Fort Worth Steel & Machinery Co.

National Labor Relations Board - Board Decisions

Jun 8, 1979

242 N.L.R.B. 917 (N.L.R.B. 1979)

FORT WORTH STEEL AND MACHINERY COMPANY
Fort Worth Steel and Machinery Company and
United Steelworkers of America, AFL-CIO Peti-
tioner. Case 16-RC-7666
June 8, 1979
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY MEMBERS JENKINS, MURPHY, AND TRUESDAL.E
On September 20, 1978, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding.' Thereafter, the Employer filed excep-
tions and a supporting brief, and the Petitioner filed a
response to the Employer's exceptions and in support
of the Administrative Law Judge's Decision.
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 only to
the extent consistent herewith.
On March 22, 1978, an election was conducted pur-
suant to a Stipulation for Certification Upon Consent
Election. The tally was 89 for, and 127 against, the
Petitioner, with I void and I challenged ballot. There-
after, three timely objections were filed by the Peti-
tioner. These objections were held by the Administra-
tive Law Judge to be without merit, and in absence of
objections thereto we adopt, pro forma, his recom-
mendations that those objections be overruled. How-
ever, the Petitioner raised additional matters at the
hearing without objection from the Employer, which
matters were fully litigated. These matters raised two
issues which were, as stated by the Administrative
Law Judge, (I) "Whether the Employer, by its super-
visors and agents, improperly failed to remove de-
faced election notices prior to the election"; and (2)
"Whether the Employer . . . improperly interfered
with the Board's election process by refusing to allow
the Board's representative the opportunity to check
the posted election notices." The Administrative Law
Judge answered both questions in the affirmative and,
in consequence, recommended that the March 22
election be set aside and a new election directed. We
disagree with his conclusions.
I Upon the opening of the heanng before the Administrative Law Judge.
the parties agreed to settle the issues raised in Case 16-CA-7815. The settle-
ment agreement was approved and Case 16-CA-7815 was continued pend-
ing compliance with the settlement agreement. Thereafler, the Board in its
order transfemng this proceeding to the National Labor Relations Board
severed Case 16-CA-7815 from Case 16-RC-7666. Accordingly, the only
case now before the Board is 16 RC-7666.
With respect to the defaced election notices issue,
employee Mary Lou Duncan testified, inter a/ia, that
there were two official Board notices posted in the
plant with X's placed in the "no" boxes, and that she
reported this to the Petitioner on March 20. The Peti-
tioner informed the Board's Regional Office which, in
turn, notified the Employer apparently sometime on
the morning of March 21. Then, according to Person-
nel Manager Geary Quinn, lie inspected all 10 notices
in the plant and took down 3 that were defaced. Dun-
can further testified, however, that the "next time"
she came to work apparently on March 21-the no-
tices she complained of were still posted. At a preelec-
tion conference on March 22, Quinn produced three
defaced ballots which he asserted were those taken
down the previous day. Two of these had X's in the
"yes" box, while the third had a smudge over the
"no" box. 2 The Petitioner's counsel asked permission
to go into the plant to inspect the notices posted
there. The Employer refused the request.
From the foregoing the Administrative Law Judge
concluded that two official notices were posted in the
plant with X's marked in the "no" boxes; that the
Employer did not take them down; and that the Em-
ployer thereby sought an improper partisan advan-
tage by employing such notices to convey apparent
Board approval of, and favoritism for, a "no" vote.
