Maremont Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1980

251 N.L.R.B. 1617 (N.L.R.B. 1980)

MAREMONT CORPORATION 1617
Maremont Corporation, World Parts Division and
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of
America (UAW). Cases 26-CA-7826 and 26-
RC-5950
September 8, 1980
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On April 15, 1980, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and a supporting brief,
and Respondent filed an answering brief to the
General Counsel's exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
In adopting the Administrative Law Judge's rec-
ommendations that the election be set aside and a
new election directed, we rely solely on the con-
duct involved in the Union's Objection 4, which is
also found to be violative of Section 8(a)(1) of the
Act.
We disagree with the Administrative Law
Judge's recommendation that the Union's Objec-
tions 1 and 6 also be sustained. The Administrative
Law Judge found that, during the period immedi-
ately preceding the election, rumors were rife
among the employees that Respondent would close
or relocate the plant if the Union won the election.
He further found that these rumors, while not at-
tributable to any official pronouncement by Re-
spondent, tended to create a general atmosphere of
confusion and fear as to render unlikely or impossi-
ble a rational and uncoerced choice by the employ-
ees, thus requiring that a second election be held.
The record indicates that the source of the
rumors were statements by Joan Howard, a non-
unit office employee. Howard was not an agent of
Respondent, nor did Respondent place Howard in
a position where the employees could reasonably
believe she was speaking for management. 2 In such
circumstances, it is well established that the Board
i The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings
2 Indeed, the record shows that various employees questioned Re-
spondent's vice president about plant closure. He responded to each of
the employees who asked that the plant would not close or relocate
251 NLRB No. 110
affords less weight to the conduct of employees
than to that of the parties to an election in consid-
ering objections to an election.a Thus, a showing
of responsibility by one of the parties can be dis-
pensed with only where the conduct involved is of
so serious a nature that it could only result in wide-
spread confusion and fear of reprisal which would
render impossible a rational and uncoerced choice
by employees. 4 The credited evidence does not
compel such a conclusion. Accordingly, we over-
rule the Union's Objections I and 6, and do not
adopt that portion of the Administrative Law
Judge's Conclusion of Law 5 relating to said objec-
tions.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Maremont Cor-
poration, World Parts Division, Nashville, Tennes-
see, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed as to any alleged viola-
tions of the Act not specifically found herein.
IT IS FURTHER ORDERED that the election held
on May 11, 1979, in Case 26-RC-5950 be, and it
hereby is, set aside, and that a new election be di-
rected therein as set forth below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
a Fabricut. Inc., 233 NLRB 1196 (1977).
' Home Town Foods. Inc.. d/b/a Foremost Dairies of the South, 172
NLRB 1242, 1246-47 (1968)
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: These
consolidated cases were heard at Nashville, Tennessee,
on November, 19, 20 and 21, 1979.' The charges and
amended charges in Case 26-CA-7826 were filed on
May 18 and on May 29, June 19, and July 13 respective-
ly by International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America
(UAW)(herein the Union or UAW). The complaint,
which issued on July 6, alleges that Maremont Corpora-
tion, World Parts Division (herein Respondent or the
Company), violated Section 8(a)(1) of the National
Labor Relations Act, as amended. The gravamen of the
complaint is that the Company allegedly made threats of
reprisal and promises of benefit in order to discourage
' All dates herein refer to 1979. unless otherwise indicated
MAREMONT CORPORATION 7
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support for the Union, and coercively interrogated em-
ployees concerning their union activities and attitude.
The Company's answer denies the commission of the al-
leged unfair labor practices.
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 26 on April
12 in Case 26-RC-5950, an election by secret ballot was
conducted on Friday, May II, among the employees of
the Company in an appropriate bargaining unit.2 The
tally of ballots showed that, of approximately 175 eligible
voters, 70 cast ballots for the Union and 99 cast ballots
against the Union. There were four challenged ballots,
an insufficient number to affect the results of the elec-
tion. The Union filed timely objections to the election.
