Janler Plastic Mold Corp.

National Labor Relations Board - Board Decisions

Jan 7, 1974

208 N.L.R.B. 167 (N.L.R.B. 1974)

JANLER PLASTIC MOLD CORP 167
Janler Plastic Mold Corporation and Pattern, Mold
and Model Makers ' Association of Chicago and
Vicinity, affiliated with the Pattern Makers'
League of North America, AFL-CIO.' Case
13-CA-9933
January 7, 1974
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 10, 1970, Pattern, Mold and Model
Makers' Association of Chicago and Vicinity , affili-
ated with the Pattern Makers' League of North
America, AFL-CIO, was certified as the exclusive
representative of Respondent's toolroom employees,
following an election held pursuant to a Decision
and Direction of Election and the subsequent
resolution of Respondent's objections, which were
overruled.2 Thereafter on June 15, 1971, the National
Labor Relations Board issued its Decision and Order
in the instant case,3 finding that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
bargain with the certified Union. The Board,
accordingly, ordered the Respondent, upon request,
to bargain collectively with the Union. Respondent
refused to comply with this Order, contending that
the Board's certification of the Union was invalid.
Thereafter, the Board applied for enforcement of
its Order with the United States Court of Appeals for
the Seventh Circuit, and, on November 30, 1972, that
court issued a decision denying enforcement of the
Board's Order. In the court's opinion, Respondent's
objections and supporting affidavits raised material
and substantial issues of fact with respect to four
areas. The court remanded the case to the Board for
further proceedings.
On February 26, 1973, the Board issued an order
reopening the record and remanding the proceeding
to the Regional Director for hearing before an
Administrative Law Judge for the purposes of taking
evidence in accordance with the court's remand of
November 30, 1972, and to prepare and serve on the
parties a supplemental decision containing findings
of fact based upon the evidence received, conclusions
of law, and recommendations. Pursuant to such
order, the Regional Director issued a Notice of
Reopened Hearing on March 12, 1973, and a hearing
was held on April 18, 1973, in Chicago, Illinois,
before Administrative Law Judge Henry L. Jalette.
On June 15, 1973, the Administrative Law Judge
issued the attached Supplemental Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief. The Charging Party
relies on his previously stated positions in answer to
the exceptions and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended Order
as modified herein.
In agreeing that the underlying election in this
proceeding should not be set aside we do not rely on
the early timing, with respect to the election, of the
alleged job loss threat to Weisfeld. If made, it was by
a stranger, and is thus not attributable to the Union.
Nor do we adopt that part of the Administrative Law
Judge's Decision dealing with "The alleged threats to
Gaspero" which concerns the expressed fears of
fellow employees that they would lose their jobs if
the Union did not come in. Assuming another
employee voted for the Union in an attempt to save
employee jobs. we view that sort of appeal by
prounion. employees as typical campaign propagan-
da.`'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby overrules the objections to conduct affecting
the results of the election; affirms the certification of
Pattern, Mold and Model Makers' Association of
Chicago and Vicinity, affiliated with the Pattern
Makers' League of North America, AFL-CIO, as the
representative of the employees in the appropriate
unit; and orders that Respondent, Janler Plastic
Mold Corporation, Chicago , Illinois , its officers,
agents, successors, and assigns, shall take the action
set forth in the Order previously issued herein on
June 15, 1971, at 191 NLRB 162.
The Charging Party's name is corrected herein.
2 186 NLRB 540.
3 191 NLRB 162
4 Chairman Miller would find the disavowals of this paragraph
unnecessary and would adopt, in two, the rationale of the Administrative
Law Judge.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HENRY L. JALETrE, Administrative Law Judge: On April
3. 1970, a secret ballot election was held among employees
of Respondent in an appropriate unit in which 41 ballots
were cast, of which 21 were for , and 20 against , the above-
208 NLRB No. 37
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named Union. Thereafter, the Respondent filed timely
objections to conduct affecting the results of the election.
After an investigation the Regional Director issued and
caused to be served on the parties a report on objections on
May 25, 1970, in which he recommended that Respon-
dent's objections be overruled in their entirety and that the
Union be certified. On June 18, 1970, Respondent filed
exceptions to the Regional Director's report, to his
recommendation that its six objections be overruled in
their entirety and to his failure to direct a hearing on its
objections. On November 10, 1970, the Board, with
Chairman Miller dissenting, issued its Decision finding no
merit in the exceptions, overruling the objections in their
entirety, and certifying the Union.'
