EDM of Texas, Div. of Chromalloy American Corp.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 934 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EDM of Texas, Div. of Chromalloy American Corp.
and International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC. Cases 16-CA-
8182 and 16-RC-7806
September 28, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On July 17, 1979, Administrative Law Judge Wil-
liam J. Pannier III issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed a brief in opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings in the course of determin-
ing that Respondent substantially failed to comply with the requirements of
Excelsior Underwear Inc., 156 NLRB 1236 (1966), the Administrative Law
Judge stated that incorrect addresses and omissions from the Excelsior list
were of equal significance. The Board's position, however, is that omissions
are more serious than inaccurate addresses. The Lobster House, 186 NLRB
148 (1970). Based on the omissions alone, we find that Respondent failed to
comply substantially with Excelsior.
Further, the Administrative Law Judge erred in computing the percent-
ages of omissions and incorrect addresses. To reach the figure on omissions,
the Administrative Law Judge incorrectly based his computations on the
number of eligible voters disclosed by the tally of ballots rather than on the
number of employees on the Excelsior list, plus the number of omissions. See
Texas Clristian University, 220 NLRB 396, 397. fn. 7 (1975). Here. the num-
ber of names on the Excelsior list supplied by the Employer was 142. How-
ever, eight individuals having terminated their employment prior to the date
on which the list was complied, the list should have contained 134 names.
Since 16 names were omitted from the list, the corrected number on the list
itself, plus those omissions, was 150. The percentage of omissions was 16 out
of 150, or 10.667 percent.
Of 29 incorrect addresses, 8 individuals were no longer employed on elec-
tion day. Yet only five of those eight had terminated prior to the date on
which the Excelsior list was compiled. Thus the relevant number of incorrect
addresses was 24 rather than 21. Basing computation on the Excelsior list
itself, ee Texas Christian University, supra at 397. fn. 6 the percentage of
inaccuracies was 24 out of 134, or 17.9 percent.
In the absence of exceptions thereto, we adopt, proforma. the Administra-
tive Law Judge's recommendations that the portion of Objection I relating
to Colby's remarks and all of Objection 3 be overruled.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, EDM of Texas, Div. of
Chromalloy American Corp., Dallas, Texas, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held in
Case 16-RC-7806 be, and it hereby is, set aside, and
that said case be, and it hereby is, remanded to the
Regional Director for Region 16 to conduct a new
election when he deems the circumstances permit the
free choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Dallas, Texas, on March
15, 1979. On October 23, 1978,' an election was conducted
in Case 16-RC-7806 among employees of EDM of Texas,
Div. of Chromalloy American Corp., herein called Respon-
dent,2 in an appropriate bargaining unit of: All production
and maintenance employees, including leadmen employed
by Respondent at the EDM of Texas plants located at Dis-
tribution Way, Dallas, Texas, and 1648 South Highway 77,
Carrollton, Texas (Air-Vac); excluding office clerical em-
ployees, guards, watchmen and supervisors as defined in the
Act, and all employees at 13880 Harry Hines Boulevard,
Farmers Branch, Texas (United Fabrication). A majority of
the valid ballots counted were not cast for International
Union of Electrical, Radio and Machine Workers, AFL-
CIO-CLC, herein called the Union.) On October 30 the
Union filed timely objections to the conduct of the election.
On November 8 the Union filed the original charge in Case
16-CA-8182, which it later amended on November 30.
On December 14 the Regional Director for Region 16
issued a Supplemental Decision, Order and notice of hear-
' Unless otherwise stated, all dates occurred in 1978.
2 Respondent is a division of Chromalloy American Corporation, which is
a Delaware corporation licensed to do business in the State of Texas. Re-
spondent maintains plants in Dallas, Texas, where it is engaged in the busi-
ness of airplane engine overhaul and specialized machine work. Dunng the
12-month period prior to issuance of the complaint in this matter, a repre-
sentative period, Respondent sold goods valued in excess of $50,000 directly
to customers located outside the State of Texas, and, during that same pe-
nod, purchased goods valued in excess of $50,000 directly from suppliers
located outside the State of Texas. Inasmuch as this volume of business
establishes statutory jurisdiction and satisfies the discretionary standards for
asserting jurisdiction over nonretail enterprises. I find that at all times mate-
rial Respondent has been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
At all times material, the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
245 NLRB No. 119
934
EDM OF TEXAS, DIV. OF CHROMALLOY AMERICAN CORP.
ing, directing that a hearing be held to determine, in es-
sence, (a) whether, prior to the election, Respondent's direc-
tor of manufacturing, Robert E. Thornton,4 had spoken so
disparagingly of the Union's supporters that his comments
tended to inhibit and coerce employees in their election
decisions; (b) whether Thornton had, on two occasions, told
an employee that Respondent's supervisors "needed to be
improved," that he could straighten things out if given a
year, and that if he could not do so, the employees then
"could have a union anytime"; (c) whether 8-D vane de-
partment and shipping and receiving supervisor, Pete Col-
by,' told an employee that Thornton had observed that em-
ployee signing up other employees on company time, when
that employee had not, in fact, done so; (d) whether Vice
President and General Manager Charles Gumbert 6 stated,
at employee meetings, that Respondent had been paying as
much as it could pay in wages and fringes so that there was
nothing to bargain about and that if the employees selected
the Union to represent them, bargaining would start from
scratch with the result that, while the employees might gain
some benefits, they might also lose some; (e) whether a
pamphlet distributed to employees by Respondent consti-
tuted a misuse of the Board's processes by suggesting to
voters that one of the choices in the election was endorsed
by the Board; and (f) whether Respondent failed to satisfy
the requirements of Excelsior Underwear Inc., and Saluda
Knitting Inc., 156 NLRB 1236 (1966), with respect to the
accuracy and completeness of the names and addresses
made available to the Union prior to the election.