On June 25, the Regional Director issued an order di-
recting a hearing on Objections , 2, 4, 5, 6, 7, and 8
(Nos. 3 and 9 having been overruled). Objections 1, 2, 4,
5, 6, 7, and 8 allege, in sum, that the Company threat-
ened, coerced, and interrogated employees; made misrep-
resentations; created the impression of futility of collec-
tive bargaining; conducted a campaign of fear and intimi-
dation through predictions of strikes, violence, loss of
customers, and economic detriment; and conducted cap-
tive audience meetings with small groups. The Regional
Director found that the objections raised substantial and
material issues of fact which could best be resolved
through the medium of a hearing. By an order dated
July 10, the Regional Director consolidated the unfair
labor practice and the representation cases for the pur-
poses of hearing, ruling, and decision by an administra-
tive law judge. The Regional Director also ordered that,
after decision by an Administrative Law Judge, the rep-
resentation case be transferred to and continued before
the National Labor Relations Board.
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to argue orally, and to
file briefs. The General Counsel and the Company each
filed briefs. Upon the entire record in this case, 3 and
having considered the briefs submitted by the General
Counsel and the Company, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation doing business in Tennes-
see, maintains an office and place of business at Nash-
ville, Tennessee, where it is engaged in the distribution
of automotive parts. In the operation of its business, the
Company annually receives at its Nashville location
products valued in excess of $50,000 directly from points
located outside of Tennessee, and annually ships prod-
ucts valued in excess of $50,000 directly from its Nash-
ville location to points outside of Tennessee. I find, as
the Company admits, that it is an employer engaged in
2 The unit consists of: All employees at the Company's Space Park
South facilities including receiving, shipping, packaging, picking, packing.
forklift operators, order dispatchers, quality control inspectors, shuttle
truckdriver, maintenance employees, and lead persons, excluding quality
control technicians, office clerical employees, guards and supervisors, as
defined in the Act,
3 General Counsel's unopposed motion to correct transcript is hereby
granted, with minor modifications and additions.
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND
THE OBJECTIONS TO THE ELECTION
The Company's Nashville facility is located in a com-
mercial complex known as Space Park South. The
World Parts Division is engaged in importing foreign car
parts for resale. The Company's Gabriel department, also
located at the Space Park facility, tranships shock ab-
sorbers which are manufactured by another Maremont
facility in Pulaski, Tennessee. Maremont Corporation,
National Accounts Division, also maintains a facility at
Space Park South, where it is primarily engaged in the
transportation by motor truck of Maremont products
which are distributed through the Space Park South Fa-
cility. The truck terminal personnel were not included in
the election unit.
A. The Meetings Conducted by Vice President Mack
and President Black
In February, the Union began an organizational cam-
paign which resulted in the present election proceeding.
During the election campaign which commenced on
April 12, the Company actively opposed unionization.
Raymond Mack, Maremont's vice president for person-
nel and community relations, coordinated and directed
the Company's counter campaign. During the campaign
Mack conducted a series of four meetings for the Com-
pany employees, which were held respectively, on April
24, May 1, May 3, and May 8. Supervisory personnel
were also present. All of the meetings were conducted
on company premises and on working time for which
the employees were paid. The employees were assembled
in groups of 20 to 30 for the first three series of meetings
and in smaller groups for the fourth. As a result, Mack
conducted seven or eight meetings in each of the three
series and about twice that number in the fourth series.
On May 9, Company President Rick Black spoke to as-
sembled day-shift employees. The complaint alleges that
the Company, through Mack, threatened its employees
with loss of jobs and cuts in benefits if they selected the
Union as their representative, and told the employees
that it would not bargain with the Union. The complaint
further alleges that the Company, through Black, threat-
ened the employees by telling them that how they voted
in the election would determine their relationship with
the Company, threatened them with plant closure and/or
relocation if they selected the union, told them that the
Company would not bargain with the Union, and prom-
ised them wage increases in order to dissuade them from
voting for the Union.
Former employee Shirley Vance and present employ-
ees John Barnes and Mary Hough testified for the Gen-
eral Counsel and the Union concerning the substance of
the Mack meetings. Vance, as a witness, tended to
ramble on about extraneous matters, but to become eva-
MAREMONT CORPORATION 1619
sive when confronted with a specific question. Vance
testified that she missed the first meeting on April 24,
which was her wedding anniversary, but that she attend-
ed the next three meetings conducted by Mack, and also
attended Black's speech to the second-shift employees.
Vance testified that at the first meeting she attended,
Mack talked about "the constitution," and, at the second,
he talked about strikes and showed a film about a strike.
