Marathon LeTourneau Co.

National Labor Relations Board - Board Decisions

Jan 8, 1974

208 N.L.R.B. 213 (N.L.R.B. 1974)

MARATHON LE TOURNEAU CO.
Marathon LeTourneau Company, Gulf Marine Divi-
sion of Marathon Manufacturing Company and
United Steelworkers of America, AFL-CIO. Cases
23-CA--4634 and 23-RC-3875
January 8, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On June 27, 1973. Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a 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 Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We do not agree with our colleague that the
statements by Hilder, Silva, White , and Wright to the
effect that if the Union 's demands were too high and
the Company couldn't afford the demands the
Company would become noncompetitive and would
close the operation are legitimate expressions of
views. Instead , for the reasons enunciated by the
Administrative Law Judge , we find that these
statements were thinly veiled threats of plant closure
if the Union won the election , and thus were
violative of Section 8(a)(1) of the Act.
Although an employer may lawfully predict the
precise effects he believes unionization will have on
his company, the prediction must be carefully
phrased on the basis of objective facts to convey an
employer's belief as to demonstrably probable
consequences beyond his control.2
We can perceive of no factual basis for Respon-
dent's prediction of possible plant closure. By its
conduct of constantly referring to closings in other
plants which had become unionized, and by its
posting of the El Puerto editorial . Respondent
created an atmosphere of fear of plant closure should
the Union be victorious. In this context , we find that
Hilder, Silva , White, and Wright conveyed the clear
implication that Respondent would close the plant if
the Union won the election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
213
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Marathon LeTour-
neau Company, Gulf Marine Dvision of Marathon
Manufacturing Company, Brownsville, Texas, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The Administrative Law Judge dismissed certain allegations contained
in the complaint , as well as Objection 4 In the absence of exceptions
thereto, we adopt these findings pro forma
Chairman Miller concurs in the result but would not base any 8(a)(1)
finding or his decision to set aside the election on the statements by
President Hilder and Supervisors Silva, White , and Wright to the effect that
if the Union 's demands were too high and the Company couldn't afford to
meet those demands, the Company would become noncompetitive and
would close the operation While other unlawful threats were made herein,
they do not, in the Chairman 's opinion , transform legitimate expressions of
views into violations of the Act
With respect to Objection 9 concerning the raffle, in accordance with the
reasons stated by him in his dissent in Electro-Voice, Inc. 191 NLRB 425,
Chairman Miller would find the raffle alone to he sufficient ground for
setting aside the election
2 IA.LR B. v Gzssel Packing Co, Inc, 395 U.S 575, 618 (1969)
DECISION
STATEMENT OF THE CASE
BERNARD NESS . Administrative Law Judge : This pro-
ceeding under Section 10(b) and Section 9 of the National
Labor Relations Act, as amended, was tried pursuant to
due notice on April 10 through 13, 1973, at Brownsville,
Texas. The original charge and first amended charge were
filed on January 8 and March 6, 1973, respectively, by
United Steelworkers of America , AFL-CIO, herein called
the Union.' The complaint , alleging a series of 8(a)(1)
violations , was issued on March 7, 1973.
The petition in Case 23-RC-3875 was filed by the Union
on November 1, 1972.2 A Stipulation for Certification
Upon Consent Election was approved by the Regional
Director for Region 23 on November 22. A Board-
supervised election by secret ballot was held on January 3,
1973, among the employees in the approved stipulated
appropriate bargaining unit . Of approximately 1,600
eligible voters, 1,347 cast ballots, of which 473 were for the
Union, 44 were cast for International Association of
Machinists and Aerospace Workers, AFL-CIO and Unit-
ed Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Joint Intervenors), 93 for International Broth-
erhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, Local #577, AFL-CIO, and 737 were
cast against the participating labor organizations. There
were 12 void ballots and 17 that were challenged. The
challenged ballots were not sufficient in number to affect
the results of the election . The Union herein filed timely
objections to conduct affecting results of election on
January 10, 1973. The Regional Director for Region 23
conducted an investigation of such objections and, on
March 8 , 1973, issued his report on the objections and
i The Union 's unopposed motion to substitute the International rather
than its District 37 as the Charging Party was granted
2 Unless otherwise indicated , all dates refer to 1972.
208 NLRB No. 39
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consolidated the complaint and representation cases for
purposes of hearing.3 Three of the six objections on which
the Regional Director ordered a hearing are encompassed
in the allegations of the complaint. The remaining three
objections contend: (a) the Employer called employees
into the Employer's offices individually and in small
groups and urged the employees to vote against the
participating union ; (b) the Employer and one of the
participating unions distributed what purported to be an
official ballot prior to the election; and (c) a catch-all
allegation.
The issues involved in the unfair labor practice case, as
framed by the allegations in the complaint concern alleged
acts of interrogation, threats of plant shutdown or removal,
discharge, elimination of overtime and reduction in wages,
warning of the futility of selecting the Umon because the
Company would reject all the Umon's demands, and
soliciting employees to persuade other employees to reject
the Union. Involved in these alleged acts are 12 supervi-
sors.4
All parties were afforded full opportunity to participate
in the proceeding.` Briefs have been received from the
General Counsel, the Respondent, and the Union and have
been carefully considered.
Upon the entire record in the case and from my
observation of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, is engaged in the
manufacture and sale of off-shore dulling equipment, and
maintains its principal office and place of business at
Houston, Texas. At all times material herein, Respondent
has operated a plant at Brownsville, Texas, which is the
only facility involved in this proceeding. Respondent
annually manufactures, sells, and ships from its facilities
located within the State of Texas finished products valued
in excess of $50,000 to its customers located outside the
State of Texas.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and(7) of the Act.
The complaint alleges, the answer admits, and I find that
United Steelworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
IT. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent's Brownsville plant began its operations in
June 1971. In August 1972 it had about 1,400-1,500
employees and this rose to about 2,000 by December of the
year. Employment is expected to reach 3,000. The welder-
fitter classification comprises approximately 80 percent of
3 Three of the Union's objections were withdrawn
4 Upon motion of the General Counsel, minor amendments to the
complaint were permitted-
5 The TAM was permitted to intervene at the hearing, the intervention
.vas limited to the issues raised in the representation case
6 As Personnel Director Hagood testified, the first line supervisors were
the workforce. The Company operates a training school to
teach welding to its new employees. The first line
supervisor is the leadman who has between 10-15
employees in his crew. Many of the approximately 100
leadmen were promoted from the ranks into the superviso-
ry positions. Next higher in the supervisory structure is the
assistant foreman or the foreman, depending on the size of
the department supervised by the foreman.
The Union began its organizational campaign early in
1972 and filed a petition on November 1 for an election.
The Respondent, through Howard Jackson, its industrial
relations manager, ran a supervisory training program for
its foremen, assistant foremen, and leadmen. Commencing
about November 1, when the petition was filed, the format
of the training program was thereafter devoted exclusively
to the union campaign. These meetings were held weekly
and ran until sometime in December. The first such
meeting was devoted to "Do's" and "Don'ts" relating to
supervisory conduct and their discussions with employees.
The supervisors were given lists of the "Do's" and
"Don'ts" Subsequent meetings covered discussions of
organized shipyards of other companies that had been
closed, the Company's apprenticeship program as com-
pared to programs of two of its competitors, restrictions on
union conduct, the Company' s insurance benefits, and
information concerning monetary losses to employees m
the event of a strike. Pertinent material covering these
subjects was given to the supervisors. The supervisors were
instructed to discuss the union campaign with the
employees-to give the Company's position-that it did
not want the Union-and to explain to the employees the
consequences that would befall them if the Union became
the bargaining representatives As shown by later events,
some supervisors, possibly because of their zeal or lack of
sophistication, clearly exceeded the bounds of 8(c) in
carrying out the message.