Thereafter, Respondent refused to bargain with the
certified Union, and on June 26, 1970, the charge in the
instant case was filed. The charge was amended on
January 14, 1971, and pursuant thereto complaint was
issued on February 3, 1971, and was amended on February
11, 1971. The complaint, as amended, alleged that
Respondent had refused to bargain with the certified
Union in violation of Section 8(a)(1) and (5) of the Act.
Respondent duly filed its answer, admitting, in effect, its
refusal to bargain, but defending such refusal on the
ground the certification of the Union was invalid by reason
of the conduct complained of in Respondent's objections.
On March 19, 1971, counsel for the General Counsel
filed directly with the Board a motion for summary
judgment. On June 15, 1971, the Board, Chairman Miller
again dissenting, granted General Counsel's motion for
summary judgment and issued its decision and order
finding that Respondent had violated Sections 8(a)(5) and
(1) and 2(6) and (7) of the Act by its refusal to recognize
and bargain with the certified Union. The Board found
that an evidentiary hearing was not required because there
were no substantial and material issues of fact to be
determined 2
Thereafter, the Board applied for enforcement of its
order with the United States Court of Appeals for the
Seventh Circuit, and on November 30, 1972, that court
issued a decision denying enforcement of the Board's
order. In the court's opinion, Respondent's objections and
supporting affidavits raised material and substantial issues
of fact with respect to four areas. The court remanded the
case to the Board for further proceedings.
On February 26, 1973, the Board issued an order
reopening the record and remanding the proceeding to the
Regional Director for hearing before an Administrative
Law Judge for the purpose of taking evidence in accord-
ance with the court's remand of November 30, 1972, and to
prepare and serve upon the parties a supplemental decision
containing findings of fact based upon the evidence
received, conclusions of law, and recommendations.
I The Board's Decision is reported at 186 NLRB 540
2 The Board's Decision is reported at 191 NLRB 162
3 The election in this case was held on April 3, 1970, and the hearing on
objections just slightly more than 3 years later Respondent contends that it
was entitled to a hearing at a time when events were fresher in the minds of
the witnesses, and that a hearing 3 years after the events afforded it "less
than fairness standards require and any decision based on testimony of
what occurred three years ago would be, per force, fraught with uncertain-
ty " In these circumstances, Respondent asserts that I should dismiss the
Section 8(a)(5) and (1) charge and deny certification of the Union
Pursuant to such order, the Regional Director issued a
notice of reopened hearing on March 12, 1973, and hearing
was held on April 18, 1973, in Chicago, Illinois.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by
Respondent and the Union, I make the following findings
of fact, conclusions of law, and recommendations.3
FINDINGS OF FACT
The Objections
Respondent filed six objections to conduct affecting the
results of the election. The sixth objection did not allege
any acts of misconduct and was merely a conclusory
objection that the totality of the Union's conduct created
an atmosphere of fear, confusion and doubt which
interfered with the exercise of a free choice by the
employees. The sixth objection, therefore, did not come
into play insofar as the matters to be heard at the hearing
was concerned . It is before me only in the sense that I must
evaluate the totality of the conduct which I find to have
occurred in determining whether the election should be set
aside.
As to the other five objections, they need not be
reiterated here. In concluding that Respondent's objections
and supporting evidence raised material and substantial
issues of fact, the court found such to be the case only
"with respect to four areas." When the Acting Regional
Director issued notice of reopened hearing, he specified the
matters to be heard as follows:
1. The allegations that there were union misrepresenta-
tions about fringe benefits with respect to which the
Employer did not have sufficient time to reply, particular-
ly, that on the day of the election , employee Wally Dinkel
stated to another employee that if the Union won, it would
obtain for the employees $120 per week sickness benefits,
noncontributory hospitalization insurance , and shop insur-
ance for tools.
2. The allegation that employee Dinkel indicated to a
fellow employee that, if the Union did not win, the
Employer would discontinue mold repair work, and that
other employees were allegedly told by Union spokesmen
that they would lose their jobs if they did not vote for the
Union.
3. The allegation that employees were told by a union
agent that apprentices might lose their company-obtained
draft deferments if they did not support the Union.
4. The allegation that employee Fred Kovacs, who
worked at a machine 10-15 feet from the polls, kept a
running tally during the voting on how he thought the
employees cast their ballots; and that, as the last employee
Respondent's request is rejected On January 5, 1973, the Board advised the
parties that it had decided to accept the court' s remand and that they could
submit a statement of position in light of the remand and the issues raised
thereby Respondent filed a statement of position requesting that the Board
dismiss the case or order a new election In its order reopening record and
directing the instant hearing, the Board, in effect , denied Respondent's
request for a dismissal when it directed a hearing I am bound by that order
which directs that I make findings of fact, conclusions of law, and
recommendations
JANLER PLASTIC MOLD CORP
voted, he stated to other employees, "This is the one-this
is the last vote that will decide it."