We find these conclusions unpersuasive for several
reasons. The initial weakness is that they ultimately
rest on Duncan's testimony, which the Administra-
tive Law Judge relied upon, but which we find on the
face of the record to be confused, inconsistent, and
therefore unreliable. Thus, in her pretrial affidavit
and in certin testimony Duncan state that she saw
two notices defaced one in the shipping department
and one in the machine shop exit. However, also in
her testimony, when asked about defaced notices, she
frequently referred to a single notice only; i.e., to "it"
or "the notice." Yet on another occasion she testified
to seeing three notices, stating specifically all three
were marked with an X in the "no" box; but later,
when her inconsistency was pointed out to her, she
testified that one of the three was unmarked. Conse-
quently, as Duncan's testimony concerning the exis-
tence of posted, defaced Board notices is inconsistent
and confused, it does not constitute probative evi-
dence supporting the claim that at times relevant two
notices with X's marked in the "no" boxes were or
remained posted in the Employers plant.3 Further, we
find no support, as did the Administrative Law Judge,
for concluding that defaced notices were posted-or,
if posted, that the Employer failed to remove them-
2 The Employer placed three defaced ballots in evidence which it asserted,
and the Administrative Law Judge in effect found, were those produced at
the preelection conference.
C Que Enterprises, Inc., 140 NLRB 1001, 1003 (1963).
242 NLRB No. 133
917
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the fact that the Employer refused to permit the
Petitioner's representative to enter the plant to in-
spect the posted notices. The Employer had, of
course, no legal obligation to grant the Petitioner
such access to its plant, as contrasted to the polling
place itself. Consequently, in the circumstances here,
where the Employer claimed it had removed all such
notices and where there is no independent evidence-
i.e., evidence apart from the refusal itself-even to
suggest defaced notices had not been removed as
claimed,4 or that the Employer was otherwise acting
in bad faith, we cannot infer that the exercise of the
right of refusal somehow confirms the claim that two
defaced notices were posted at the time of the preelec-
tion conference or at another time or that Respondent
intentionally did not remove such notices on march
22. In view of the foregoing, we find there is insuffi-
cient evidence in the record to support the conclusion
reached by the Administrative Law Judge that the
Employer did not take down the alleged defaced no-
tices, assuming they existed, and thus that it thereby
sought a partisan advantage by, in effect, employing
the alleged notices to convey to the employees Board
approval and support for a "no" vote.'
With respect to issue (2) stated above, the Adminis-
trative Law Judge held that the Employer, by "deny-
ing the Board agent and the Union's representative
access to the plant" to inspect the Board notices for
any "defacements," impressed upon the employees
that it, rather than the Board, "governed certain mat-
ters related to the electoral process" and thereby en-
gaged in objectionable interference and restraint. We
find merit in the Employer's exception thereto.
We have already held above that denial of general
plant access to the Union's representative was not, in
the circumstances before us, improper, and we see no
basis for holding that such denial in any manner im-
pressed upon employees improper control over the
election process.
Furthermore, we find no merit in the Administra-
tive Law Judge's Decision on this aspect insofar as it
finds a denial of access to the Board agent, as there is
no evidence that the Board agent ever requested or
desired access. To be sure, after he himself had been
refused access during the preelection conference and
'As indicated. Duncan stated that the "next time" she came into the plant
after having reported the defaced notices to the Union, those notices re-
mained posted. Even assuming there were such notices, this testimony of
Duncan does not undercut the Employer's claim that it removed all such
notices, for the "next time" Duncan came into the plant was early on the
morning of March 21. while the Respondent was not notified of. and made
no attempt to remove, defaced notices until late that morning.
I Member Jenkins does not find that the clear preponderance of the evi-
dence establishes that the Administrative Law Judge's decision to credit
Duncan was incorrect. See Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). Nonetheless. hejoins his colleagues
in finding that the record does not warrant a conclusion that Respondent
failed to remove defaced election notices after having been asked to do so by
the Regional Office.
in the presence of the Board agent, the Petitioner's
counsel immediately requested that the Board agent
be permitted to inspect the notices, at which point the
Employer's counsel stated he "wasn't going to have a
bunch of damn people running throughout his plant."
But whatever may be the possible implications of that
comment, there is nevertheless no evidence that the
Board agent made any request for access, or that the
Employer would have turned down the Board agent's
request if it had in fact been made. Consequently,
there is no ground for concluding that the Employer
either directly or indirectly denied access to the Board
agent.