Most of the allegations with which we are concerned
turn on resolutions of the conflicting testimony of the
supervisors involved and the employees to whom alleged
unlawful statements were directed. The native tongue of
many of the witnesses, both supervisors and employees, is
Spanish. Although these witnesses also spoke English, it
was obvious that a number experienced difficulty • in
expressing themselves clearly in English. In determining
whether alleged statements by supervisors were made, as
testified to by the General Counsel's witnesses, both
present and former employees, I have been concerned that
what employees testified to may have been honest but
mistaken impressions of what was said rather than what
actually was said. In resolving credibility, I have borne in
mind that the burden of proof is upon the General Counsel
in the prosecution of a complaint. '
A substantial number of allegations concern alleged
statements of plant removal or closure and elimination of
overtime. It should be borne in mind that rumors were
circulating all over the yard that if the Union came in,
instructed to tell the employees in their crews "that if the company was
organized by a union or any union and their demands became so excessive
that our company was not competitive and could not be competitive in the
open market place , that we may have to make the necessary adjustments."
Explaining what he meant by "necessary adjustments." he stated the
Company "had to be competitive or go out of business "
MARATHON LE TOURNEAU CO. 215
overtime would be eliminated and the plant would be
closed Most of the employees had been working 50 hours
a week. Supervisors admitted that employees had raised
questions concerning these rumors. Any finding of unlaw-
ful conduct relating to the loss of overtime or closing of the
yard will not be based merely because the rumors existed.
It 's mentioned to portray the atmosphere that existed
during the period with which we are concerned.
B. The Conduct of Frank Maldonado
The General Counsel alleges that on about September 6,
Maldonado, Respondent's employee and community
relations manager, told employees that Respondent would
leave he area if the Union became the bargaining
representative.?
The -ecord disclosed that newly hired employees went
through an orientation program conducted by Maldonado.
In his presentation, Maldonado explained the structure of
the Company, its operations, personnel policies, and the
function of the training school. He followed written
guidelines. He also had a prepared text concerning the
Union's organizational campaign which clearly revealed
the Company's opposition to the Union. It is not
contended the text itself contained any unlawful threats.
In support of this allegation, the General Counsel
produced Valentin Castillo who is still employed by
Respondent. Castillo testified he attended an orientation
lecture at the time he began his employment in early
September. He testified that during Maldonado's presenta-
tion about the Company's opposition to the Union,
Maldonado said that if the Union came in, the Company
would probably move out and "leave the Valley."8
According to Castillo, Maldonado was not reading from
any paper when he spoke about the Union.
Maldonado denied that he made any comment about
any plant removal. He testified that he read the text at each
of his orientation addresses. Castillo appeared to be a more
truthful, forthright, and honest witness as compared to
Maldonado. I find Castillo's testimony more credible and
find that Maldonado conveyed the threat that selection of
the Union as the bargaining representative would probably
res ilt in plant removal. Such threat is violative of Section
8(a)(1) of the Act .9
C. The Condact of Leadman Robert Melendez io
The complaint alleges that Melendez threatened employ-
ees with plant removal if the Union came in and with
discharge for supporting the Union."
The witness to this issue was Valentin Castillo. He
testified that on November 8 he had picked up a union
handbill that had just been distributed outside the training
center when Melendez approached him. Melendez told
him the Union was no good and he (Castillo) "could get
fired for going with the union" and "If the union came in,
4 Par 7(a) of the complaint
8 Referring to the lower Rio Grande valley where the plant is located
9 It should he noted that this occurred prior to the filing of the
representation petition and, accordingly, may not be considered as
objectionable conduct
10 The complaint incorrectly referred to him as Mehndas, as did
reference to him in the transcript early in the hearing.
the company would probably close, and we would have to
go back to our two-bit jobs." Melendez admitted convers-
ing with Castillo about the Union but denies making the
threats attributed to him. I found Castillo to be a more
truthful witness than Melendez and credit his testimony. I
therefore find that on November 8. Melendez' remarks to
Castillo that he could be discharged for supporting a union
and that the plant would probably close if the Union came
in constituted unlawful threats within the meaning of
Section 8(a)(1) of the Act.
D. The Conduct of Leadman Jesse Silva
The complaint alleges that Silva unlawfully interrogated
employees, solicited employees to dissuade other employ-
ees from supporting the Union, and told employees that
the plant would close if the Union came in.iz
In the latter part of November, Leadman Silva conversed
with Francisco Gonzalez, an employee in his crew, about
the Union.13 Gonzalez testified that Silva approached him
and asked, "what I thought about the union." Silva then
went on to compare the Respondent's apprenticeship
program with programs in organized plants of competitors.
Silva then said, "I've got confidence in you, and you can
talk to the men better than I can. You should go ahead and
talk to the men that we will be better off without the
union." In response to the General Counsel's leading
question, Gonzalez testified that Silva also told him "if the
union came in that it was going to make matters worse for
everyone and that the plant was going to close down and
go away." However, on cross-examination, with respect to
the remark about plant closing, Gonzalez testified as
follows:
Q. Now you said that Mr. Silva told you that the
plant might close, is that right?
A. Yes, sir.
Q. Do you recall him telling you that if the union
got in and they had too many tough working conditions
and the wages got too high, and they couldn't be
competitive, they might close.
A. Yes, sir.
Q. That's what he said, isn't it?
A. Yes, sir.
Silva admitted talking to Gonzalez about the Union and
about the merits of the Respondent's apprenticeship
program, as compared to other companies. He denied
soliciting Gonzalez to persuade other employees not to
support the Union. He did not specifically deny asking
Gonzalez what he thought about the Union. His version of
the reference to plant closing follows: "Well, I never told
him that the company would close and go away, but I do
recall telling him that if the union came in and the union
demands were too high and the company could not meet
them and they could not be competitive, under the
contract, that they might have to move away."
i i Par 7(b) and (c) of the complaint.
i2 Par 7(d), (e). and ( f) of the complaint In his brief , the General
Counsel moved to withdraw 7(q) concerning further alleged unlawful
conduct by Silva As I agree there was no testimony adduced concerning
this allegation , the motion to withdraw 7(q) is granted
13 Gonzalez was terminated about a week before the hearing.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Gonzalez' testimony to the effect that during the
conversation with Silva, he was interrogated regarding his union.
sympathies to the Union and was solicited to dissuade
other employees from supporting the Union. With respect
to the plant closure, I am persuaded that Silva's version is
the more accurate one. This is not to say that Gonzalez was
not being truthful. In his later testimony, he did concede
Silva made reference to possible union demands and the
Respondent's competitive position facing it with union
representation. Accordingly, I find that Silva's inquiry of
Gonzalez' feelings about the Union constituted unlawful
interrogation and Silva's attempt to have Gonzalez
persuade other employees not to support the Union
constituted unlawful interference and coercion in violation
of the Act.i4 The question of whether Silva's remarks
regarding plant closing violated 8(a)(l) will be discussed
later in this Decision.
E. The Conduct of Leadman Earl White
The General Counsel alleged that White conveyed
threats to employees that if the Union were successful in
the election, overtime would be reduced or eliminated,
employees would suffer a reduction in pay. the Respondent
would move, and employees would be discharged for
supporting the Union. Attributed also to White is the
statement to an employee that if the Union made too many
demands that Respondent could not afford, Respondent
would move.is
Guadalupe Araujo, an employee still with the Company,
testified that on December 29, he was called into the
foreman's shack by White. The conversation was devoted
exclusively to the union campaign. White first asked him if
he had any questions about the Union. Then White told
him, "if the union wins, you probably get your paycheck
cut down to about two eighty, and then probably we just
close down and dust move out too, you know"; "if the
union did come in, we lose the overtime"; and, "if you
would get involved with the union and the company find
out, you lose your job." Araujo testified that he was once
again called into the shack, this time about December 29.
