe testified that he heard people in line
yelling "vote UAW." Joe Johnson was unable to identify the
group or time in which he voted. Two company witnesses
testified that they did not hear any campaigning in the
voting area. Carol Robinson, who voted with the first shift
subassembly group (7:20 to 7:40 a.m.), testified that while
waiting in line, she heard Albert Kline hollering at them
"vote yes" and calling them "dumb ass." Kline did not
testify about the matter. However, at the time of the election
Kline worked in the warehouse, and the warehouse group
voted between 10:20 and 10:40 a.m. Robinson did not give
an investigatory affidavit. I do not credit her testimony. It
may be, as indicated by Jim Johnson, that while waiting in
line some employees said vote yes and others said vote no,
although the Company failed to present substantial credible
evidence even as to such innocuous conduct. However, the
evidence fails to indicate that any union agent engaged in
campaigning during the election or in the voting area.
Moreover, such sporadic give and take exchanges by
employees waiting to vote do not constitute "coercive and
disruptive conduct or other action which is so aggravated
that a free expression of choice of representation is impossi-
ble." N.L.R.B. v. Aaron Brothers Corporation 563 F.2d 409,
412 (9th Cir. 1977), and cases cited; see also, Sewanee Coal
Operators'Association, Inc., 146 NLRB 1145, 1147 (1964).'
G. Objection 5. The Omnibus Objection
As indicated, I ruled that the Company could not present
any matter under this objection which was not at least
arguably pertinent to the first four objections. In fact the
Company did not offer to present any matter which was not
arguably related to the first four objections, and the evidence
presented has been considered under those objections. As
Objections 1-4 have been found without merit, it follows
that I am recommending that Objection 5 also be overruled.
RECOMMENDATION"'
It is recommended that the Board reaffirm its previous
conclusion that the Union was properly certified, overruling
the Objections to the conduct of the election filed by the
Company, and that it also reaffirm its Order that the
Company bargain with the Union.
"' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommendation herein shall, as provided in Sec. 102.48 of
the Rules and Regulations, be adopted by the Board, and all objections
thereto shall be deemed waived for all purposes.
1388