Respondent did not object to the scope of the matters set
for hearing. Accordingly, and on the basis of the court's
opinion, I deem the matters to be considered herein to be
only those specified in the notice of reopened hearing.
Alleged Union Misrepresentations About Fringe
Benefits
The allegation under this heading is that there were
union misrepresentations that if the Union won, it would
obtain for the employees $120 per week sickness benefits,
noncontributory hospitalization insurance, and shop insur-
ance on tools. No evidence was presented relative to
misrepresentations about noncontributory hospitalization
insurance as a separate item. Rather, the testimony
focussed on the subjects of $120 per week sickness benefits
and tool insurance. As to both subjects, the only witness
presented by Respondent in support of its objection was
Anthony Gaspero, a former employee and eligible voter.
The $120-Per-Week Sickness Benefits
Gaspero testified that employee Wally Dinkel told him
on the day of, or the day before, the election that if the
Union should get in and if he was sick and hospitalized, he
would receive $120 per week and his total hospital bill
would be paid except for his telephone service.
Respondent contends that this statement by Dinkel
constitutes a material misrepresentation which warrants
setting aside the election. This contention requires consid-
eration of several questions. Preliminarily, there is the
question of the precise matter as to which there was
misrepresentation and the answer to that is Dinkel's
asserted use of a sickness benefit figure of $120 per week.
The second question is whether Dinkel did represent to
Gaspero that if the Union won employees would receive
$120 per week in sickness benefits. Dinkel did not deny
having the conversation described by Gaspero, nor did he
deny making a representation of $120 per week in sickness
benefits. He merely stated that he had no recollection.
Under the circumstances, I credit Gaspero's testimony that
he had a conversation with Dinkel in which the subject
matter of medical insurance benefits was discussed on the
day of, or a day before, the election, but despite the
absence of an express denial by Dinkel I cannot credit
Gaspero's testimony that Dinkel used the $120 per week
figure because Gaspero was a thoroughly unreliable
witness and the circumstances argue against Dinkel's use
of such a figure. 'hus, John Damas, the Union' s assistant
business agent who was in charge of the organizational
campaign, testified that union contracts with other pattern
shops provide for $100 per week in sickness pay. This
testimony was uncontradicted. According to Damas'
credited testimony this was the figure which he quoted at
union meetings .4 In light of this it is difficult to understand
why Dinkel would have magnified that figure by $20 per
week to induce Gaspero to vote for the Union. To an
4 In his prehearing statement to the Board on May 16. 1970. Gaspero
stated that Damas quoted a $120-per-week figure at a union meeting. but he
did not adhere to that statement at the hearing.
169
employee receiving nothing in sickness benefits, $100 per
week should be sufficient inducement.
Inasmuch as I conclude that Dinkel did not misrepresent
the amount of sickness benefits employees would receive if
the Union won the election, discussion of this objection
could end here. However, there are several aspects of this
objection which warrant discussion if one is to understand
fully the nature of the case generally. For example, there is
my characterization of Gaspero as a thoroughly unreliable
witness. This is well demonstrated in other parts of this
decision, but as to this very objection Gaspero demonstrat-
ed his unreliability. One of the elements of this objection is
the timing of Dinkel's statement to Gaspero. According to
Gaspero, prior to the day of the election, he had not heard
the $120 figure. As he put the matter on cross-examination,
on the day of the election "I was hit with $120." Yet, in his
April 8, 1970, prehearing statement given to Respondent's
attorneys, Gaspero had stated that Dinkel's promises to
him on the day of the election were new "except for the
sick benefit," a clear reference to the $120-per-week
sickness benefits which he had described immediately
above that phrase. As pointed out above, in his prehearmg
statement to a Board agent on May 16, 1970, Gaspero had
stated that at a union meeting 1 month before the election
Damas had used the $120-per-week figure. In light of such
contradictory statements , Gaspero's testimony before me
that the $120 figure was new and for that reason highly
material where he was concerned can hardly be given any
credence.
The other element of this objection that needs discussion
is Dinkel's status as an "in-plant organizer." The label "in-
plant organizer" which was attached to Dinkel was
attached to him by Respondent in the prehearing state-
ment it obtained from Gaspero. Nothing in that prehearing
statement supported the use of such a label. The record
before me indicates that there was no basis for its use.