In view of all the foregoing, we find, contrary to the
Administrative Law Judge, that the Employer did not
engage in objectionable conduct. We therefore over-
rule the objections in their entirety and shall certify
the results of the March 22. 1978, election.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for United Steelworkers of
America, AFL-CIO, and that said labor organization
is not the exclusive representative of all the employ-
ees, in the unit herein involved, within the meaning of
Section 9(a) of the National Labor Relations Act, as
amended.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge filed in Case 16-CA-7815 by the United Steelwork-
ers of America, AFL-CIO, herein called the Union, on or
about March 20, 1978, was served on the Fort Worth Steel
and Machinery Company, herein called Respondent or the
Employer, on or about the same date. An Order consolidat-
ing cases and notice of hearing was issued on April 24,
1978, in which Case 11-RC-7666' was consolidated with
Case 16-CA-7815, "for the purpose of hearing, ruling, and
decision by an Administrative Law Judge, and that there-
after Case 16-RC-7666 will be transferred to and continued
before the Board in Washington, D.C., and that provisions
of Section 102.46 and 102.49(e) of [the Board's Rules and
Regulations, Series 8, as amended] shall govern the filing of
exceptions."
In Case 16-RC-7666 objections to the conduct of an election affecting
the results of the election conducted on March 22, 1978, had been filed by
the Union. The report on the objections discloses:
Pursuant to Section 102.69 of the Board's Rules and Regulations,
Series 8, as amended, the undersigned has conducted an investigation of'
the Objections, and having duly considered all of the evidence sub-
mitted and otherwise disclosed by the investigation, has determined that
these Objections raise substantial and material questions of fact and law
which can best be resolved by a hearing.
Since the foregoing objections are also alleged as unfair labor prac-
tices in Case No. 16-CA-7815, wherein Complaint and Notice of Hear-
ing will be issued, Case No. 16-RC-7666 will be consolidated in said
Complaint for the purpose of hearing.
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FORT WORTH STEEL AND MACHtINERY COMPANY
The consolidated cases came on tfor hearing, on July 24
and 25, 1978. at Fort Worth. Texas. Each party was af-
forded a full opportunity to he heard, to call, to examine
and cross-examine witnesses, to argue orally on the record.
to submit proposed findings of fact and conclusions, and to
file briefs. All briefs have been carefully considered.
Upon the opening of' the hearing, the parties agreed to
settle the issues raised in Case 16 CA 7815. The settlement
agreement was approved and Case 16 CA 7815 was con-
tinued pending compliance with the settlement agreement.
Thereafter, evidence was taken on the Union's objections to
conduct affecting the results of the election in Case 16 RC
7666, pursuant to the Order above mentioned.
The Objections
The Union, in its brief, has presented the following three
issues for resolutions:
(a) Whether the Employer, by its supervisors and
agents, has discriminatorily restricted conversations
among union supporters while not ent;orcing similar
restrictions with regard, to nonunion supporters.
(b) Whether the Employer, by its supervisors and
agents. improperly failed to remove defaced election
notices prior to the election.
(c) Whether the Employer, by its supervisors and
agents, improperly interfered with the Board's election
process by refusing to allow the Board's representative
the opportunity to check the posted election notices.
The first issue refers to the Union's Objection 3., Evi-
dence in respect to the remaining issues was offered at the
hearing without objections from the employer. The issues
were fully litigated. Thus, these issues are here for decision.
although not specifically set out in the Union's objections.'
First-Issue A, Objection 3:
The Union offered evidence to suport this issue by the
testimony of employee Mary Lou Duncan', a person known
to the employer to have been a union partisan. Duncan's
supervisor. Duane Lynne Woods, told Duncan and em-
ployee Eva Green that they were not to talk "about the
union during working hours." This comment occurred after
Duncan had asked Woods why "the people wearing 'No'
buttons ... was allowed to campaign during working hours,
2 The Union's Objection 3 reads as follows:
"3. The employer, by its supervisors and agents, has enforced a rule
with prejudice and discrimination by not allowing employees who sup-
port the union to converse with employees on other shifts and/or in
other work areas, while employees who are non-supportive of the union
[are] allowed to move through the plant at will including during work-
ing hours."