However, on cross-examination Vance testified that she
remembered a meeting at which Mack discussed con-
tracts and negotiations, handed out copies of UAW con-
tracts, and went through them section by section. Vance
further testified that Mack talked about "one specific
thing each meeting." In fact, Mack discussed the UAW
constitution and bylaws at the first series of meetings on
April 24. At the second series of meetings on May 1,
Mack discussed the negotiating process and contracts,
and handed out copies of sample UAW contracts. At the
third series on May 3, Mack discussed strikes and strike
actions, and showed slides (not a film) of a UAW strike
at a Maremont facility in Saco, Maine. At the fourth
series on May 8, which took the form of informal gather-
ings, including serving of refreshments, Mack briefly
summarized the first three series of meetings. If in fact
Vance missed the first series, then it is evident that she
was testifying concerning something of which she had
no personal knowledge. It is also evident from Vance's
testimony that, if she was present at the second meeting
(concerning negotiations and contracts), she was not par-
ticularly attentive to what Mack had to say. This failure
on her part is a crucial one, because the principal thrust
of her testimony concerned what Mack had to say on
the subject of negotiations. Vance testified that at the
meeting concerning strikes, following the "film," Mack
said that "if we voted in a union they would strike be-
cause they did not have to negotiate with the Union, that
they could" (or at another point in her testimony,
"would") "say no, no, no to all of their demands, that he
didn't have to negotiate with them and if they went out
on strike they had a right to hire people in their place."
John Barnes initially testified that he was present at three
of the meetings conducted by Mack, but subsequently as-
serted that he was present at all four of the meetings
conducted by Mack. Barnes testified that, at the first
meeting "at the last of April," Mack talked about strikes
and showed pictures of the strike at Saco. Barnes testi-
fied that at this meeting Mack said that there was no
Federal law which required the Company to negotiate
and "no, no, no, no." Barnes testified that at the second
meeting Mack handed out copies of contracts and said
that "we would negotiate our wages at minimum wage."
Barnes testified in sum that at both the third and fourth
meetings Mack summarized the matters which he had
previously discussed. Barnes testified that he could not
recall a meeting when Mack talked about the UAW con-
stitution and rules, although he did recall that Mack used
a board to show that paying dues was a waste of money.
In contradiction of Vance's testimony, Barnes said that
Mack did not discuss a different subject at each meeting,
but that it was "over and over and over." It is evident
from Barnes' testimony that he was badly confused and
mistaken about the sequence and substance of the meet-
ings conducted by Mack. 4 At the close of each presenta-
tion, Mack conducted a question and answer session
which was not limited to the subject matter of Mack's
presentation. However Vance worked on the second
shift in the Gabriel department and Barnes worked on
the first shift in packaging and receiving. Therefore it is
evident that they were not present at the same meetings
and, as indicated by their testimony, that the alleged "no,
no, no" statement was contained in one of Mack's formal
presentations. As will be discussed, the employees' testi-
mony in this regard was a misconstruction of statements
made by Mack in his third presentation.
Mary Hough, the General Counsel's third witness con-
cerning the Mack meetings, testified that, together with
Barnes, she attended all of the Mack series of meetings.
According to Hough, Mack said that "if we got a union
in they weren't going to negotiate with us and if they
did they would come back with no more than we left
with." On cross-examination Hough testified at one point
that Mack said the employees "would" get less or no
better benefits, and at another point that Mack said they
"could come out with less." Hough also testified that,
when Mack said that the Company would not negotiate
with the Union, he showed the employees copies of
UAW contracts. If in fact Mack indicated to the employ-
ees that the Company had no intention of negotiating
with the Union, or of making any concessions, then it is
difficult to see why Mack would then proceed to show
sample UAW contracts. Rather it is evident that, as testi-
fied by Mack, he was arguing that the contracts which
UAW showed to the employees were not truly illustra-
tive of what the employees could expect from collective
bargaining, because they were national agreements, and
that the samples shown by Mack involved situations
which more nearly resembled that of the Company. In
sum, Mack was appraising the probable results of collec-
tive bargaining, rather than repudiating the concept of
collective bargaining. Moreover, as will be discussed,
Hough's testimony concerning the speech by Company
President Black presented even more serious questions
concerning the probative value of her testimony.
Vice President Mack was himself the Company's prin-
cipal witness concerning his own meetings and the
speeches by President Black. Employee Judy Thomas
also testified for the Company concerning the Mack
meetings and Black's speech to the day-shift employees,
and employee Emma Norris testified for the Company
concerning Black's speech to the second-shift personnel.
Norris demonstrated a good recall of Black's speech.