Dinkel held no union office and served on no committee,
organizing or otherwise, nor did he hold himself out to be
an organizer. He was not even shown to have been the one
to initiate the organizing campaign, nor to have been a
prime mover in the campaign. He was solely and simply a
fellow employee of Gaspero's who was a strong and vocal
union supporter. I do not understand that fact alone
sufficient to make him an "in-plant organizer"; if suffi-
cient, I do not understand what legal consequences flow
therefrom.
In the final analysis Dinkel's statement does not
represent an issue of misrepresentation in the sense
appearing in Hollywood Ceramics Company, Inc.,5 and
Zarn, Inc.6 To the contrary, even crediting Gaspero's
testimony, all that appears is that Dinkel promised
Gaspero that he would receive better medical benefits if
the Union won the election. He did not tell Gaspero such
benefits existed at other plants where the Union represent-
ed employees, he merely told Gaspero of the kind and
extent of benefits employees could get with the Union to
represent them.
At the hearing, much was made as to whether Dinkel
140 NLRB 221.
6 170 NLRB 1135
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed Gaspero he would get such benefits or merely
promised they would negotiate for them. Gaspero would
not say that Dinkel said, in haec verba, that such benefits
were guaranteed, but he testified he understood they were
guaranteed. I reject Gaspero's assertions about his under-
standing and I conclude that the statements attributed to
Dinkel by Gaspero did not warrant setting the election
aside. "Prattle rather than precision is the dominating
characteristic of election publicity." Olson Rug Company v.
N.L.R.B., 260 F.2d 255, 257 (C.A. 7, 1958), and what
Dinkel said to Gaspero was prattle. As the Seventh Circuit
has noted, ". . . the employees probably knew that a
contract had to be negotiated before any benefits could be
obtained, even if the Union won the election." N.L.R.B. v.
Red Bird Foods, Inc., d/b/a Red Bird Foods-IGA, 399 F.2d
600, 602 (1968). The statements described by Gaspero are
clearly the stuff out of which all election campaigns are
fashioned, and, in my judgment, Gaspero must have
known them to be so. For all the foregoing reasons, I find
that there were no misrepresentations on the subject of
sickness benefits, and that the statements in regard thereto
constituted campaign propaganda which employees were
in a position to evaluate.
Tool Insurance
In the same conversation in which Dinkel told Gaspero
about sickness benefits he told him about shop insurance
for tools. Whether or not Respondent is now contending
that Dinkel's remarks in that connection constituted
misrepresentations and were a basis for setting aside the
election is not clear as Respondent's brief makes no
mention of the subject. In any event, Dinkel's remarks
about tool insurance as described by Gaspero afford no
basis for setting aside the election. There is no showing that
Dinkel was guilty of any misrepresentation. He did not tell
Gaspero that tool insurance was provided to employees
under contracts with the Union with other employers, but
only told him that he would get tool insurance if the Union
got in.7 As with the sickness benefit subject, all that is
presented by such statements is a matter of campaign
propaganda which employees are capable of evaluating.
Accordingly, to the extent that Respondent's objection to
conduct affecting the results of the election is predicated
upon Dinkel's reference to tool insurance, I shall recom-
mend that it be overruled.
Alleged Threats of Loss of Jobs
The allegations under this heading are that employee
Wally Dinkel indicated to a fellow employee that if the
Union did not win the Employer would discontinue mold
repair work, and that other employees were told by union
spokesmen they would lose their jobs if they did not vote
for the Union. Respondent called two employees in
support of these allegations: Gaspero and Leonard
Weisfeld.
The Alleged Threats to Weisfeld
Leonard Weisfeld's testimony may be disposed of very
quickly. On direct examination, all that he testified to was
an incident on February 20 when a stranger approached
him as he arrived at the plant and said, "If you don't join
the union you won't have a job when the union gets in,
you'll lose the job when the union gets in if you don't vote
for the union." The man did not introduce himself or say
anything else. Weisfeld did not know him and testified at
first that he had neither seen the man before, nor since.
Weisfeld's description of the February 20 incident is so
bizarre that it is difficult to give any credence to it. Why
any one would approach him in the manner described,
with no salutation or introduction, and threaten him with
loss of his job was never explained. He was not shown to
be opposed to the Union or to have resisted noncoercive
solicitation. While the casebooks reveal that threats of loss
of employment by union organizers are not uncommon
during organizational campaigns, it is not my understand-
ing that such threats are a primary organizational tool or
that they are used in the indiscriminate fashion described
by Weisfeld. But if the inherent implausibility of Weisfeld's
testimony on direct caused me to doubt his reliability as a
witness, my doubts turned to conviction when he was
cross-examined with regard to his preheanng statement.
His testimony in that regard is totally incomprehensible
and cannot be reconciled into a coherent statement.