In addition, the Regional Director also issued an order
consolidating cases, complaint, and notice of hearing on
December 14 in Case 16-CA-8182, alleging that Respon-
dent had violated Section 8(a)(1) of the National Labor
Relations Act, as amended, 19 U.S.C. section 151, et seq.,
herein called the Act, by virtue of Thornton's asserted dis-
paraging comments regarding the Union's supporters and.
additionally, by a postelection asserted threat by Gumbert
to the effect that employees would be discharged or other-
wise disciplined if they persisted in engaging in protected,
concerted activities.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based on the entire record, upon
the briefs filed on behalf of the parties, and upon my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
4 In its answer, Respondent admitted the allegation in the complaint that
Thornton's title was production manager. When he testified, Thornton listed
his title as director of manufacturing. There does not appear to be any signif-
icance to this disparity for, in either event, it is admitted that at all times
material, Thornton had been a supervisor within the meaning of Section
2(11) of the Act and an agent of Respondent.
At the heanng, Respondent acknowledged that Colby had been a super-
visor within the meaning of the Act. As such, it would follow that he had
been an agent of Respondent, which has been responsible for his conduct.
Amalgamated Clothing Workers of America, A FLCIO v. N.L R. B., 365 F.2d
898, 909 (D.C.Cir. 1966).
'Respondent admitted in its answer that at all times matenal Gumbert
had been a supervisor within the meaning of Section 2(11) of the Act and an
agent of Respondent.
I. FINDINGS
A. The Disparaging Comments of Thornton
It is customary for Thornton to walk through the plant
each morning greeting employees individually. In the pro-
cess of doing this one morning, within 2 weeks prior to the
October 23 representation election, Thornton arrived in the
area where heliarc welder Richard Calvin McGill, a known
union activist, and brazer James Clark were working.
Thornton testified that when he had reached this area that
morning, the two employees had been engaged in conversa-
tion and that he had overheard Clark opining that did not
need anyone to speak for him, because he was "a good
employee, worked good and was there every day and he
could speak for himself." According to Thornton. he had
then offered his own opinion, saying that anyone who was a
good employee, had good ability, was willing to work and
to be there every day on time, "didn't need anyone to speak
for him or bargain for him because that was a good em-
ployee," but that those who were not good employees, did
not have ability, were lazy, and were not willing to be there
every day and on time needed somebody to speak for them
and "certainly should go over there and sign up because
they needed somebody like that." Thornton testified that he
had been looking at both McGill and Clark while making
these remarks.
Neither Clark nor McGill denied that Thornton had
made the comments that he claimed to have made regard-
ing "a good employee." However, both Clark and McGill
testified that the latter had been brazing when Thornton
had arrived in the area that morning, thereby inferentially
disputing Thornton's testimony that the two employees had
been engaged in conversation when he had come upon
them. Further, McGill testified that he had been working
with his back to Clark's work station prior to Thornton's
arrival. According to McGill, he had become, in effect, a
participant in the conversation when he had overheard
Thronton saying something to Clark and had turned
around to listen. At that point, testified McGill, Thornton
had said that anybody that wanted a union was a "no good
son-of-a-bitch" and was not "worth a shit," adding that
such a person "comes in late and leaves early, pushes his
work on somebody else." McGill testified that Thornton
had concluded by saying "that's the kind of man that wants
a union" and that "he had better go get his union man."
According to McGill, Thornton had been looking only at
him (McGill) while making these remarks and had repeated
them several times before walking away.
Thornton denied specifically having used the phrases
"son-of-a-bitch" and "not work a shit" during this conver-
sation that morning. He testified that he "never intention-
ally cursefd] at anyone." However, he also testified that he
did not not remember having cursed at McGill or Clark
during this conversation. Clark, like Thornton and contrary
to McGill, testified that Thornton had only made his re-
marks once, rather than several times. However, his recita-
tion of what Thornton had said corroborated that of
McGill:
He just said that the no good son-of-a-bitch that was
for the union, why he just was a unconcerned. If he
had to get where he got through the union, was a, you
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know, he-if that the only way he could get to where
he got through the union, he was lazy because he was
poking his work off on somebody else.
It is well settled "that exaggeration, inaccuracies, half-
truths, and name-calling, though not condoned, will not be
grounds for setting aside elections." Hollywood Ceramics
Company, Inc., 140 NLRB 221, 224, fn. 6 (1962). Neverthe-
less, this doctrine has been applied to situations where the
comments involved have been characterizations of the op-
posing party, of the opposing party's position, or of a par-
ty's own virtues. Where an employer engages in name call-
ing of, or deprecatory comments, directed to, employees
based on their support for or failure to support a labor
organization, such remarks are measured by a different
standard. For, such activity by employees is protected by
Section 7 of the Act. Consequently, the employer's depreca-
tory and deplorable comments are an indication to the em-
ployees that engaging in such protected activity has
"place[d] [those employees who do so] in an unfavorable
light with the Employer in contrast to those employees who
refrained from exercising their statutory rights." N.L.R.B.
v. A. Lasaponara & Sons, Inc., 541 F.2d 992, 997 (3d Cir.
1976). Therefore, "it is well settled that statements or ques-
tions implying that the employer does not look with favor
upon employees engaging in protected activities are coer-
cive because they discourage employees from engaging in
protected activities guaranteed them by Section 7 of the
Act." The Berry Schools, 239 NLRB 1160, 1162 (1979).