Thomas, in particular, appeared to be candid, and dis-
played a good recollection. She compared favorably
with the General Counsel's witnesses, who tended to be
cursory or to forget all but what they wanted to talk
about. Mack testified in detail about his presentations and
that of Black, and I am not persuaded that any reason
has been shown to discredit his testimony. Mack testi-
fied, in sum, that at the first series of meetings he dis-
cussed the Union's constitution and bylaws. He brought
4 Barnles has a s pecch Impedimenlt Howeer. he mpressed me as a
bright person I do not beliese that his confusion stemmed from any in-
abilit) ito arliculItc hlii telihmony
MAREMONT CORPORATION
1620 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of the same, and used a flip chart to go through
various sections. Mack testified that this was tihe only
subject matter which he discussed at the first meetings.
Mack further testified that, at the second series of meet-
ings, he discussed the negotiating process and contracts.
He distributed copies of UAW contracts, and again used
a flip chart to discuss various sections. According to
Mack, he said that if a union comes in the Company
must bargain in good faith, but this did not mean that the
Company must agree with all of the Union's proposals.
By way of illustration, Mack said that if the Union wants
a raise of $8.00 an hour "I have a right to say no," and if
the Union wants 20 (years) and out on a pension plan
and "we think its excessive I have a right to say no." I
find that it was this portion of Mack's presentation
which Vance and Barnes misstated as a "no, no, no" to
any and all union demands.5 Mack further testified that
he quoted a court of appeals decision to the effect that
there was no guarantee once negotiations started, i.e.,
that the employees could come away with more, the
same, or less. Mack testified that he said that everything
was open, but denied that he said that bargaining would
start from the minimum wage or from scratch. Accord-
ing to Mack, he said that an impass could occur, and that
in such event the Union could either withdraw its
demand or strike to get it. Mack also said that there was
no limit on the time it takes to negotiate a contract.
Mack testified that at the third series of meetings he dis-
cussed strikes and strike actions. Mack discussed and
showed slides of the strike at Saco (which apparently in-
volved damage to cars and mass picketing), and also
taiked about strikes in the Nashville area. Mack ex-
plained, in sum, that economic strikers, unlike unfair
labor practice strikers, could be replaced, and that in
Tennessee strikers were not eligible to receive unemploy-
ment compensation. Mack testified that at the fourth
series of meetings he briefly summarized the first three
presentations, and did not bring up any new matters.
Mack categorically denied that he said at any meeting
that the Company would not bargain or negotiate, or
would force the Union into a strike, or that a strike was
inevitable. Mack further testified that, in response to in-
quiries from employees, he said that World Parts would
not move or close, but that he did not recall that the
question came up at any of the meetings. Employee
Thomas, in her testimony, corroborated in material part
the testimony of Mack. Thomas testified that Mack
never said that negotiations would result in a strike, or
that the Company's position would be "no, no, no," or
that bargaining would start from the minimum wage or
from scratch. I credit Mack and Thomas. I find that
Mack's presentation fell with the ambit of permissible ar-
gument under Section 8(c) of the Act and that his pre-
sentations, whether viewed in their entirety or specifical-
ly, did not contain any express or implied threat of a re-
fusal to bargain, loss of jobs or benefits, or inevitability
of a strike if the employees selected the Union. As there
is no allegation or evidence that Mack made such threats
s Mack, in his testirnony denied the "no, no. o" remark attrihuted to
him by Vance and Barnes
on any other occasions, I am recommending that para-
graph 8 of the complaint be dismissed.
Vance, Hough, and employee Ronnie Greeson testified
as witnesses for the General Counsel and the Union con-
cerning President Black's speech. Vance was present at
the first-shift meeting and Greeson and Hough were
present at the meeting for second-shift personnel. Ac-
cording to Vance, Black said that the way they voted
would determine their relationship with Maremont and
that he would not tolerate a union in World Parts, espe-
cially UAW, which boasted of its bargaining power.