White told him, "not to get involved in the union, because
if I should get involved with the union, I might lose my job
and things like that. That's all I can recall."
Luis Gonzalez testified, on direct examination, that
several days before the election he was called into the
foreman's shack by White. His testimony, in pertinent part,
follows:
Q. Would you tell thejudge what Mr. White said to
you on this occasion.
A. That what did I think about the union. And-he
showed me a little card that said, it had something to
do about my-I can't remember what the card said.
That I would be losing around-paying union dues,
that I would be losing about $30 or something like that,
out of my pay check. And I didn't pay attention to him.
11 Bisso Towboat Company, Inc, 192 NLRB 885; Great Atlantic & Pacific
Tea Co. 167 NLRB 776, 782.
15 Par 7(i)--(1) and (dd) of the complaint
16 Gonzalez was terminated on February 1, 1973
Q. Can you tell us what you can remember what
Mr. White did say?
A. That's about all that I can remember.
Q. That was pertaining to money, that you have
just described?
A. Yes, sir.
Q. Do you recall anything else, any other subjects
that he mentioned?
A. No. because I didn't pay any attention any
more. Just said yes or no and just ignore him.
Q. Do you recall hearing him say anything with
respect to the topic of what would take place if the
union came in?
A. Yes. About the company shutting down and
leaving.
Q. Did you hear him say anything about that?
A. Yes.
Q. Would you tell the Judge what you heard him
say.
A. About the company closing up and leaving,
that's about it.
JUDGE NESS: Who said this?
Tu-IE WITNESS: Mr. Earl White.
Q. (By Mr. Linton) Do you recall the subject of
overtime being mentioned in the conversation with Mr.
White?
A. Yes, he told me about that, about not having
overtime.
Q. Beg your pardon?
A. We were not going to have any overtime, if the
union came in.
Gonzalez said the conversation was in English and he has
difficulty in understanding English.ib
Vidal Rangel, still employed by the Company at the time
of the hearing, testified that in late November, Leadman
White talked to him in the foreman's shack about the
Union. He testified that White told him if the Union won
the election, the employees would have less earnings,
overtime would be eliminated, and "if the company would
not pay the union wages, it might go down, it would close
up." Once again, on about December 28, White spoke to
him about the Union in the shack. White's remarks about
the Union, according to Rangel, follows: -
A. Well, he told me about the union again. He was
dust reminding me about the union. He said if the union
would win the election, the company would close
down. It would mean lower wages. It would mean no
more overtime, just 40 hours and less wages.
White admitted calling employees in his crew into the
office where he discussed the union campaign with them.17
He testified he met with the employees to present the
17 White explained he held the discussions in the office because it was
noisy in the plate shop where employees worked and one had to shout to he
heard.
I just ignore it. I don't want to know nothing about the
MARATHON LE TOURNEAU CO.
Company's position and showed them the material
received from Jackson.18 Initially he asked the employees
if they had any questions regarding the union handbills or
rumors around the yard. He related that employees raised
questions with him regarding rumors of plant closure, loss
of earnings, and reduction in overtime and he responded.
He admitted that where employees didn't raise these
subjects, he himself did. With respect to rumors about the
closing of the yard if the Union came in, he told the
employees he didn't know the Company's position but he
didn't think it would close. He told employees, "if a union
placed extreme hardships on a company whereby they
couldn't stay competitive, that they would either go broke
or move out." In connection with loss of wages, he said he
compared the Company's apprenticeship program to those
of its competitors who were organized, pointing out that
under the programs of the rival companies their wages
would not be increased as rapidly. Concerning the loss of
overtime, his version was that he told the employees he
didn't know the Company's position but he didn't believe
the Company would cut down the hours because of the
amount of work to be done. He also testified he told
Gonzalez that some employees were desirous of going to a
40-hour week and if the Union came in, the Union would
attempt to negotiate a reduction in overtime. He specifical-
ly denied making the threats attributed to him by Araujo,
Luis Gonzalez, and Rangel.
I find White's account of his conversations with the
employees more convincing and credit his denials regard-
ing the remarks attributed to him. Both Gonzalez and
Rangel appeared uncertain while testifying, evidencing
only a hazy recollection of what White had said to them.
Elsewhere in this Decision I found Araujo an unreliable
witness. I therefore conclude and find that the facts do not
reveal that White threatened the employees with loss of
overtime, reduction in pay, or that they would be
discharged for supporting the Union. Accordingly, I
recommend that par. 7(i), (1), and (1) of the complaint be
dismissed. The issue of the propriety of White's credited
remarks about plant closure will be discussed later in this
Decision.
F. The Conduct of Leadman Arturo Buentello
The General Counsel alleges that Buentello told employ-
ees on about November 24 they would have a better
chance to make first-class welders if the Union did not
come in. (Par. 7(m) of the complaint.) On January 2, 1973,
the day before the election, Buentello allegedly told
employees that if the Union won the election, those
employees who signed union cards would be put on
probation. (Par. 7(ee) of the complaint.)
Employee Manuel Nunez, called by the General Coun-
sel, testified that on November 24 Leadmen Buentello and
Barrero met with their crews jointly and discussed the
Union. Nunez testified that at this meeting, Buentello told
the employees that it would take about 4 years to become a
first-class welder with the Union; without a union it
is Resp Exh 14 This included the list of organized shipyards of other
employers that had closed-] 9 in number
19 Par. 7(n) and (o) of the complaint
20 He was terminated on December 18,
217
wouldn't take so long. Nunez admitted that Buentello
made reference to the fact that union contracts provided
that it would take as much as 4 years to reach the top rate
of pay. Nunez also related that on January 2, the day
before the election, as he was leaving the yard, Buentello
told him:
A. He said that if the umon won the election,
people who sign cards for the union afterwards, would
be put on probation for about three-two months-two
to three months. And then he said for everybody to go
vote, because they were going to raffle a. TV set.
Buentello admitted discussing the apprenticeship pro-
grams at other companies under union contracts. As to the
specifics of the discussion on this subject, his testimony
follows:
A. Again, on this question, I don't think I told the
people anything like that. Again, I only-I expressed
the fact to the people that in case a union would take
into effect something like an apprenticeship program,
that it would take these people that much time to
accomplish what they could accomplish in a short time
with the company.
Buentello denied telling Nunez that employees who signed
cards would be put on probation. He testified that as he
was handing out timecards to the employees that day, he
told them they should vote in the election the following day
and that even if they signed union cards they didn't have to
walk out in case of a strike. He explained he made this
remark in response to such question posed to him by a
number of employees who were concerned because they
had signed union cards.
Accepting either version of the November 24 discussion,
the remarks do not rise to the stature of an unlawful
promise of benefit or threat of reprisal and I so find. An
employer is privileged to point out the advantages of its
existing wage scale program as compared to those of
organized companies. With respect to the January 2
conversation, I credit Buentello's version and find that he
did not tell employees that those who signed union cards
would be put on probation if the Union won the election.
Accordingly, I recommend paragraph 7(m) and (ee) of the
complaint be dismissed.