Here, even accepting Thornton's denial that he had re-
ferred to a union supporter as a "son-of-a-bitch," the fact
remains that under his own account of his remarks, he had
drawn a work-related distinction between those who did
not favor unions and those who supported them. In doing
so, he had categorized the latter's work as being uniformly
unsatisfactory, by virtue of the undesirable traits that he
had attributed to them, thereby "'convey[ingl to the lis-
tener that [union supporters] are looked upon with disfavor
or hostility by management' and may run the risk of dis-
charge." The Timken Company. 236 NLRB 757, 759, fn. 5
(1978).
Moreover, Clark supported McGill's testimony that
Thornton had referred to a union supporter, which McGill
had openly been, as being "a son-of-a-bitch" and, further,
that Thornton had been looking directly at McGill while
delivering his remarks. While Thornton denied having used
that phrase, he conceded inferentially, by virtue of his care-
fully phrased answer when asked if he had ever cursed at
anyone, that it was not unlikely that he had unintentionally
cursed at people. In light of the adverse characteristics that
he listed as marking a union supporter, use of the phrase
"son-of-a-bitch"-as well as "not worth a shit"-would
have been logically consistent with the message that he had
been conveying at the time. The fact that Thornton might
not have intentionally uttered these deprecatory remarks
does not, of course, serve as a basis for ignoring the fact
that they were used. Motive is not an element in appraising
whether Section 8(a)(X) of the Act has been violated. Ameri-
can Lumber Sales, Inc., 229 NLRB 414, 416 (1977). Accord-
ingly, I find the Thornton did use those phrases in connec-
tion with his remarks directed primarily to McGill and that
in so doing he reinforced the hostility which Respondent
harbored toward union supporters and the unfavorable
light which they occupied in Respondent's opinion because
of their protected activity.
Therefore, I find that by these remarks by Thornton, Re-
spondent violated Section 8(a)(1) of the Act and, further,
that it engaged in conduct which is objectionable.
B. Thornton's Comments About Respondent's Supervisors
and his Pleas for an A dded Year to Correct Existing
Problems
It is undisputed that within 2 weeks of the election,
Thornton had approached welder Herman . Rowe, had
asked how things were going and, after Rowe had replied
that they were going fine, had said that during the first 5
months that he had been there, no one had spoken to him,
with the result that "he didn't know the nature of things
that were going on," and that if the employees gave him a
year, he would "see that things were straightened out" and
if they were not, the employees "could get the Union in at
any time." According to Rowe, Thornton had also said that
"supervision is critical at this time" and that he was trying
to also "get that straightened out." It is also undisputed
that Thornton had repeated these same remarks to Rowe a
few days later.
It is well settled that "promises of benefits from voting
against the union are prohibited." N.L.R.B. v. Luisi Truck
Lines, 384 F.2d 842, 845 (9th Cir. 1967). More specifically,
"promises of benefits during an election campaign, seeking
to demonstrate to the employees that they could have their
wants satisfied without a union, are clearly a violation of
Section 8(a)(1) of the Act .... " N. L. R. B. v. Miller Redwood
Company, 407 F.2d 1366, 1368 (9th Cir. 1969). Of course,
Thornton's comments are not alleged as violations of the
Act: merely as objections. Nevertheless, a violation of "Sec-
tion 8(a)(1) is a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an election."
Dal-Tex Optical Company, Inc., 137 NLRB 1782. 1786
(1962). Consequently, even if Thornton's remarks could not
be found to violate Section 8(a)( ) of the Act, due to the
fact that they were not specifically alleged in the complaint.
as long as they satisfied the standard for finding a violation
of Section 8(a)(1) of the Act, then they would have been of
sufficient magnitude to interfere with the exercise of a free
and untrammeled choice in the election.
Quite clearly, Thornton's remarks to Rowe did constitute
an attempt to demonstrate that Respondent would be will-
ing to correct the employees' problems if they would be
willing to forego immediate representation. In fact, Thorn-
ton reinforced the promise by telling Rowe that the employ-
ees could later seek representation if matters were not
"straightened out" to their satisfaction. Consequently,
Thornton's remarks did constitute a promise of benefit in
violation of Section 8(a)(1) of the Act and, concommitantly.
objectionable conduct.
Thornton's promises were the type of conduct that was
designed expressly to induce Rowe, and others to whom he
communicated the offer, to refrain "from supporting the
Union." That same object is alleged in the complaint to
have been sought by Thornton in his comments to McGill
and Clark. discussed in section A. supra. Thus, while his
936
EDM OF TEXAS. DIV. OF CHROMALLOY AMERICAN CORP.
remarks to Rowe are not specifically alleged as violations in
the complaint, they are "sufficiently related to the subject
matter of the complaint to justify a specific finding of a
violation of Section 8(a)( ) of the Act" inasmuch as they
were "part and parcel of [Respondent's] ... antiunion cam-
paign...." Alexander Dawson, Inc. d/bla Alexander's Res-
taurant and Lounge. 228 NLRB 165 (1977), enfd. 586 F.2d
1300 (9th Cir. 1978). In this regard, it should be noted that
Respondent was on notice. by virtue of the Supplemental
Decision, that this issue would be litigated. Inasmuch as
Thornton appeared as a witness, Respondent had every op-
portunity to litigate this issue during the hearing in the in-
stant matter. See, e.g.. Jupiter 8, Inc., 242 NLRB 1093
(1979). Therefore, I find that by making the promises, Re-
spondent violated Section 8(a)( ) of the Act.