One thing is clear ; there are significant discrepancies
between his testimony at the hearing and the prehearing
statement procured by Respondent's attorney in support of
its objections (Exhibit I-C of Respondent's exceptions to
the Regional Director's report on objections). In that
prehearing statement , Weisfeld had described incidents in
February and March involving an "outside union organiz-
er." In its opinion remanding this case to the Board for
further proceedings, the court alluded specifically to this
prehearing statement and its reference to an "outside union
organizer." As Weisfeld's testimony clearly shows, there
was no basis whatsoever for his prehearing statement that
an "outside union organizer" told him he would lose his
job if he didn't join the Union. To the contrary, he was told
that by a complete stranger and his reference to the
stranger as an outside union organizer was a purely
gratuitous characterization.
In addition, the incidents described by Weisfeld in his
prehearing statement assertedly occurred when "other
employees were around." In his testimony at the hearing,
Weisfeld did not repeat that assertion, and his description
of what happened on February 20 does not suggest the
presence of other employees. On direct, he was not asked
about, nor did he testify to, any incident in March.
When all the foregoing circumstances are considered, it
is evident that no credence can be given to Weisfeld's
testimony. Even where I to give credit to Weisfeld's direct
testimony, however, I would deem the incident as he
described it insufficient to warrant setting aside the
election. Weisfeld had no reason to believe either that the
Union was responsible for this threat, or that it would or
T The record indicates that union members obtain tool insurance
through the Union. It is not an item negotiated in collective-bargaining
agreements
JANLER PLASTIC MOLD CORP.
could implement it. Given the additional fact that the
incident occurred several weeks before the election, the
likelihood of its having interfered with the election is at
best speculative and is insufficient basis to warrant setting
the election aside.
The Alleged Threats to Gaspero
There are two varieties of alleged threats to Gaspero.
The first relates to mold repair work.
Gaspero was an apprentice moldmaker doing meld
repair work. The room in which he worked was a large
room containing 60 moldmaking machines. He testified
that on the day of, or the day before, the election,
employee Wally Dinkel told him, in effect, that if the
Union made it in Janler, he would have hisjob-but that if
the Union lost, the large shop workroom would be
converted over to press work. Gaspero understood this to
mean there would be no mold repair work for him to do.
Gaspero testified that Dinkel also told him that if the
Union did not make it in the shop, all the repair work
would be sent out and there would be no need for
repairmen.
The second variety of statements which are alleged to be
threats of loss of jobs consists of statements by Dinkel on
unspecified dates that employees Rosdahl and Jorge would
be fired by the Company if the Union did not get in.
Gaspero testified that Rosdahl also told him on the day of,
or the day before, the election that if the Union didn't
make it, he (Rosdahl) would lose his job and he had a wife
and child to support. Another toolmaker, Jorge Basso, also
told Gaspero that he, Basso, would get fired. Basso also
told Gaspero there was not enough work, everything was
going to Tucson, and that he should vote for the Union for
protection. According to Gaspero, Basso repeatedly asked
him if he had been notified he was fired.
Respondent contends that the statements to Gaspero
were threats of loss of job which interfered with the
employees' freedom of choice in the election. In my
judgment, "Discussion of this matter in the rubrics of
threats not within the Union's power to carry out [is]
inappropriate." N.L.R.B. v. A. G. Pollard Company, 393
F.2d 239 (C.A. 1, 1968). As is readily apparent from a
review of the statements attributed to Dinkel, Basso, and
Rosdahl by Gaspero, nothing contained therein related to
actions to be taken by the Union to affect the job tenure of
Gaspero. For this reason G. H Hess, Incorporated, 82
NLRB 463; Caroline Poultry Farms Inc, 104 NLRB 255,
and Vickers Incorporated, a Division of the Sperry Rand
Corporation, 152 NLRB 793, the three cases cited by
Respondent in support of its position, are inapposite. All
three cases dealt with some form or other of threats of
union actions which employees could reasonably believe
might result in their loss of employment, whereas here the
statements in question relate to the intentions of the
employer. As the court stated with regard to somewhat
similar statements in A. G. Pollard, supra, the question is
8 It appears that Dinkel's prognostications were not made up out of
whole cloth Respondent has a plant in Tucson and Vice President Klmgler
testified that Respondent had been sending equipment and machinery to
Tucson.
9 Vice President Klingler testified that Respondent ran a campaign
171
. . simply whether there was a substantially inaccurate
statement as to the existence of a material circumstance
likely to influence the employees' voting and hence
affecting their freedom of choice; in other words, whether
there was a substantial and material misrepresentation
likely to be believed."