G. Conduct of Leadman Marlin Martinez
The General Counsel alleges that on about November
27, Martinez interrogated employees and threatened them
with elimination of overtime if the Union came in.19 The
General Counsel 's witness on this issue was Jose Garcia 20
According to Garcia, a few days after Thanksgiving, he
was called into the assistant foreman's office by Martinez
where Martinez spoke to him about the Union.21 Garcia
related that Martinez spoke of the pending election, the
secrecy of the ballot, safety and wages. Martinez also said,
"You know if the Union comes in here, your overtime will
2i The "office" is a trailer house converted into an office. Garcia testified
Martinez had said he wanted to talk to him in the office-that it was cold
outside-Garcia agreed it was cold.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be cut off, to 40 hours." Martinez also asked him why he
wanted the Union.22
Martinez admitted he engaged Garcia in conversation
about the Union in the office, as he did the other members
of his crew at various times. He testified he asked Garcia
how he thought he would benefit from the Union. He
admitted asking other employees in his crew the same
question when he discussed the Union with them. With
respect to the discussion on overtime, Martinez testified as
follows:
And we went on to the conversation then and he
said-he says, "If the union come in, would we go back
to eight hours anyway?
JUDGE NESS: Mr. Garcia said this?
THE WITNESS: Yes. He said he would rather work
eight hours instead of ten. I said this is a possibility,
yes. The overtime might be cut down or a third shift be
put on, to take up the overtime. Or they could just stay
at the same shifts we are now and just double the
manpower. The conversation didn't last over ten
minutes, at the most.
In rebuttal, Garcia denied he had told Martinez he did not
favor working overtime. He in fact desired the overtime
work.
I credit Garcia's account of the discussion with Martinez
and find the questioning as to why he wanted the Union to
be an unlawful form of interrogation proscribed by the Act
in violation of Section 8(a)(1). Moreover, I find that
Martinez' admitted interrogation of other employees in his
crew to be unlawful. I also find it was Martinez who raised
the overtime issue and who categorically told Garcia that
the selection of the Union would result in the loss of
overtime. I find this to be a threat in violation of Section
8(a)(1) of the Act. In this connection I have particularly
noted that Martinez testified he tried to get across to the
employees they would be better off with the overtime work
they were then performing. Interestingly, in his account, he
did not refer to the possibility that elimination of overtime
may have been the Union's position.
H. The Conduct of Leadman Ruben Barrera
The General Counsel alleges that about December 1,
Barrera told employees that if the Union came in there
would probably be a strike because Respondent would
turn down whatever the Union asked for in negotiation 23
Manuel Nunez credibly testified that Berrera came up to
him while he was working and made the statement
described above. This was not specificially denied by
Barrera who testified at length regarding his conversation
with Nunez about the Union. Nunez further testified that
22 Garcia conceded it was common knowledge he favored the Union and
that Martinez was aware of it
23 Par 7(p) of the complaint
24 It appeared clear from the record that the reference to floating the
pontoons down the river meant moving part of the Company's operations
elsewhere . Although the complaint does not specifically allege this
additional remark as an 8(a)(1) allegation , this issue was fully litigated and
has been duly considered
25 In Nunez' testimony, the transcript reflects that the reference by
Barrera was to employees who had signed union cards. None of the parties
have requested any correction to the record in this respect My recollection
in this same conversation, Barrera told him that if the
Union won the election the Respondent would "probably
float the pontoons down the canal; that only the men who
had signed cards for the union would be working." 24
Barrera admitted talking to Nunez, as well as,to all other
members of his crew, about the Union. He specifically
denied telling Nunez that the Company would float the
pontoons elsewhere if the Union came in and that only
those who hadn't25 signed union cards would be permitted
to work. Nunez appeared to be a credible witness.26 On the
other hand, Barrera did not appear to be convincing.
Barrera acknowledged the rumor was all over the yatd that
the Company would move after the election and that his
employees asked if it was true. His testimony does not
show how he responded. During his examination , when he
was asked the meaning of "floating the pontoons down the
river," and if it meant that the Company would have this
work done elsewhere, he responded, "Well, if they were
having trouble negotiating or stuff like that, I guess."
Accordingly, I credit Nunez and find that about December
1, Barrera told him that there would probably be a strike
because Respondent would turn down whatever the Union
asked for in negotiations. Such expression was designed to
show the futility of selecting the Union as the bargaining
representative; the inevitable result would be a strike
because the Company would have a closed mind in
bargaining negotiations and constitutes a threat in viola-
tion of Section 8(a)(1) of the Act. I also find in this same
conversation Barrera told Nunez that part of the Compa-
ny's operations would be removed if the Union was
successful in the election and thereafter work would be
available to employees based upon whether they had
signed union cards. Such statement clearly constituted an
unlawful threat of reprisal violative of Section 8(a)(1) of
the Act and I so find.
1. The Conduct of Assistant Foreman Tom Ashley
The General Counsel alleges that about December 7,
Assistant Foreman Ashley engaged in unlawful conduct by
telling employees that "he had worked for companies
where a union came in and the companies were shut
down" and "that overtime was eliminated when unions
came in." 27
Employee Reynaldo Rocha28 testified another employ-
ee, Cerillo, and he were called into a little shack in the yard
by Ashley where Ashley talked to them about the Union.29
He described the shack as one used by the leadman and
timekeeper as an office for preparing reports and time-
cards. Rocha's testimony about this conversation follows:
is that the transcript correctly reflects what was said at the hearing
Regardless of the group of employees referred to, the statement, in any
event, would constitute an unlawful threat.
26 Elsewhere in this Decision, I did not rely on Nunez testimony
concerning alleged unlawful conduct of Leadman Buentello-see Sec. F,
above. However, with respect to his conversation with Barrera , he appeared
more positive.
27 Par. 7(r) and (s) of the complaint , respectively.
28 His employment with the Company terminated on January 24, 1973
29 Cerillo was not called as a witness.
MARATHON LE TOURNEAU CO.
So he begins his conversation by saying, does he
know election time is coming up? We said , "Yes, sir."
He said , "Have you ever voted for a union election?"
We told him, "No."
So he begins by saying how we were going to vote,
with an X, and nobody will know how we voted, or for
who we voted. So he keeps on saying-well, he draws
these four boxes, you know, and he puts the name of
the union and no union, four boxes. So he kept on
talking and then he begin by saying that he had worked
in companies where unions came in and they would
shut down.
So he keeps on, and he says, you know, there
were-since-there wasn't any union dues taken out of
our checks, and we told him no, sir. And he says, if
union comes in, there will be dues deducted. And he
said that if the unions came in, our overtime will be cut
down. And he said that union were no good, because
he had worked for companies that unions came in and
they were closed down.
Then he kept on talking about the umon, and all
that, and then he said, "We appreicate you very much,
if you guys put an X on-I think it was the first box, for
no union, so we ended our conversation there.
With reference to overtime, later in his examination, Rocha
testified, "No sir. The way he told me, he said there were
many jobs under unions and the men work only 40 hours."
Ashley testified that leadmen had reported to him some
employees did not understand the election procedures. It
was for this reason that the leadman sent Rocha and
Cerillo to him. Ashley conceded he discussed the mechan-
ics of the election and the secrecy of the ballot. He
specifically denied discussing any plant closures or his
experience where he had worked. He also denied saying
that overtime work would be cut if the Union won the
election. Ashley impressed me as a sincere and candid
witness and I credit his denials. Accordingly, I recommend
Paragraph 7(r) and (s) of the complaint be dismissed.