C. The Remarks h Colbh
Thornton testified that he had received word from a su-
pervisor at the Air-Vac plant that Jessie Armstrong, a
truckdriver employed by Respondent, had been passing out
literature at that plant, during company time, while there
delivering and picking up parts. Thornton told Colby. Arm-
strong's supervisor, to speak with Armstrong and to "make
it clear to him that he did not pass out literature or in any
other way disrupt employees during working hours. What
he did during break time or lunch hour was his business,
but during working hours that was not allowed." Colby
testified that he had done as directed, telling Armstrong
that Thornton had received word from the other plant that
Colby had been signing up employees there on company
time, which Armstrong denied having done, and asking
Armstrong "to not be doing it during his regular working
hours and during his break period, lunch period and after
work hours that he was free to do so but not during this
regular work period."
The Union's objection to Colby's remark to Armstrong is
that it "was designed to give Armstrong the impression that
his union activities were under close surveillance and is con-
sequently objectionable."' This argument, however, is not
without infirmities. First. in the absence of any evidence
describing Armstrong's activity at the Air-Vac plant, it
leaves unanswered the question of how Respondent's Air-
Vac supervisors had learned of Armstrong's activity at their
plant. If he had engaged in activity openly, then it could
not be inferred that he would have assumed, during his
conversation with Colby, that his activity had been the ob-
ject of clandestine and unlawful surveillance. A ero Corpora-
tion, 237 NLRB 455, fn. 2 (1978).
Second, as Respondent points out in its brief. "employees
who choose to engage in their union activities at the em-
ployer's premises should have no cause to complain that
management observes that." Milco, Inc., et al., 159 NLRB
812, 814 (1966); see also Porta Stems Corporation. 238
NLRB 192 (1978). If, therefore, Respondent had not acted
I No objections was raised to the substance of Colby's instruction not to.
in effect, engage in union activity during his "regular working hours" or his
"regular work period." Thus. there was no reason to litigate, nor was there
litigation of, the issues of whether Respondent had a valid no-solicitation
rule in existence and of whether Armstrong's activity at the Air-Vac plant
had interfered with production.
unlawfully in observing what Armstrong had been doing at
the Air-Vac plant, it can hardly be said that the fact that it
later chose to remark upon his activities, of itself and with-
out more, constitutes creating the impression of unlawful
surveillance of what he had been doing. Accordingly. I rec-
ommend that this objection be overruled.
D. Gumnhert'x Comtentr. at the Eniplosvet .feetings
Prior to the election, Respondent conducted at least two
sets of meetings at which Gumbert addressed the employ-
ees. Three employees were called to recite what he had said.
On direct examination, magnaflux inspector Lawrence Ray-
ford testified that at an early October meeting Gumbert had
stated that if the Union prevailed in the election, "the bene-
fits would be eliminated and they would have to start from
scratch and negotiate-well. start from scratch and negoti-
ate all the benefits."' This, testified Rayford. was all that he
recalled of Gumbert's remarks, though he conceded that
Gumbert had spoken for 30-40 minutes at that meeting.
On cross-examination, however. Rayford testified that
"basically what Mr. Gumbert said in his meeting" was con-
tained in the following paragraph from a leaflet. dated Oc-
tober 12, which had been distributed to the employees.
The same things apply to wages as to other benefits if a
union gets in at EDM. Whatever wages the employees
receive (if a union were to get in) would be negotiated
with the union with consideration of the wages an em-
ployee now receives. Wages and all benefits can be
negotiated up or down depending on the package deal.
If you put your company in a position to bargain with
the union, your company would naturally seek the best
economic deal possible.
Moreover, later during cross-examination. Rayford testified
that he "would think" that Gumbert "[iln so many words"
had said, as stated in another of Respondent's leaflets:
You should be aware that the company is not required
to continue its present benefits, after negotiations, if a
union gets in. Whatever benefits the employees receive
(if a union gets in) would be negotiated with the union
with consideration o the benefits the employees now
receive. The union can promise you anything but any
benefit given must come from the company. Don't be
misled. Remember, you have obtained these benefits
without paying union dues.
Nevertheless. Rayford thereafter continued to maintain
that Gumbert had said that Respondent would take away
benefits. Yet, while he then testified that he had thought
such a statement had been made in one of the leaflets that
he had examined "a few minutes ago," during cross-exami-
nation, he was unable to locate it after once more perusing
the leaflets. In the end, he conceded that he could not say
that, in testifying, he had recited Gumbert's "actual words."
McGill testified that all that he recalled Gumbert having
said during the meeting was that Respondent was providing
I Rayford further testified that he had seen a letter on Respondent's bulle-
tin board that had referred to withdrawing benefits. However, no such letter
was produced dunng the heanng and. more sgnificantly. no other witness
testified that such a letter had been posted during the preelection campaign.
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as much as it could in wages and benefits, and that if the
Union did become the employees' representative, bargain-
ing would start from scratch with the result that the em-
ployees "might gain a few benefits and ... might lose a few
benefits."9
The third witness, former employee Larry Parks, testified
that he had not attended the early October meeting but had
attended a meeting to September and another meeting a
few days prior to the election. He claimed that at both
meetings Gumbert had said that selection of the Union as
the employees' representative would lead to loss of their
existing benefits and that negotiations would have to start
from scratch. This was all that Parks could recall Gumbert
having said at these meetings. However, no other witness
corroborated Parks' account that Gumbert had made such
comments at meeting other than in early October-which
Parks testified that he had not attended. Indeed, Rayford
has attended one of the meetings conducted shortly before
the election. Obviously, Rayford was aware of the import of
remarks such as those attributed to Gumbert by Parks, in
light of Rayford's own description of what Gumbert had
said at the early October meeting. Yet, Rayford testified
that Gumbert had confined his remarks, during the meeting
immediately prior to the election, to reading from a book-
let, "Fact and Fiction."