Vance testified that Black said the Company had to
move a UAW represented plant in Harvey, Illinois, be-
cause of "union-related problems," specifically, that the
employees stood around and did not work, even in the
presence of customers, and the plant lost customers. Ac-
cording to Vance, Black said that World Parts was his
pet project, and that he moved Gabriel to Nashville be-
cause of World Parts, and would not hesitate to move it
out. Black complained because the Union talked about
how much money he made. According to Vance, Black
said that if the Union got in he would personally have to
approve every raise, and the employees would not get
another cent, but that, if there were no union and the 7-
percent guidelines were lifted, he would see that they
were the first facility (or one of the first facilities) to get
a raise. Black said that the Company had to adhere to
the guidelines because the Saco plant had a government
contract. Vance testified that she did not pay much at-
tention to Black's discussion of the guidelines because
she was listening for threats. Ronnie Greeson testified
that after talking about his background Black said that he
founded World Parts and could get rid of it, and if there
were any labor problems he could get rid of them. Ac-
cording to Greeson, Black said that he would not negoti-
ate or sign a contract here because of the labor problems
in Harvey, Illinois. Black said that World Parts lost
money for 6 years and this was the first year they made
money. According to Greeson, Black said that he would
find out their position depending on the result of the
election. Greeson testified that he did not remember
whether Black mentioned that UAW boasted about its
bargaining power, or what Black said about wage-and-
price guidelines. In fact these matters occupied a signifi-
cant portion of Black's speech, particularly as the latter
bore on the matter of whether the employees could
expect a wage increase. Indeed, in his investigatory affi-
davit to the Board Greeson candidly admitted that he
did not remember much of what Black said because he
was tired of meetings by that time. Mary Hough testified
that, after giving his background, Black said that he
would not negotiate with the Union, and that "Mare-
mont Corporation" was "his baby, his brain, his idea,"
and he was not going to let a union come in. In fact,
World Parts, and not the parent Maremont Corporation,
was Black's brainchild. Hough was unable to explain
how Black went from giving his background to saying
that he would not negotiate with the Union, although
Black spoke for about an hour. On cross-examination
Hough insisted that she could not remember anything of
substance which he said other than the alleged threats,
MAREMONT CORPORATION ,1621
and she kept falling back upon her direct testimony. Ac-
cording to Hough, Black said that he would get rid of
the "troublemakers," that there were several alternatives,
and he would discuss the matter at a later date. No other
witness indicated that Black made such a remark. How-
ever, Shirley Vance attributed a similar remark to Oper-
ations Manager Don Hinson, who spoke up at one of the
meetings conducted by Mack. This matter will be dis-
cussed, infra. It is evident that apart from the accuracy
of Vance's testimony, only Hinson, and not Black, made
such or a similar statement.
Vice President Mack was present at both of Black's
speeches, and he testified in detail concerning Black's
presentation. According to Mack, they decided that
Black should speak to the employees because the Union
had made an issue of his income and contract. Mack as-
sisted in preparing the speech. Prior to each speech there
was a reception at which employees were permitted to
ask questions; however there was no question-and-
answer period after the speech. After being introduced
by Hinson (who also introduced Mack at the earlier
meetings) Black described his background; in sum, that
he was a self-made man who was not ashamed of his
income. Black said that World Parts was his idea, that he
felt close to it, that for 6 years it was not as profitable as
expected, but that in 1979 it made a substantial profit and
UAW suddenly appeared on the scene. Black then dis-
cussed his experience with UAW at the Harvey plant.
Black asserted that productivity was low, quality was
bad, there were equipment problems, and he had to
apologize to customers for people standing around and
doing nothing. Black asserted that the Union was not the
only problem, nor was it part of the problem, but that it
would not lend a hand in rectifying the problem. Ac-
cording to Black, the financial situation got worse, and
he had to close the plant and transfer the manufacturing
operations to Loudon and Ripley, Tennessee. Black then
went on to assert that the Union bragged about its bar-
gaining power, and that its president had said that the
Government should stay out of negotiations. Black as-
serted that the Company was held to the guidelines, and
that they were not voluntary, because the Saco plant had
a government contract and the Government had asked
the Company for a compliance letter. Black argued that
the guidelines affected all personnel, and complained that
the price guidelines hurt the Company because of price
increases in steel and oil. Noting the pendency of law-
suits involving the guidelines, Black said that, if the
guidelines were out, World Parts would be one of the
first companies to have its situation reviewed, if that
were possible. Black said that be would come again to
see the employees, without indicating when, and closed
by asking the employees to support the Company and to
vote no. Mack categorically denied that Black said that
the Company would not negotiate or sign a contract, or
would close or move if the Union won the election. or
connected the Company's action on the guidelines to the
result of the election. Mack's testimony was corroborat-
ed in material part by employees Thomas and Norris.
The employees further testified, in sum, that Black said
that the employees had to decide whether they wanted
to maintain a direct relationship with management or
wanted a third party to represent them. According to
Thomas, Black said that if there were a strike or labor
dispute he would do what he had to do to maintain the
service level, and if necessary to move operations to an-
other distribution center.