' he record as a whole does not reveal that the Union has sustained its
burden of proof as to union Objections I and 2, which are hereby over-
ruled.
"It is well established, however, that a material issue which has been
fairly tried by the parties may be decided by the Board regardless of whether
it has been specifically pleaded.... N.L.RB. v. Thompson Transport Co.,
Inc., 421 F.2d 154, (10th Cir. 1970). See, also American Saferty Equipment
Corporation 234 NLRB 501 (1978).
1I am convinced that Duncan did not deliberately testify to an untruth. I
can not make this same finding in respect to witness Duane Lynne Woods.
Demeanor has been considered.
and we weren't allowed to." Woods testified that he had
told Duncan and others to return to work when he had
observed them talking. Wxoods remembered that Duncan
asked him "why is it people couldn't talk about for the
Union during working hours and people was against the
union could" According to Woods, he answered. "Every-
body has got the same right."
Duncan also testified that employees wearing "no" but-
tons from outside her department conversed with employ-
ees in her department on working time two to three times a
day. These employees spoke in the Spanish language, which
was not understood by Duncan. She "assumed" they were
talking about the Union. When prounion employees were
talking, Duncan said that the foreman would tell them to
go back to work whereas, on one occasion. antiunion em-
ployees remained in the coffeeshop after the "whistle
blowed," when they should have been back at work.
The employer had posted a valid no-solicitation rule and
had posted during the election campaign:
Q. Why is it that the people or employees wearing a
vote-no button can bother and talk to other employees
while theN are working and during their job and the
ones wearing a vote-yes button can't?
A. We are unaware of this happening. All employ-
ees have a right to express their opinion either for or
against the union as long as it does not interfere with
their work or the work of others.
Since the Petitioner has not adduced evidence which by a
preponderance of the evidence establishes that nonunion
employees were in fact engaged in antiunion discussions
during working hours, Objection 3 is overruled.
Second--Issues B and C:
A. On March 20. 1978, Duncan gave an affidavit to
a Board agent in which it was stated. "the official
NLRB notices. one in the shipping department, one on
the machine shop exit leading up stairs are marked X
in the 'no' box." Duncan's testimony at the hearing
was in accord with her affidavit. Duncan reported the
defacement of the ballots to Jerry Flourno, staff rep-
resentative of the Union. prior to the election.
Flournoy brought the matter to the attention of a Board
agent. Thereafter, Personnel Manager Geary Quinn re-
ceived instructions from President John A. Johnson on the
morning of March 21. to check all notices since a Board
representative had "advised Counsel there was a possibility
that some of the election notices were defaced." According
to Quinn, he checked the notices, found three defaced, and
removed and replaced them.5 Nevertheless, the "next time"
Duncan returned to work the notices remained unchangedP
On March 22. 1978. a preelection conference was held in
President Johnson's office. Present were Joe McGee. Jerry
One notice in English according to Quinn's notes was removed, where
posted, in the "Machine Shop by the men's room" at 10:55 a.m. and two
others, one in English and the other in Spanish, were removed where posted,
in the "Metal Fah Area" at 11:00 a.m. One of the notices, observed by
Duncan. was in the machine shop toward the men's restroom.
I Quinn allegedly inspected the notices again on March 22, 1978, at 7:45
a.m. and found none defaced. On March 23, 1978. after the election. Quinn
said that he removed two notices, one in Spanish and one in English, marked
with an "X" in the "Yes" boxes.
919
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flournoy, Bruce Anderson. Johnson, Joseph R. Parker. the
Company's attorney, Geary Quinn, Bill Malone, Ed Ge-
rard, Duncan,' John Bains, and Ed Bruno. Kathy Ayres,
the Board agent conducting the election, was also present.
The question of defaced notices was raised and Quinn
produced the notices which he claimed he had removed on
March 21, 1978. They were examined by the parties and
Flournoy demanded that he be permitted to tour the plant
and inspect the posted notices for defacements. Attorney
Parker denied his request after which Flournoy requested
that the Board agent be permitted to check the notices.