In referring to the testimony given by these three wit-
nesses, Gumbert testified as follows:
Yeah, I don't recall specifically using the word
scratch. That's a part of my vocabulary and I could
have and I may have. In the context they were speak-
ing is when I was speaking on our present benefits and
telling them what negotiations consisted of. And inas-
much as making it clear to them that in negotiations
that you weren't guaranteed that everything was going
to go up, that negotiations consisted of putting every-
thing out on the table and bargaining from that point,
some could go up and some could go down, primarily
to give them an understanding of what a union election
was and what negotiations consisted of.
As framed by the Regional Director's supplemental deci-
sion, the issues presented by Gumbert's comments during
these meetings pertained to his asserted remark that nego-
tiations would start from scratch and to his purported com-
ment that Respondent was paying all that it could in wages
and fringes with the result that, while the employees might
lose and gain some benefits as a result of bargaining, there
was nothing to bargain about, inasmuch as Respondent
could not afford to pay any more.
In resolving these issues, I do not credit Parks' account of
what Gumbert had purportedly said at the asserted Sep-
tember meeting and at the meeting shortly before the elec-
tion. Parks had been terminated by Respondent and ap-
peared not to be favorably disposed to its interests. His
'While McGill further testified that Gumbert had said that it made no
sense for the employees to seek representation and that there was nothing to
bargain about, during cross-examination it became apparent that he could
not testify that these purported remarks had actually been uttered by Gum-
bert. Rather, they were inferences drawn by McGill from the remarks actu-
ally made by Gumbert and constituted what McGill had "understood" to be
the bottom line of what Gumbert had been telling the employees.
recollection of what had been said by Gumbert was quite
limited. There was no corroboration for his testimony that
there had been a meeting in September. Rayford described
what had been said by Gumbert at one of the meetings
conducted shortly before the election. While it is not clear
whether he had been in attendance at the same meeting as
Parks claims to have attended that day, each set of meetings
held on a given day apparently had been designed to com-
municate the same information to employees. Thus, it is
likely that what Gumbert had said at one meeting on a
given day would have been repeated at the other meeting
conducted that same day. Yet, Parks made no mention of
the offending statements attributed to Gumbert by Rayford
during the last set of employee meetings conducted by Re-
spondent prior to the election. Nor did any other witness
corroborate Parks' account of Gumbert's comments. Ac-
cordingly, I do not credit Parks' recitation of Gumbert's
purported remarks during the employee meetings.
Nor do I rely on McGill's testimony concerning Gum-
bert's alleged comments that it made no sense for the em-
ployees to select representation inasmuch as there was
nothing about which to bargain. While I felt that McGill
was a candid individual, his memory concerning what
Gumbert had said appeared none too precise and, as he
implicitly conceded, his recitation of Gumbert's remarks in
this regard appears to have been based upon how he had
"understood" those comments, rather than upon the words
that Gumbert had actually spoken. Yet, the proper test
here, as in appraising conduct and words under other areas
of the Act, is what actually had been said and not the sub-
jective understanding of employees concerning the words
which had been spoken. See, e.g., N.L.R.B. v. Clearfield
Cheese Co., Inc.. 322 F.2d 89, 93-94 (3d. Cir. 1963). For a
similar reason, I do not credit Rayford's testimony that
Gumbert had said that the employees would lose all exist-
ing benefits. As with McGill, Rayford appeared to be a
candid witness, but one whose perception or recollection
had been clouded by his subjective impressions. This con-
clusion is amply illustrated by his testimony that he thought
that he had seen the offending statement, about Respon-
dent taking away benefits, in the literature about which he
was being cross-examined. His review of these documents
quickly disclosed that no such statement appeared therein.
Therefore, neither McGill's account that Gumbert had
said that it made no sense for the employees to seek repre-
sentation as there was nothing about which to bargain nor
Rayford's account that Gumbert had said that selection of
the Union would lead Respondent to take away the em-
ployees' existing benefits can be relied upon to find that
these remarks had actually been made by Gumbert. How-
ever, I do find that in the early October meetings, Gumbert
had said that, should the employees select the Union as
their representative, negotiations would start from scratch.
Both Rayford and McGill testified that he had used this
phrase. Gumbert conceded that it was "a part of his] vo-
cabulary," and, further, that he "could have" and "may
have" used it. If that phrase is inserted into Gumbert's own
above-quoted account of what he had told the employees,
then what he had said had been "that negotiations con-
sisted of [starting from scratch by] putting everything out
on the table and bargaining from that point, some could go
938
EDM OF TEXAS. DIV. OF CHROMALLOY AMERICAN CORP.
up and some could go down ... " The above-described
testimony of McGill, supra, pages 8-9, tends to confirm that
this had been, in effect, what Gumbert had told the employ-
ees: that bargaining would start from scratch and that some
benefits might be gained and some lost.
In conducting elections, the Board views its function as
being one of assuring that "employees have the opportunity
to cast their ballots for or against a labor organization in an
atmosphere conducive to the sober and informed exercise of
the franchise, free ... from other elements which prevent or
impede a reasoned choice. [Underscoring supplied.]" Sewell
Manufacturing Company, 138 NLRB 66, 70 (1962). See also
N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969).
Thus, it is neither a violation of the Act nor objectionable
conduct for an employer to tell employees that all benefits
will be negotiable and that existing benefits may be lost as a
result of the bargaining process. See, e.g., Stumpf Motor
Company, Inc., 208 NLRB 431, 432 (1974). For, "it is per-
missible to inform employees of the realities of the collec-
tive-bargaining process, which necessarily include the possi-
bility that the union might trade away some existing
benefits and that reaching agreement may be difficult."