J. The Conduct of Leadman Virgil Jaurequi
The General Counsel alleges that on about December 18,
Jaurequi asked employees for their opinion about the
Union; about December 28, told employees that if a union
were to come in, the Company possibly would move, and
employees might be cut back to 40 hours.30
The witnesses to this issue were Jaurequi and employee
Rogelio Garza.31 Garza testified that on December 18,
while he was working, Jarequi approached him and asked
what he thought about the Union coming in and why he
wanted it. Jaurequi, on the other hand, testified that it was
indeed Garza who initiated the conversation by asking
Jaurequi if he wanted the Union. It was then that Jaurequi
inquired as to why Garza wanted the Union. Jaurequi's
account of this conversation did not nng with sincerity
whereas Garza appeared to be a more truthful witness. I
therefore credit Garza and find that on December 18
Jaurequi unlawfully interrogated Garza in violation of
Section 8(a)(1) of the Act. Again, on December 28, this
so Par. 7(u). (y). and (z) of the complaint , respectively
31 Garza was terminated about 3 weeks pnor to the hearing
219
time in the locker room , Jaurequi spoke to Garza about the
Union. According to Garza, Jaurequi told him:
He told me, "Well , you know if the union comes in,
that will cut out the working hours and work only 40
hours a week. Or even there's a possibility that the
company will go away , go some place else, move some
place else."
Jaurequi admitted conversing with Garza in the locker
room about the Union . He testified that Garza mentioned
a rumor going around that the Company would move away
and "something about reducing the hours." His response to
Garza was:
I drew him a picture , stating on these hours that
mainly a union is interested in more people working for
the company . There's four persons working for the
company working ten hours apiece . That's two hours
overtime apiece , that's eight hours . In other words, four
people taking the place of one individual. That's what I
told the men.
In response to a question by Respondent's counsel as to
whether he spoke to Garza about the rumor regarding the
Company moving away, he stated, "No. No, I don't
remember it." I find Jaurequi 's denial unconvincing. It
seems hardly likely that Garza would raise the questions
about moving and reduction in hours but yet Jaurequi
would discuss only the reduction in hours. I find Garza's
account more convincing and find that on December 28,
Jaurequi told Garza that if the Union came in, the hours
would be reduced to 40 hours and the Respondent possibly
would move away. Such expressions clearly conveyed
unlawful threats of reprisal in violation of Section 8(a)(1)
of the Act and I so find.
K. The Conduct of Leadman William Wright
The General Counsel alleges that about November 14,
Wright told employees that if the Union came in, wage
increases would be slowed down , the Company would
probably close the facility, and the hours of employees
would be cut to 40 hours.32
In support of these allegations, the General Counsel
presented Juan Hernandez who is still employed by the
Respondent . Hernandez testified Wright spoke to him
about the Union somewhere in mid-November . Present
also was another employee , Windhause , who was not
called as a witness. According to Hernandez, Wright
pointed out that under apprenticeship programs in organ-
ized plants it would take 4-5 years to become a first class
welder as compared to Respondent's more favorable
program. Wright also told them the Union didn't believe in
overtime and the overtime would be cut down if the Union
came in . Wright showed him a document listing and said,
"these are shipyards that closed down, due to union
demands. That if the union came into Marathon , that that
would probably happen here."
Leadman Wright admitted having a conversation with
32 Par 7(v), (w), and (x) of the complaint.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hernandez, together with several other employees about
the Union. With respect to subject of closing the yard,
Wright's version is as follows:
A. Well, I believe I covered the shipyards first. I
went down and I read the shipyard names, where they
were located, the fact that they had gone out of
business, and the unions that they had, was on the
sheet.
I told them, these are unions-I mean, these are
yards that went out of business and that had unions.
And I believe one employee asked me-it was Juan
and Phil Windhause and two or three other employees
working on organized shipyards that had closed down
(G.C. Exh. 2) the slab, and I went up to Juan-Juan
Hernandez-I went up to Juan and I was explaining it
to him, and the other employees came up around me.
And I told them, "These are the yards that had unions
and went out of business."
And someone asked the question, "How could a
union cause a company to go out of business?"
And I said, "Well, if the union demands-" "If
union demands are too high and the company can't
meet these demands, that the union could probably go
on strike. And if they struck too long or too much, the
company would lose competition-" I mean, "They
would lose customers, and go out of business. They
wouldn't be competitive.
* * * *
Q. In connection with the list of shipyards that had
closed that you showed them, did you make the
statement that this was a list of shipyards that had
closed down due to or because of union demands?
A. I don't remember making that statement. What
I remember is the man asking the question, "How
could a union cause a yard to go out of business?"
Now they might have assumed that those yards went
out of business because of that, but I don't remember
saying that those yards went out of business because of
union activity. I don't remember saying that.
His version of the discussion regarding the comparison of
appren, iceship programs of other companies with the
Company's program does not differ in any appreciable
degre ; from that of Hernandez. Wright was not questioned
regarding any statement he made to the employees about
the reduction in overtime.
With respect to the comparison Wright made of the
apprenticeship programs, I view such statements as
privileged. It would be unduly straining to conclude that
such statements should be interpreted to mean that with
the success of the Union, wage increases would be slowed
do, n, as alleged in paragraph 7(v) of the complaint.
Accordingly, I recommend this allegation be dismissed.
Concerning the alleged statement about reduction in
overtime, Hernandez appeared to be a truthful witness. In
absence of any denial by Wright, I will credit Hernandez
and find that Wright told him that if the Union came in,
33 G. C Exh. 3, 4, and 5.
34 The December 9 editorial mentioned that the Union forced Pan
the overtime would be cut. Such statement constitutes an
unlawful threat violative of Section 8(a)(1) of the Act and 1
so find. With respect to the issue of the possible closing of
the yard, this presents a credibility issue not so easy to
resolve. Both witnesses agreed that they discussed other
shipyard closings, that the list of companies was shown to
Hernandez and that there was a discussion of "union
demands." I am persuaded Hernandez' testimony on this
issue was an honest interpretation of what he believed was
said but not what was actually said. I therefore credit
White's testimony relating to the plant closure. The
question of whether his remarks regarding plant closing
violated the Act will be discussed later in this Decision.
L. The El Puerto Editorials
The El Puerto is a weekly newspaper of general
distribution published in Brownsville, Texas, and printed
in Spanish. The Respondent posted on its bulletin boards
the English translations of the newspaper's editorials
published on December 9, 16, and 23.33 It is the contention
of the General Counsel that by posting these editorials on
its bulletin boards, the Respondent adopted the views
expressed in the articles, thereby threatening employees
with loss of their jobs. (Par. 7(t) of the complaint.)
I find it unnecessary to discuss all the representations
and statements made in the editorials in issue . Clearly the
editorials expressed the antiunion attitude of the publisher
and were aimed as appeals to employees of Respondent to
reject the Union. Had there been no statements which
could be construed as unlawful, assuming responsibility
attaches to Respondent, no further discussion would be
necessary. However, the December 23 issue, posted by
Respondent on its bulletin boards on December 26,
contained the following statement: "If the Union wins, we
can assure you that there will be total disorder and all the
workers of that company will meet the same fate as those
at Pan American that had to shut its doors."34 Such
statement expressed a clear threat of economic reprisal.