I conclude that the statements of Dinkel, Rosdahl, and
Basso did not constitute substantial and material misrepre-
sentations sufficient to warrant setting aside the election.
On their face, the statements of Rosdahl and Basso about
the probable loss of theirjobs if the Union lost the election
were not misrepresentations. They did not purport to
report the existence of any condition or circumstance
relating to job tenure generally, or even relating to their
own job tenure. Rather, their statements were reflections of
their belief that they would be discharged if the Union lost
the election. As such, they were a form of appeal for
Gaspero's support. They certainly had nothing to do with
the job tenure of Gaspero who was not a union supporter,
and as Rosdahl and Basso were not shown to be friends of
Gaspero there is no reason to believe that their expressed
fears of discharge would move Gaspero to vote for the
Union in order to save theirjobs.
The statements attributed to Dinkel and Basso regarding
the discontinuance of mold repair work might be termed
misrepresentations if they are construed as representations
by them to Gaspero that Respondent had decided to
discontinue mold repair work and to move it to Tucson or
to farm it out. But neither Dinkel nor Basso represented
that Respondent had made such a decision. Their
statements related solely to their beliefs about Respon-
dent's future intentions and neither Dinkel nor Basso
offered any reasons to Gaspero for their assertions about
Respondent's plans.8 As fellow rank-and-file employees
they were in no better position than Gaspero to know
Respondent's plans. Even if one accepts Gaspero's self-
created status of Dinkel as an in-plant organizer, there
would be no greater reason for Gaspero to suppose that
Dinkel had access to Respondent's inner councils . Gaspero
asserted, in effect, that he believed the statements of
Dinkel and Basso. But the test is not whether he believed
them; rather, the test is whether under the circumstances
he could reasonably have relied on their assertions. Under
the circumstances outlined, he could not. Nor, in my
judgment, despite his protestations to the contrary, did
Gaspero in fact believe Dinkel and Basso. Significantly, he
never asked anyone in management about the matter. Had
he really believed they knew what they were talking about,
it appears to me he would have inquired about it.9
Alleged Threats of Loss of Draft Deferments
The issue presented respecting draft deferments is
whether or not the Union's agent suggested that appren-
tices might lose their company-obtained draft deferments if
they did not support the Union. In Gaspero's preheating
statement to Respondent's attorneys, Gaspero had stated
before the election and held two or three meetings of employees He did not
specify exactly when these were held, but experience teaches that such
meetings are normally held in the period shortly before the date of the
election Klingler testified the meetings were open to questions and none
was asked.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at a union meeting, Union Agent John Damas said he
felt sorry for the apprentices. "He said that since the
Company had gotten draft deferments for apprentices,
they would not give them wage increases. He said that the
Company would give one or the other. I understood that to
mean that I might lose my draft deferment if I didn't
support the Union."
In its opinion, the court adverted to this statement and
said ". . . such a statement by the Union' s assistant
business manager might easily have influenced employee
votes and should have been explored through a hearing"
At the hearing, Gaspero was the only employee witness
called by Respondent on this issue . Gaspero remembered
Damas saying that he felt sorry for the apprentices, but he
could not recall anything else said by Damas about draft
deferments. He admitted, however, that Damas had not
said that apprentices would lose their draft deferments if
they did not vote the Union in. On the basis of Gaspero's
testimony at the hearing, there is no basis for a finding that
the Union's business agent, or anyone else, had threatened
that apprentices would lose their draft deferments if they
did not support the Union.
Moreover, the fact that Gaspero did not support
Respondent's position that the union business agent had
threatened apprentices with the loss of draft deferments if
they did not support the Union is not attributable to his
loss of memory due to the passage of time. Even when the
events were fresh in Gaspero's mind, he did not accuse
Damas of threatening employees with loss of draft
deferments if they did not support the Union. He had said,
on May 16, 1970, in an affidavit taken by a Board agent
during the investigation of the objections, that "Damas did
not threaten us that we would lose our draft deferments,
however."
Despite the foregoing, it might be grounds for setting
aside the election if the union agent had referred to draft
deferments in such a way that employees understood him
to mean that if they did not vote for the Union they would
lose their draft deferments. In his April 8, 1970, statement,
taken by Respondent's attorney, this was precisely the
understanding that Gaspero said he had. But this was
clearly art untrue statement because Gaspero testified at
the hearing that he did not have a deferment and that he
did not need one! Thus, it now appears that this issue of
threats of loss of draft deferments had its genesis in a false
statement in a statement procured from an employee by
Respondent's attorney.
On the basis of the foregoing, it is evident that the draft
deferment issue was wholly distorted. What emerges from
the record is that apprentice employees believed that it was
Respondent's practice to trade on the value of draft
deferments as a reason for withholding wage increases.