Madison Kipp Company, 240 NLRB 879 (1979).
Where, however, the employer's statements "effectively
threaten employees with the loss of existing benefits and
leave them with the impression that what they may ulti-
mately receive depends in large measure upon what the
union can induce the employer to restore," they are objec-
tionable. Plastronics, Inc., 233 NLRB 155, 156 (1977). For.
such statements demonstrate "that the risk of loss stems not
from the give and take of good-faith bargaining, but from a
regressive bargaining posture predetermined by the Em-
ployer." Tufts Brothers Incorporated, 235 NLRB 808 (1978).
Here, Gumbert told the employees that negotiations
would start from scratch. While such a statement "is a dan-
gerous phrase which carries within it the seed of a threat
that the employer will become punitively intransigent in the
event the union wins the election," Coach and Equipment
Sales Corp., 228 NLRB 440 (1977), "such statements are
not objectionable when additional communication to the
employees dispels any implication that wages and/or bene-
fits will be reduced during the course of bargaining and
establishes that any reduction ... will occur only as a result
of the normal give and take of collective bargaining. [Cita-
tions omitted.]" Plastronics, supra. In the instant case, as
found above, after saying that negotiations would start
from scratch, Gumbert went on to tell the employees that
"some [benefits] could go up and some could go down" as a
result of the bargaining process. At no point, so far as the
credible testimony discloses, did he say that Respondent
would act unilaterally, outside of the bargaining process, to
take away any benefits. Moreover, the portions of Respon-
dent's literature reproduced above state specifically that
wages and benefits "would be negotiated with the union
with consideration of [what] the employees now receive."
Therefore, in the circumstances, there was neither a
threat to take away wages and benefits currently being re-
ceived by the employees nor a threat to adopt a regressive
bargaining posture to punish them should they select repre-
sentation by the Union. Rather, Gumbert's own added
comments to the employees following his statement about
benefits being negotiated from the scratch and the literature
distributed by Respondent in the course of the campaign.
which the Regional Director found specifically had not con-
tained objectionable comments. made clear, tested by an
objective standard, that Respondent was doing no more
than informing the employees that all benefits would be
negotiable and that existing benefits might be lost, as well
as improved, as a result of the give and take of the bargain-
ing process. Therefore, I recommend that this objection be
overruled.
E. The Pamphlet Distributed to Employees
On the morning of the election, Respondent distributed a
4-page pamphlet, attached as Appendix B. to all employees
in the unit and scheduled to vote that day. The third page
of that pamphlet bears a facsimile of the ballot to be used
that day in the election, marked "Sample." Below the fac-
simile ballot appears a printed hand pointing to the "NO"
choice on the ballot and underneath which is the legend:
"Your X in this square will mean you do not want this
union." The remainder of the pamphlet exhorts employees
to vote in the election, instructs employees as to procedures
for voting and as the lack of effect of prior activity. such as
having signed a card, on their choice in voting, and, on the
fourth page, carries the message: "During the past weeks
we have given you the true facts. The purpose of this was so
you could consider the facts before you vote. We have
made no attempt to interfere with, restrain or coerce you.
The decision is yours to make and it will be made in se-
cret." At no place does the pamphlet explain that the "We"
refers to Respondent and at no place in the pamphlet does
Respondent's name as author appear.
The Board's concern, where one of its official documents
is reproduced and accompanied by a partisan message, is
"with the possible impact such a partisan message added to
an official Board document, or copy thereof, might have on
the freedom of choice of the voter." Rebmar, Inc., 173
NLRB 1434 (1968). The Board has held that the insertion
of a printed hand, such as that which appears below the
facsimile ballot on Respondent's pamphlet, accompanied
by an identical legend to that quoted above, regarding what
an "X" in the "NO" choice on the ballot means, suffices to
constitute a partisan message when used in connection with
a facsimile ballot. Building Leasing Corporation, 239 NLRB
13 (1978). Indeed, the only differences between the situ-
ation there and that presented in the instant case is that in
Building Leasing there were two printed hands pointing to
the "NO" choice and one of them intruded on the actual
dimensions of the reproduced ballot. Yet, the reason for the
Board's rule proscribing reproduction of an altered copy of
the Board's official ballot is that it "necessarily, at the very
least, must tend to suggest that the material appearing
thereon bears this Agency's approval." Allied Electric Prod-
ucts, Inc., 109 NLRB 1270, 1272 (1954).
If the printed hands and legend in Building Leasing con-
stituted such a suggestion, then whether or not the hand
actually touched the reproduced ballot cannot truly be a
distinction of any significance. For, the degree of intrusion
upon the facsimile ballots, itself, hardly changes the mes-
sage suggested to the prospective voters. Here, notwith-
standing the use of the word "We" on the final page of the
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pamphlet. Respondent was not identified by name as the
author of the pamphlet. See Building Leasing (where letters
from the employer which accompanied the reproduced bal-
lots distributed to the employees did not serve to sufficiently
identify the source of the latter). The above-quoted com-
ment appearing below the hand is in type similar to the
ballot itself' Indeed, the total appearance of the pamphlet,
containing what appear to be neutral statements regarding
voting rights and procedures, is such as to suggest that it,
like the notices of election, emanated from the Board,
rather than from one of the parties to the election. As such,
the reproduced ballot with its accompanying hand and leg-
end "may he interpreted by the employee as an endorse-
ment by the Board of one of the parties to the election, and
thus have an impact on the employees' freedom of choice."
Rebmar Inc.. supra. Therefore, I find that by distributing
the pamphlet. Respondent engaged in objectionable con-
duct.
F. The Excelsior List
The election in Case 16 RC-7806 was directed by a De-
cision and Direction of Election dated September 26.