The publication of such threat in the newspaper itself
cannot be considered as a violation of the Act in absence
of any agency relationship or ratification by the Respon-
dent. There is no contention made that the newspaper was
acting as agent of the Respondent. I find however, that
under the circumstances described herein, Respondent
threatened the employees with plant closure by posting the
December 23 editorial. We must bear in mind that rumors
were abounding throughout the yard of plant closure if the
Union were successful and became the bargaining repre-
sentative. The record discloses that supervisors themselves
were aware of these rumors and that employees had
questioned them about the truth to these rumors. In some
cases, supervisors did little to allay the fears. In other cases,
the supervisors lent support and confirmed the rumors.3'
This matter of possible plant closure was a matter of
concern and apprehension to the employees. Here the
American to shut down
35 Leadmen Maldonado. Melendez. Jaureqw, and Barrera
MARATHON LE TOURNEAU CO. 221
Respondent did more than passively enjoy the benefits of
the ominous threat contained in the editorial.36 The
Respondent did not lie dormant as perhaps it may have
been legally entitled to; the Respondent posted the
editorial on its official bulletin boards, thereby lending
support and credence to the answer to the open and crucial
question of concern to the employees-will the Company
close down the yard if the Union comes in? Under these
circumstances, the Respondent, by posting the December
23 editorial, created a situation whereby employees would
reasonably believe that the views expressed in the editorial
reflected those of Respondent-that the yard would shut
down if the Union came in. In view of the foregoing, I find
and conclude that Respondent, by its conduct, threatened
the employees with plant closure if the Union were
successful in the election, in violation of Section 8(a)(1) of
the Act.37
M. The Speeches by Company President Hilder and
Electrical Supervisor Joe Marks
On November 22, Hilder delivered speeches concerning
the union campaign to six different assembled groups of
employees, twice at the training center and four times in
the auditorium at the plant. Hilder had a prepared text
(Resp. Exh. 15) and each of his talks, except the first at the
training center at 7:30 a.m., was recorded on a tape.38
Except for the first talk at the training center there were
departures from the prepared text, as the Respondent
concedes. Each tape was transcribed and the typewritten
transcriptions were received in evidence after a proper
foundation was laid for their admission. (Resp. Exh. 21
through 25.) The tapes themselves were available at the
hearing.
Likewise, on December 29, Hilder delivered speeches to
four different massed groups of employees. Hilder again
had a prepared text but deviated somewhat. After each of
his talks, they were repeated in Spanish by Joe Marks. The
speeches of both men were recorded and typewritten
transcriptions were received in evidence upon a proper
foundation being laid. (Resp. Exh. 16 through 20-Hilder;
Resp. Exh. 27 through 30-Marks.) These tapes also were
available at the hearing.
The General Counsel contends that on November 22 and
on December 29 Hilder, in his speeches, threatened the
employees with plant closure and elimination of overtime
if the Union became the bargaining representative.39 The
36 See Monroe Auto Equipment Co, 159 NLRB 613, enfd 392 F 2d 559
(C. A 5, 1968), cert. denied 393 U .S. 934.
17 Hamburg Shirt Corporation, 156 NLRB 511, enfd 371 F.2d 740
(C A.D C,1966)
38 This first speech at the training center at 7 30 a.m was not recorded
because of failure to activate the equipment when the speech was given
3'1 Par. 7(g) and (b) of the complaint-the November 22 speech, Par
7(aa) and (bb)-the December 29 speech
40 Par 7(cc) of the complaint
4i She was on sick leave when Ililder delivered the December 29 speech.
42 From Resp Exh 15
"The people out at Ices decided to let the union come between them
and their company You probably know some of those people Ask
them if the union looks after their interests You know Ices laid off 300
people recently-ask them if the union helped!
We know of another good example of how this same union
operates From the things that have happened at our Waco plant The
General Counsel also alleges that Marks, in presenting the
Spanish translation of Hilder's remarks on December 29,
told the employees that if the Union won the election
Respondent would move 40
Five of the General Counsel's 11 witnesses testified as to
alleged threats made by Hilder in the course of his
speeches-Araujo, Bauer , Luis Gonzalez, Hernandez, and
Rangel. Significantly, the other witnesses were not ques-
tioned about the speeches. Some of the witnesses who
testified as to the alleged threats appeared to be testifying
honestly but their testimony was vague and uncertain, and
from my observations of them as they testified, they only
had a hazy recollection of what actually was said.
Bauer was the only witness for the General Counsel
concerning the 7:30 meeting at the training center on
November 22-the meeting that was not taped.41 Her
testimony in substance was that Hilder said with the Union
coming in, the plant would close down if the Company
could not meet the demands of the Union. Hilder also
named several plants that closed down because the Union
came in. I am convinced that although Bauer appeared to
be testifying truthfully, her recollection of what was said
was based upon a misunderstanding of what was said,
rather than what actually was said . In this connection, I
credit the testimony of Howard Jackson, industrial
relations manager and John Austin, administrative assist-
ant to President Hilder, that they followed the text as
Helder spoke and he followed it verbatim. After examining
that portion of the text relating to plant closings, it
becomes apparent how Bauer would honestly reach the
conclusion as to what she thought Hilder had said.42
Luis Gonzalez testified that at both meetings Hilder
spoke of plant closings and elimination of overtime43 but
based upon my observation of him on the stand and
listening to him testifying, it became apparent that he had
no clear recollection of what was actually said by Hilder.
Rather it appeared to me that he was relating only his
ultimate conclusions of what he thought was said. For
example, when asked what he recalled that Hilder said at
the December 29 meeting, he said, "Well, I guess about the
union coming in, we would have no overtime, and that's
about it." When an attempt was made to refresh his
recollection of anything else said , he added, "Well, that the
company would close. Well, really, I don't remember."
Araujo appeared to be an unreliable and unconvincing
people who formerly operated that plant had a government contract,
and the union organized those employees. When the union's demands
became too high , the company gave up their contract and closed the
plant because they couldn't be competitive . Two years later we opened
the plant and got a new contract with the government . But for two
whole years, from 1970 to 1972. those employees were out of work We
have hired them back the same as we hired you-at Marathon rates
and with Marathon benefits. Those employees are saying to each other
"From 1970 to 1972-what did the union do for you?'
Most of the people who live around here also remember that Pan
American and Rockport shipyard plus some other established plants
here left after the unions came in and organized their people-because
they couldn' t afford the union's conditions . If we were to get a union
and become non-competitive within our industry, that would happen to
us
I say to you now- suck with us and don't let that happen to you
43 He was present at the speeches given in the auditorium in the late
afternoon.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness who appeared determined to recall only what he
considered detrimental to Respondent's case.44 He testified
that Hilder on both November 22 and December 29 said
the Company would close down the training center. That
was all he remembered being said. Responding on cross-
examination as to various other topics having been
discussed, his flat responses repeatedly were that he didn't
recall.
Under the circumstances I do not credit the testimony of
Luis Gonzalez or Araujo and find the transcriptions of
Hilder's speeches given in the auditorium in the late
afternoon on both dates more reliable. (Resp. Exh. 19 and
25.)
Araujo also testified that in Marks' presentation in
Spanish of Hilder's speech of December 29, Marks said,
"In the event the union should win, we will have td leave
here. We will go." Transcriptions of Marks' speeches were
received in evidence-both the Spanish version and then
the translation back into English (Resp. Exh. 30 and 34).
The transcription does not reveal any language resembling
that attributed to Marks by Araujo. Considering my
unfavorable impressions of Araujo as a witness and taking
into consideration that Araujo was the only witness who
testified as to this alleged threat despite the attendance of
several hundred employees at this meeting, I find the
transcription more reliable. Under the circumstances, I
find that Marks did not make any threats of plant removal
if the Union came in.
The record does not disclose which of the meetings in the
auditorium Rangel attended. Hernandez attended the
10:30 a.m. meeting in the auditorium on November 22.
Hernandez was not questioned about the December 29
meeting . Both testified that at the meeting they attended
on November 22, Hilder said overtime would be cut out if
the Union came in. But only Rangel attributed any
statement to Hilder regarding plant closure. Neither
witness appeared to be certain in his account. I have
considered the number of employees in attendance at the
meetings , the apparent hazy recollection of the witnesses,
and the limited testimony as to the alleged threats. Under
these circumstances, to the extent there is any conflict
between the transcripts and the General Counsel's witness-
es, I find the transcriptions the more reliable.