Respondent's vice president denied Respondent had any
such policy. On this record, I am not prepared to find that
it did or did not. Employees apparently believed there was
such a practice, and there is no evidence that the Union
was responsible for the existence of such a belief. All that
appears from the record is that the draft deferment issue
was discusses among employees in conjunction with
increased wages and in terms of what the Union could do
for them. Such discussions were within the ambit of
campaign propaganda which employees were in a position
to evaluate.
For the foregoing reasons, I shall recommend that
Respondent's objection to conduct affecting the results of
the election as it relates to this issue be overruled.
The Kovacs Tally of Ballots
The election of April 3, 1970, was held during working
hours between 4.30 and 5:30 p. m. in a loading dock area
which forms part of Respondent's shipping room. Employ-
ees were free to leave their work at any time during the
scheduled voting period for the purpose of voting. As the
election was in process, apprentice mold maker Fred
Kovacs was working at a surface grinder in a room
adjacent to the voting area. There was a large door opening
into that area and from the surface grinder Kovacs could
see the voting. As each employee voted Kovacs made a
tally of his evaluation how each employee had voted on a
small piece of paper in the following fashion: 1111. After
all the employees had voted except Kovacs, Kovacs made
the remark "This vote will decide it" and he proceeded to
the election table, procured a ballot and voted. The official
tally of ballots shows that 21 votes were cast for union
representation and 20 against.
Respondent, under the heading "Electioneering," con-
tends that on the basis of Kovacs' conduct the election
should be set aside, citing in support of its position Belk's
Department Store of Savannah, Ga., Inc., 98 NLRB 280;
and International Stamping Co., Inc., 97 NLRB 921. But
neither of those two cases dealt with electioneering; rather,
both involved the application of Board policy which
prohibits anyone from keeping any list of persons who
have voted, aside from the official eligibility list used to
check off voters as they receive their ballots. This policy
was adopted in the interest of free elections and does not
depend on a showing that there was actual interference
with the free choice of the employees voting in the election,
International Stamping, supra, although the policy does
require a showing that the employees knew that their
names were being recorded. Piggly-Wiggly #011 and
#228 Eagle Food Centers, Inc., 168 NLRB 792. The issue
presented, then, is not whether Kovacs engaged in
electioneering as such (there is no evidence he did) but
whether his conduct falls within the policy enunciated in
the cited cases.
When the Regional Director overruled Respondent's
objection based on Kovacs' tally, he pointed out that the
tally did not consist of a list of the names of voters, but he
did not hold that the tally did not come within the policy
enunciated in the cited cases by reason of that fact alone.
He added ". . . there is no evidence that those persons
voting were in any way aware of what he was doing."
Accordingly, he concluded that Kovacs' action in keeping
the tally was not coercive and did not destroy the
laboratory conditions necessary for a Board election. As
the record indicates , the Board affirmed him without
comment on his disposition of this issue.
The court disagreed with the Regional Director's
conclusion that there was no evidence that employees
voting were aware of what Kovacs was doing and
remanded the issue to the Board for further proceedings. It
JANLER PLASTIC MOLD CORP. 173
would appear therefore, that the court could see no factual
distinction between Kovacs' tally and an unauthorized list
of eligible voters, and that it was of the view that upon a
showing of awareness among employees that he was
keeping such a tally the election should be set aside.
Accepting this view as the law of the case, I have analyzed
the record to determine what evidence there is that
employees were aware of what Kovacs was doing.
The record in that regard is far from satisfactory. The
mair, source of dissatisfaction with the record stems from
the fact that a determination as to what occurred depends
entirely on Gaspero, a thoroughly unreliable witness,
careless in his answers and defensive of them when
pressed. Kovacs, the one responsible for this issue ever
arising, was a more reliable witness, yet he was not entirely
candid, particularly, in describing his movements and
contacts with other employees during the election.
I have already described how Kovacs was at his machine
during the voting, that he could see the voting area, and
that he was keeping a tally of the voting. This is
undisputed. It is also undisputed that he left his machine
during the voting. According to Gaspero, Kovacs was "all
over," he was 15 feet away from the voting booth, he would
walk around Wally Dinkel's table, or he would sit at the
bench of one of the moldmakers named Joe, drawing or
writing on a piece of paper. As he walked around, he
allegedly talked to other employees that had either voted or
were waiting to vote. After all the other employees had
voted, Kovacs, waving a paper, got up from where he had
been sitting at Joe's table, and said loudly "this is the
ballot, this is the last one, I'm going to make the decision."
He walked to the voting booth and entered it.