Thereafter, the unaffiliated computer firm which prepares
Respondent's payroll was asked by Respondent to furnish
the employee list required by the Board's Excelsior Under-
wear doctrine. Using forms which employees complete
when hired by Respondent, ' ° the computer firm transmitted
the list containing 142 names to Respondent which, after
retyping it so that the names would be in alphabetical or-
der, sent it to the Board's Regional Office.
By letter to the Region, dated October 10, the Union
inquired about 15 employees whose names had not ap-
peared on the list. Upon inquiry, Respondent's counsel fur-
nished the Region with the names and addresses of 10 addi-
tional employees during a telephone conversation on
October 17. Although the names of these 10 employees
were then relayed to the Union by the Region, the Union
did not receive their addresses until October 19, when it
received a copy of Respondent's counsel's confirming letter
to the Region, listing those addresses. At the preelection
conference, Respondent proposed that 17 names be stricken
from the eligibility list on the basis that those employees no
longer worked for Respondent. Nine of them had been ter-
minated by September 23, the payroll date used for compil-
ing the Excelsior list. During the election seven ballots were
challenged on the ground that the names of those employ-
ees did not appear on the eligibility list. Following the elec-
tion, the parties agreed that six of them had been eligible to
vote in the election as they had been hired prior to Septem-
ber 23. In sum, the Union had not been given the names
and addresses of 16 eligible voters, and, conversely, had
been given the names of nine employees whose employment
with Respondent had been terminated prior to commence-
ment of the eligibility period.
On October 13, 16, and 19, the Union mailed literature to
the addresses of all employees whose names appeared on
1t Respondent has urged its employees to provide notification of any
changes of addresses and, further, at least once a year, Respondent inserts a
form requiring all employees to submit their then-current addresses with the
paychecks distributed to employees.
the Excelsior list prepared by Respondent. At the hearing
the Union produced 29 envelopes which the Postal Service
had been unable to deliver to the addresses shown on that
list. Since most of these envelopes had not been returned
prior to the election date, the Union had been unaware of
their nondeliverability and, consequently, had mailed a to-
tal of 87 items to employees that were not deliverable.
The purpose for the Excelsior requirement is to further
"the fair and free choice of bargaining representatives . . .
by encouraging an informed employee electorate and by
allowing unions the right to access to employees that man-
agement already possesses." Wyman-Gordon Company, su-
pra. Here, there were approximately 142 eligible voters in
the unit, based on the tally of ballots. Because of the omis-
sions on the list submitted by Respondent, the Union was
deprived of the opportunity to communicate with 10 of
them for the full period to which it was entitled and, fur-
ther, was dteprived of the opportunity to communicate alto-
gether with six of them prior to the election. These omis-
sions amount to II percent of the unit employees. While
there is no evidence that they were deliberate, the fact re-
mains that the Union "did not have [a complete] opportuni-
ty prior to the election to inform a substantial percentage of
the electorate of its position and the issues raised by it."
Pacific Gamble Robinson Co./Omaha Branch d/bla Gamble
Robinson Co., 180 NLRB 532 (1970); see also Chemical
Technology, Inc., 214 NLRB 590 (1974).
Of equal significance is the fact that for 21 of the eligible
employees (eight of the incorrect addresses were those of
employees who had been terminated by Respondent, but
whose names had appeared on the list submitted by Re-
spondent) incorrect addresses had been furnished. By the
time that the Union had discovered the inaccuracies, it was
impossible to communicate with those employees prior to
the election. These inaccuracies amount to approximately
15 percent of the total eligible employees in the unit. Thus,
the combined effect of the omissions and inaccuracies was
to deprive the Union of its full opportunity, to which it was
entitled, to communicate for a full period with approxi-
mately 25 percent of the employees in the unit prior to the
election. I find that this constitutes grounds for setting aside
the election inasmuch as it resulted in depriving a quarter
of the eligible employees of their right to be fully informed
about the issues.
G. Gumbert's Post-Election Comments to McGill
By November I the welders had been discussing among
themselves their dissatisfaction with working under differ-
ent supervisors and their desire to return to the system
whereby one working foreman had supervised all of them.
McGill volunteered to speak with Gumbert regarding the
matter. After lunch break that day, McGill went to Gum-
bert's office where he said that the day-shift welders would
like to meet with Gumbert to discuss a change from work-
ing for the various supervisors to working for a single weld-
ing foreman. Gumbert became upset, saying that the weld-
ers were not going to tell him who was going to be their
boss, that McGill was not running Respondent, that the
employees had wanted a union election and had gotten one,
that Respondent had beaten "you fair and square," and
that McGill should "just settle down and go back to work."
940
EDM OF TEXAS. DIV. OF CHROMALLOY AMERICAN CORP.
When McGill persisted in arguing the matter, Gumbert
told him "that if you and Larry [Parks] don't settle down
and go back to work, he said, right now we're just waiting
and he said that we won't have no alternative but to let you
go."" McGill inquired if Gumbert was firing him. Gumbert
replied that he was not then asked what was McGill's prob-
lem. The latter said that his problem was getting "loaned
out" to two or three different supervisors, each of whom
then wanted his work completed. Gumbert called in
McGill's immediate supervisor and instructed him to be
certain that McGill was not loaned out to more than one
supervisor.