Parker's response was that he "wasn't going to have a
bunch of damn people running throughout his plant."
Parker instructed Quinn to inspect the notices again. Parker
reported that all 10 notices were clean.
The notices which Quinn said that he had removed on
March 21, 1978, and displayed at the preelection confer-
ence were made a part of the evidence. A visual examina-
tion discloses that the notice allegedly taken from the ma-
chine shop has a smudge over the "no" box and the notices
allegedly taken from Metal Fab area have "X's" marked
with blue ink in the "Yes-Si" boxes. Duncan trestified cred-
ibly that these were not the notices which she had seen and
of which she had complained.8
B. From the evidence above detailed and from the rec-
ord as a whole, it is clear that the employer deliberately
permitted at least 2 defaced notices, out of 10 notices, (20
percent) to hang in the employer's plant from around noon
on March 21, 1978, until election time on March 22, 1978 (2
p.m.). (Duncan had observed the defaced notices on March
20, 1978.)
Since it is found that the Employer deliberately allowed
the defaced notices to hang after advice from the Board
agent, it must follow that the employer sought a partisan
advantage and it utilized the material appearing on the no-
tices to suggest the Board's approval of a "no" choice and
Board favoritism for a "no" vote. Unlike the cases cited by
the Employer, the Employer's misconduct comes within the
rule reaffirmed in the recent case of Silco, Inc., Atlas Divi-
sion, 231 NLRB 110 (1977). The Board said:
In Allied Electric Products, Inc., 109 NLRB 1270
(1954), the Board stated that it particularly looks with
Gerard and Duncan were employee union observers.
Duncan's credibility is strengthened in that the employer refused to allow
either the union representative or the Board's agent to inspect for defaced
ballots. Indeed, from this incident an inference may be drawn that the em-
ployer must have known that the notices seen by Duncan were still posted in
the plant and that the employer had engaged in shenanigans.
disfavor upon any attempt to misuse its process to se-
cure partisan advantage, and especially does it believe
that no participant in a Board election should be per-
mitted to suggest either directly or indirectly to the
voters that this Government agency endorses a par-
ticular choice.
See also The Borden Company, 137 NLRB 1618, 1627
(1962).
Moreover, by denying the Board agent and the Union's
representative access to the plant to view the notices for the
purpose of checking any defacements, the Employer im-
pressed upon employees that it, rather than the Board, gov-
erned certain matters related to the electoral process. Such
stance manifested by the employer was coercive in nature
and had a tendency to interfere with and restrain employees
in the exercise of their rights guaranteed by Section 7 of the
Act. In this regard, I concur with Administrative Law
Judge Barban, as stated in Gallahues Supermarkets, Inc.,
Cases -CA-10976, -CA-11153, -CA-11105, and I-
RC- 13991, JD-328-77:
I recognize the Respondent's right to control its own
property. However, it must also be recognized that by
agreeing that the representation election might be held
on its property, Respondent relinquished in part its
right to unilaterally determine who could visit its
premises and set its own conditions as to how the elec-
tion process was to be monitored. An employer obtains
certain important advantages from having the election
on its premises-among them the assurance that the
largest number of its employees will have a convenient
opportunity to vote. In return, the employer must let
the Board Agent set and control the conditions of the
election. That the Respondent did not do here. There-
fore, I find that by unilaterally setting the conditions
under which the union could attend and monitor the
election, by physically excluding Union representatives
and an eligible employee from the store prior to the
election, Respondent interfered with, restrained and
coerced its employees in the free exercise of their rights
under the Act, in violation of Section 8(a)(1) of the
Act.
This episode obviously instilled in the employees the fu-
tility of their relying on the Board or the union to protect
their rights and was an interference with the Board's pro-
cesses.
Accordingly, the election held on March 22, 1978, is va-
cated and set aside and a new election is ordered in con-
formity with the Board's practices.
920