Kovacs denied that he was "all over" or running around
during the voting period. According to him, he was at his
machine during the voting and he was keeping a tally of
the votes based on his evaluation of the employees'
sentiments. This tally was on a small piece of paper on his
machine. Some of the employees going to vote passed by
his machine, but 6 feet away. After about 30 employees
had voted, he walked over to the other side (apparently the
mold making area which is near the area where the voting
was taking place) and he spoke to employees who were
gathered there and told them what his count was. He could
not remember whether it was 15 for and 15 against at the
time, or 20 and 10. Kovacs admitted that before voting he
"made a comment like, my vote will decide, I think
something like that." He could not recall waving a piece of
paper.
There are several discrepancies between Gaspero's
version of Kovacs' actions and Kovacs' version. Upon
analysis, however, they are not critical to decision. Thus, it
is clear that Kovacs was not "all over" or "running
around," exaggerations typical of Gaspero's testimony, but
Kovacs was, as he admitted, away from his machine before
the voting ended and he did talk to employees. However,
there is no evidence that he spoke to any employee who
had not voted.
Gaspero's own testimony indicates that he first became
aware of Kovacs when Gaspero was in line waiting to get
his ballot. At the time he saw Kovacs about 20 feet away at
Joe's table, drawing or writing. Gaspero did not know what
Kovacs was doing. He voted and then congregated near
Dinkel's bench with other employees who had voted and it
was from there that he heard Kovacs announce he would
be casting the deciding vote. It is evident both from
Gaspero's description of events and Kovacs' that after
employees voted they congregated at a point about 20 feet
from the voting area, and it was these employees who
Kovacs spoke to. Gaspero had no way of knowing who
had or had not voted, and his testimony that he saw
Kovacs "[w]alking around, talking to the other employees
that had been either voting or waiting to vote" is simply
not supported by the record and was another gratuitous
observation of his that is not worthy of credence and which
I reject. As to the conversation admitted by Kovacs, he
testified they were with employees who had voted, and I
credit him. It is significant that Respondent presented no
employees who were aware of the tally before they voted.
The only witness, Gaspero, knew only that Kovacs was
writing or drawing on a piece of paper and he testified he
did not know what Kovacs was doing and Kovacs'
behavior did not influence his vote.
On the basis of the record herein, I conclude that there is
no showing that employees who had not voted were aware
that Kovacs was keeping a tally of the votes. As to Kovacs'
statement that he would cast the deciding ballot, it could
not have affected the election results because it was uttered
after all other ballots had been cast.10 (Kovacs testified he
was "one of the last" to vote, but it is clear from Gaspero's
testimony and the statement itself that Kovacs was the last.
Respondent does not contend otherwise.)
On the basis of the foregoing, I conclude that Kovacs'
conduct did not warrant setting aside the election and I
shall recommend that the objection relating to such
conduct be overruled.
Summary
In remanding this case for further proceedings, the court
indicated that the combined effect of all the objectionable
acts should be considered in deciding whether there had
been interference with the right of employees to express a
free choice in selecting a bargaining representative. As the
conclusions reached above indicate, there is nothing to
combine. In its brief, in arguing against a strict application
of agency principles as a necessary predicate for setting
aside the election, Respondent asserts that ". . . the mere
fact of an atmosphere of fear and coercion created by
statements of union supporters will be enough to invalidate
an election." Granted such is the test, Respondent has
failed to show the existence of an atmosphere of fear and
coercion in this case. Out of 41 employees who cast valid
ballots, including 20 against union representation, Respon-
dent could only produce 2 and relied principally on one,
Gaspero, who has been shown to be thoroughly unreliable.
In short, Respondent has failed to meet its burden that
there existed an atmosphere of fear and coercion.
10 See Wald Sound, Inc, 203 NLRB No 61, fn I
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The record does not support a finding of objectiona-
ble conduct affecting the results of the election as specified
by Respondent in its objections to conduct affecting the
results of the election in Case 13-RC-12101.
2. The Union was entitled to certification as exclusive
representative of Respondent's employees in an appropri-
ate unit.
On the basis of the foregoing findings of fact and
conclusions of law, and on the entire record before me, I
recommend issuance of the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Relations
Board hereby overrules the objections to conduct affecting
the results of the election; affirms the certification of
Pattern, Mold & Model's Association of Chicago and
Vicinity affiliated with the Pattern Makers League of
North America, AFL-CIO, as the representative of the
employees in the appropriate unit ; and orders that
Respondent, Janler Plastic Mold Corporation, take the
action set forth in the Order previously issued herein on
June 15, 1971, at 191 NLRB 162.