In addition to granting employees the right "to form.
join, or assist labor organizations," Section 7 of the Act
grants them the independent right "to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection." Thus, the fact that the
Union had not prevailed in the October 23 election did not
serve to deprive Respondent's employees of their right to
engage in activities for "mutual aid or protection." "[E]m-
ployees shall have the right to engage in conceited activities
for their mutual aid or protection even though no union
activity be involved, or collective bargaining be contem-
plated." N.L.R.B. v. Phoenix Mutual Life Insurance Com-
pany, 167 F.2d 983, 988 (7th Cir. 1948), cert. denied, 335
U.S. 845 (1948). That McGill had been engaged in pro-
tected, concerted activity at the time that he had met with
Gumbert is shown by the fact that he had previously con-
ferred with other employees regarding the divided supervi-
sion problem and by the further fact that the complaint
voiced was one which pertained to the effect that divided
supervision was having upon the employees' working condi-
tions. "It is sufficient to constitute concert of action if from
all of the facts and circumstances in the case a reasonable
inference can be drawn that the men involved considered
that they had a grievance and decided, among themselves,
that they would take it up with management." N.L.R.B. v.
Guernsey-Muskingum Electric Cooperative, Inc., 285 F.2d 8,
12 (6th Cir. 1960).
Although Respondent possesses the right to discharge
employees for cause under Section 10(c) of the Act, "this, of
course, cannot mean that an employer is at liberty to pun-
ish a man by discharging him for engaging in concerted
activities which §7 of the Act protects." N.L.R.B. v. Wash-
ington Aluminum Co., 370 U.S. 9, 17 (1962). Respondent
argues in its brief that Gumbert's threat had not been di-
rected to McGill's request for a meeting to discuss the di-
vided supervision problem, but rather had pertained to
"McGill's work attitude and performance." This is plainly
not the fact. At no point during this meeting did Gumbert
make any reference to McGill's "work attitude and per-
formance," save in the context of admonishing him that the
Union had lost the election and that he was not running
Respondent. Clearly, the only topic under consideration
during the entire meeting was the request for a meeting to
discuss divided supervision. Indeed, the meeting ended with
Gumbert granting McGill the personal benefit of being re-
' Gumbert agreed that these remarks, as testified to by McGill, were basi-
cally a correct recitation of what had been said. except that Gumbert did not
recall having mentioned Parks during the conversation.
lieved of' that problem. Therefore. I find that by Gumbert's
remarks. Respondent did threaten that employees would he
discharged or otherwise disciplined if they engaged in pro-
tected, concerted activities.
11. THlt EFF('CT OF HE UNFAIR L.ABOR PRA( II(FS I'P()N
( OMMER( CE
The activities of EDM of Texas, Div. of ChromalloN
American Corp., set forth above, occurring in connection
with its operations, described above. have a close, intimate.
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead, and have led, to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONC(lUI t NS O() LAw
1. EDM of Texas. Div. of Chromalloy American Corp..
is an employer within the meaning of Section 2(2) of the
Act engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Electrical, Radio and Machine
Workers, AFL CIO-CLC is a labor organization within
the meaning of Section 2(5) of the Act.
3. By disparaging and expressing hostility toward em-
ployees for engaging in activity protected by the Act, by
promising to improve conditions of employment if its em-
ployees refrained from seeking representation until suffi-
cient time had elapsed to determine whether those improve-
ments would be effected, and by threatening that employees
would be discharged or otherwise disciplined if the' en-
gaged in protected activities. EDM of Texas. D)i. of
Chromalloy American Corp.. violated Section 8(a)( 1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. It is recommended that Objections 1, insofar as it per-
tains to comments by Colby, and 3 be overruled: that Ob-
jections 1, insofar as it pertains to disparaging comments by
Thornton, 2, 9, and 10 be sustained; that the election con-
ducted on October 23. 1978, in Case 16 RC 7806 he set
aside: and that a second election be conducted.
REMEDY
Having found that EDM of Texas. Div. of Chromalloy
American Corp., has engaged in certain unfair labor prac-
tices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action
to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 2
The Respondent. EDM of Texas, Div. of ChromalloN
American Corp.. Dallas, Texas, its officers. agents. succes-
sors and assigns, shall:
2 In the event no exceptions are filed as provided bh Sec 02.46 o the
Rules and Regulations of the National Labor Relations Board. the findings,
(Co immnued,
941
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Disparaging and expressing hostility toward employ-
ees for engaging in activity protected by the Act; promising
to improve conditions of employment if its employees will
refrain from seeking representation until sufficient time has
elapsed to determine whether those improvements will be
effected, and threatening that employees will be discharged
or otherwise disciplined if they engage in activities pro-
tected by the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of th Act:
(a) Post at its Dallas and Carrollton, Texas, facilities
copies of the attached notice marked "Appendix A."" Cop-
ies of the notice, on forms provided by the Regional Direc-
tor for Region 16, after being duly signed by its authorized
representative, shall be posted by EDM of Texas, Div. of
Chromallory American Corp., immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by EDM of Texas, Div. of Chromalloy
American Corp., to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS RECOMMENDED that the election held on October 23,
1978, among EDM of Texas, Div. of Chromalloy American
Corp.'s employees, in the bargaining unit described in the
conclusions and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
"Statement of the Case" section of this Decision, be set
aside by the Board, and that Case 16-RC-7806 be severed
and remanded to the Regional Director for Region 16 for
the purpose of conducting a new election at such time as he
deems that circumstances permit the free choice of a bar-
gaining representative.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activity.
WE WILL NOT disparage and express hostility toward
you for engaging in activity on behalf of International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, or any other labor organization.
WE WILL NOT promise to improve conditions of em-
ployment if you agree to refrain from seeking represen-
tation until such time as you can determine whether
conditions have been improved by us.
WE WILL NOT threaten that you will be discharged
or otherwise disciplined if you engage in activities pro-
tected by the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights set forth above.
EDM OF TEXAS, Dlv. OF CHROMALLOY AMERICAN
CORP.
942