I find it unnecessary to comment upon each of the
statements in Hilder's speeches. Undoubtedly, Hilder
made it perfectly clear that he was adamantly opposed to
the Union. I have reviewed the transcripts and they
contain no unlawful threat of elimination of overtime.
Accordingly, I shall recommend that paragraph 7(h) and
(bb) of the complaint be dismissed. With respect to his
remarks concerning the possibility of plant removal, I shall
discuss this issue in the next section of this Decision.
N. Further Findings Regarding Plant Closure
Apart from the clear and outright threats of plant closure
as found above, remaining for determination is the
lawfulness of the more subtle statements on this subject
made by Hilder in his November 22 speech 4s and by
Leadmen Silva, White, and Wright. In substance, the
theme was to the effect that if the Union's demands were
too high and the Company couldn't afford the demands,
the Company would become noncompetitive and would
close the operation.
In the Gissel case,46 the Supreme Court articulated
standards to determine whether statements of possible
effects of unionization are permissible.
... Thus, an employer's right cannot outweigh the
equal rights of the employees to associate freely, as
those rights are embodied in Section 7 and protected by
Section 8(a)(1) and the proviso to Section 8(c). And any
balancing of those rights must take into account the
economic dependence of the employees on their
employers, and the necessary tendency of the former.
because of that relationship, to pick up intended
implications of the latter that might be more readily
dismissed by a more disinterested ear ... .
... an employer is free to communicate to his
employees any of his general views about unionization
or any of his specific views about a particular union, so
long as the communications do not contain a `threat of
reprisal or force or promise of benefit.' He may even
make a prediction as to the precise effects he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective facts to convey an employer's
belief as to demonstrably probable consequences
beyond his control . . . If there is any implication that
an employer may or may not take action solely on his
own initiative for reasons unrelated to economic
necessities and known only to him, the statement is no
longer a reasonable prediction based on available facts
but a threat of retaliation based on misrepresentation
and coercion, and as such without protection of the
First Amendment.
In my view, the statements by Hilder, Silva, White, and
Wright were thinly veiled threats of plant closure if the
Union won the election, violative of Section 8(a)(1) of the
Act. It should be remembered that the rumor of plant
closure if the Union won the election was rife among the
employees. The Respondent was aware of the employees'
apprehensions. Its posting of the El Puerto editorial added
substance to the rumor. It was in this type of atmosphere
that we must consider the conduct discussed herein. By
constantly referring to the unionized shipyards that had
closed, the Respondent was capitalizing on the fears of the
employees of plant closure and had only one purpose-to
convey to the employees that these closures were effected
because the plants were organized.47 There is nothing in
the record showing any causal relationship between the
closings of the yards and the fact that they were unionized.
The constant reiteration of closings at other companies
accompanied by raising the specter of possible closing of
44 He was likewise present at the speeches given in the auditorium in the 47 As Leadman Wright testified . "Now they might have assumed that
late afternoon . those yards went out of business because of that [union demands] but I4.5 See fn . 42, supra don 't remember saying that those yards went out of business because of46 N.L KB. v. Gissel Packing Co, Inc, 395 U.S. 575, 618 ( 1969). union activity."
MARATHON LE TOURNEAU CO.
the Brownsville operation could scarcely have failed to
have a chilling effect upon the rights of the employees to
determine for themselves freely whether they wanted a
bargaining representative. The Respondent here estab-
lished a straw man and manufactured links in a chain
leading ultimately to a closing of the operation. It referred
constantly to the unionized yards that were closed with the
implication the unions were responsible. It then referred to
excessive demands the Union may make upon it, when in
fact no election had yet been held nor could the Union
hardly be in a position to make any demands. This was
followed by the hypothetical observation that the Compa-
ny would not be able to withstand the demands and
remain competitive. The plain implication then was that
the Respondent would then shut down the operation.
Accordingly, I find that the statements by Hilder. Silva,
White, and Wright referring to plant removal or closure to
be threats of reprisal if the Union were successful in the
election, in violation of Section 8(a)(1) of the Act.
111. THE OBJECTIONS TO THE ELECTION
The Union filed nine objections. The Regional Director
ordered a hearing on Objections 1, 2, 3, 4, 7, and 9.
Objections 5, 6 and 8 had been withdrawn. In his brief, the
Union counsel moves to withdraw Objection 7 which is
hereby granted.
A. Olyections 1, 2, and 3
These objections allege unlawful interrogation, threats of
loss of benefits, and reduction in the work week. To the
extent that I have found Respondent violated Section
8(a)(1) during the period following the filing of the petition,
I find merit to Objections 1, 2, and 3. Included in this
finding are the unlawful interrogation by Silva, Martinez,
and Jaurequi; the threats of plant closure or removal by
Barrera, Hilder, Jaurequi. Melendez, Silva, White, and
Wright, and by the posting of the El Puerto editorial of
December 23; the threats of loss of overtime by Martinez,
Jaurequi, and Wright; the threat of discharge for support-
ing the Union by Melendez; Silva's solicitation of
Francisco Gonzalez to dissuade other employees from
supporting the Union; and the warning by Barrera that
there would be a strike because the Company would reject
all the Union's demands.
B. Objection 4
The Union charges the Employer with calling employees,
individually, or in small groups, into the Employer's office
and urging them to vote against the participating unions
under circumstances that interfered with the election.
The facts reveal that several of the supervisors48 called
411 Ashley , Martinez, Silva, and White
49 97 NLRB 499. See Three Oaks, Inc., 178 NLRB 534.
50 On the first day of the hearing , the Employer objected when the
Union first attempted to introduce evidence concerning the raffle, his
position being that he had not received any notice prior to the hearing that
this was to be an issue The raffle incident had been investigated by the
Regional Office and during such investigation the Employer had presented
his position concerning this issue The Acting Regional Director's report
directing a hearing made no reference to the raffle . Nor was the Respondent
informed poor to the hearing that the subject of the raffle would be one of
223
employees of their crews into what was described as the
"office" or "shack" where the supervisor presented the
Employer's views and opposition to the Union. The places
where these discussions took place were structures where
blueprints and other papers were stored, where timecards
were prepared, and were used by the foreman, leadmen, or
timekeepers. Under the circumstances, I do not consider
such sites to be the locus of managerial authority within
the meaning of General Shoe Corporation.49 Accordingly, I
find no merit to Objection 4.
C. Objection 9
This objection is a general catch-all objection referring to
"other acts not specifically set forth." Under this objection,
the Union contends that the Company raffled off a color
television set under what it considered circumstances
which prevented a fair election.50
The facts reveal that the employees were notified at least
several days before the election by the Employer that a
color television set would be raffled off.51 The employees
were advised that only those that voted in the election
would be eligible to participate in the raffle. Eligibility to
participate was not contingent upon how the employees
voted. The election was conducted in the Employer's
auditorium on January 3 during two periods: from 5:30 to
8:30 a.m. and from 3 to 6:30 p.m. After the employees cast
their ballots they exited through a door leading into a long
hallway. A sign was posted at the exit containing an arrow
pointing to the direction in which to proceed to register for
the raffle. A table was situated down the hallway between
40 and 140 feet from the exit where employees lined up to
register for the raffle. Several employees had been assigned
by the Employer to sit at the table and process the voters as
they came to register.52 As the voters approached the table
they were asked to confirm that they had voted and then
had to identify themselves by name and badge number.
Their names were checked off on a copy of the Excelsior
list-the identical list of eligible voters as the one used at
the polls by the Board's agent and observers. The registrant
was given half of a ticket and the other half was deposited
in a box.53 During the break between voting periods, the
voter eligibility list used in the raffle was in the personnel
director's office.
The Union is aware of the present position of the Board
on the issue of raffles but still would contend that this
should be a per se basis for setting aside an election. In the
alternative, the Union contends the election should be set
aside because of the particular facts of this case. The
Union argues that because the Employer was permitted to
maintain a list of those employees who had and had not
voted, the election should be set aside, particularly, as here,
the issues to be litigated at the hearing . Under these circumstances, evidence
relating to this issue was held off until later in the hearing
51 A 19-inch portable color television set,with a retail value of $370
52 1 do not credit the testimony of Bauer and Francisco Gonzalez that
Leadman Maldonado assisted in the registration. Specifically . I find the
processing was done by nonsupervisory personnel , albeit at the direction of
the Employer.
51 Not all the voters registered for the raffle Rangel testified he did not
participate in the raffle although he voted-he didn't think he had a chance
to win.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a split period election where the Employer had the
opportunity to convert that list to its own use 54
The Board has held that the use of a raffle as preelection
propaganda is not a per se basis for setting aside an
election ; its effect on the exercise of a free choice in the
election depends upon consideration of all the facts and
surrounding circumstances . 55 In a number of cases,
raffling of TV sets, without more , has not been the basis for
setting aside the elections .56 Even the fact that employees
picked up their raffle tickets immediately after they voted,
as here , has not appeared to be of particular significance in
a number of these cases.57 Appealing arguments have been
made in dissenting opinions of Board members supporting
adoption of a rule whereby gifts to the electorate by parties
to an election would be per se grounds for setting aside a
Board conducted election .58 Since I am compelled to
follow the decisions of the Board majority , I must conclude
that conducting the raffle of the TV set, even while the
election was being held , is not sufficient per se to justify
setting aside the election . However , to be considered is the
manner in which the electorate registered for the raffle. In
none of the cases involving the running of raffles does it
appear that the Board had considered or had before it the
issue presented here ; that by restricting eligibility to
participate in the raffle to only those employees who voted
in the election , the Employer was in a position to know
who had not voted . In the instant case, the Employer was
able to ascertain those of the eligible voters who had not
voted , through the use of a copy of the Excelsior list. It has
long been the policy of the Board to prohibit anyone from
keeping a list of persons who have voted, aside from the
official eligibility list used to check off the voters as they
receive their ballots.59 I agree with the Union that here, the
situation was even more aggravated-this list was available
for several hours before the second voting period started.
Applying the Board policy relating to the maintenance of
voting lists , I find that by maintaining a list whereby it
could keep an account of employees who had not yet
voted, the Employer engaged in conduct which constituted
a sufficient invasion of the laboratory conditions which the
Board so zealously demands in Board elections . Accord-
ingly , Objection 9 is sustained.
Upon the basis of the above findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Marathon LeTourneau Company, Gulf Marine
Division of Marathon Manufacturing Company, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
51 There is no evidnec that the Employer contracted any of the
employees during the interval.
55 Olympic Products, Inc, 201 NLRB 442
56 Tunica Mfg Co, Inc, 182 NLRB 729, Elgin Butler Brick Co, 147
NLRB 1624
57 Tunica Mfg Co, inc supra, Electro-Voice Inc, 191 NLRB 425
Hollywood Plastics, Inc, 177 N LRB 678
58 Electro - Voice Inc, supra , Hollywood Plastics, Inc, supra, Buzza-
Carc'ozo, 177 NLRB 589
3. By interrogating employees concerning their union
sympathies, by threatening plant closure or removal and
elimination of overtime if the Union were selected as the
bargaining representative, by threatening discharge of
employees because they favored the Union, by soliciting
employees to dissuade other employees from supporting
the Union, and by auguring the futility of selecting the
Union because the Respondent would not bargain in good
faith, Respondent 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. Objections 1, 2, 3, and 9 are meritorious and are
sustained.
6. Objection 4 is without merit and is overruled.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices , it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
As I have found that the Employer has engaged in
conduct violative of Section 8(a)(1) of the Act, and other
conduct which interfered with the holding of a free
election , thereby affecting the results of the election
conducted in Case 23-RC-3875 , I shall recommend that
the election be set aside and that Case 23-RC-3875 be
severed from Case 23-CA-4634 and remanded to the
Regional Director for Region 23 for the purpose of
conducting a new election at an appropriate time to be
fixed by the Regional Director.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER6o
Respondent, Marathon LeTourneau Company, Gulf
Marine Division of Marathon Manufacturing Company,
its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities, interests, or desires in a manner violative of
Section 8(a)(1) of the Act.
(b) Threatening plant closure or removal of its opera-
tions if a union is selected as the bargaining representative
of the employees.
(c) Threatening a reduction of overtime if a union is
selected as the bargaining representative of the employees.
(d) Threatening employees with discharge because of
their support for a labor organization to represent them.
(e) Soliciting employees to dissuade other employees
from supporting a labor organization.
(f) In an unlawful manner, predicting the futility of
59 International Stamping Co, Inc 97 NLRB 921, Belk's Department
Store, of Savannah, Ga Inc, 98 NLRB 280, Piggly-Wiggh #011 and #228
Eagle Food Centers, Inc, 168 NLRB 792.
60 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and 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
MARATHON LE TOURNEAU CO. 225
selecting a labor organization as the bargaining representa-
tive of its employees.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
right to self-organization , to form, join or assist the United
Steelworkers of America, AFL-CIO, or any other labor
organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at Respondent 's facilities at Brownsville , Texas,
in both the English and Spanish language , copies of the
attached notice marked "Appendix."61 Copies of said
notice , on forms provided by the Regional Director for
Region 23 , after being duly signed by an authorized
representative of We Respondent, shall be posted by the
Respondent immediately upon receipt thereof , for a period
of 60 consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced , or covered
by any other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative of the Act in
Case 23-CA-4634 be dismissed.
IT IS FURTHER RECOMMENDED that Objection 4 be
overruled and that Objections 1, 2, 3, and 9 be sustained. It
is also further recommended that the election held on
January 3, 1973, in Case 23-RC-3875 be set aside and a
second election be held at an appropriate time to be fixed
by the Regional Director.
tive Law Judge of the National Labor Relations Board has
found that we have violated the National Labor Relations
Act, and has ordered us to post this notice.
WE WILL N01 interrogate employees in a manner
violative of the provisions of Section 8(a)(1) of the Act
concerning their union activities , interests , or sympa-
thies.
WE WILL NOT threaten to close the Brownsville
facility or move the operations if the employees select a
labor organization to represent them as their collective
bargaining representative.
WE WILL NOT threaten to reduce or eliminate
overtime if the employees select a labor organization to
represent them as their collective bargaining represent-
ative.
WE WILL NOT threaten employees with discharge
because they favor unionization.
WE WILL NOT ask employees to speak to other
employees against supporting a labor organization.
WE WILL NOT declare that we will bargain in bad
faith with a labor organization if it is selected as the
collective bargaining representative of the employees.
WE WILL NOT in any other like or related manner
interfere with, restrain , or coerce our employees in the
exercise of the right to self-organization, to form, join,
or assist United Steelworkers of America, AFL-CIO, or
any other labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any of all such activities.
61 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions , an Adrninistra-
Dated By
MARATHON LETOURNEAU
COMPANY, GULF MARINE
DIVISION OF MARATHON
MANUFACTURING COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its prov;sions may be
directed to the Board 's Office , Dallas-Brazos Building,
1125 Brazos Street , Houston, Texas 77002, Telephone
713-226-4271.