I credit the testimony of the company witnesses. As
with the Mack presentations, I find that Black's speeches
fell within the ambit of permissable. noncoercive argu-
ment. Assuming, arguendo that Black said that the way
the employees voted would determine their relationship
with the Company, it is evident in context that Black
was referring to the fact that the Union constituted a
third party which would represent the employees. There-
fore, Black's statement did not constitute a threat of
reprisal. Black's discussion of the Harvey, Illinois, plant
constituted permissible argument. Indeed, Black made
clear that he was not saying that unionization resulted in
closure of the Harvey plant. As the Company could law-
fully transfer all or a part of its operations in order to
avoid the impact of a strike, Black's statement to this
effect did not constitute a threat of plant closure or relo-
cation. As Black made clear that the Company's policy
toward the guidelines was not conditioned on the out-
come of the election, I find that his statements did not
constitute either a promise of wage increases if the Union
lost the election, or a threat that Black w.ould have to
approve all increases if the Union soon the election. s
Therefore, I am recommending that paragraph 9 of the
complaint be dismissed.
John Barnes testified that at the second Mack meeting.
when Mack was talking about picket lines and violence
(it was actually the third series of meetings), Operations
Manager [inson commented that "if there was any trou-
ble in this union drive he would get id of the trouble-
makers." Barnes testified that he did not know how the
matter came up, although it is c, ident from the frmat of
the meetings that it was probably i response to a com-
ment or question by an employee. Hinson testified that
during the third series of meetings, when strikes were
discussed, employees epressed concern about their per-
sonal welfare and property. According to Hinson. he
stated that the Company "would take every step to pro-
tect them in their property, as long as they were on
Company property, to the fullest of our disciplinary pro-
gram if necessary" Hinson testified that he did not use
the word "trouble maker." Vice President Mack, who
was of course present throughout the meetings, testified
that Hinson said that he did not care which side a person
was on, but that he would not "tolerate any disruption ot
any type of violence or trouble-making on the Company
premises . . . and that if people were apprehended doing
that then all the disciplinary action available to us under
our policies and programs would be enforced" Mack
testified that Hinson was responding to employee ques-
tions and comments following the slides of the Saco
strike. As the third series of meetings concerned the sub-
ject of strikes, picketing and picket line violence, it is
th6 l General Counsel does nol co)nlend tha a tatement by an em-
ploler that it ill adhere to the age-price guldclines regard!ess of the
result of an election i tlaltanil i. t an unr, :lwful hrea: that it ,.ill not
bargain over wage,
MAREMONT CORPORATION I  21
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evident that Hinson probably made his statement in re-
sponse to questions or comments about these topics. In
contrast there is no evidence, at least not as to the third
series of meetings, that employees asked questions or
made comments about "trouble in this," i.e., the current
"union drive." Moreover, as between Mack and Barnes,
I find Mack to be the more reliable witness. I credit
Mack. I find specifically that Hinson used the word
"trouble-making," but that in context Hinson was refer-
ring to strike violence. An employer has the right to uti-
lize its disciplinary procedures in a nondiscriminatory
manner against employees who engage in violence or
similar misconduct on the employer's premises. In es-
sence, this is all that Hinson said. Therefore, I find that
Hinson's statement did not constitute a threat of reprisal
against union adherents.
B. Additional Allegations of Misconduct or Unlawful
Statements by Supervisory Personnel
Former employee Walter (Rocky) Adams, who was
presented as a witness for the General Counsel and the
Union, testified concerning a conversation which he had
with Hinson at 3:10 p.m. the day of the election. Adams,
who worked on the day shift, had voted and was leaving
the plant. Adams initially testified that he asked Hinson
whether he was "going to move the plant," and Hinson
answered that he had to. Adams next testified that he
asked Hinson whether he was "getting ready to load it
up right," and that Hinson answered "if he had to."
Thereafter, Adams testified that he asked if Hinson was
"going to move the warehouse." Finally, Adams testified
that he could not remember his exact words. In sum,
Adams gave three different versions of his brief ex-
change with Hinson, none of which indicated on their
face that Hinson threatened plant closure or removal if
the Union won the election. Hinson testified that Adams
asked if "we were going to load all those trucks," and he
answered that "we sure were." At the time, the Compa-
ny was actively engaged in removing a substantial
amount of goods which was damaged in a flood which
occurred on May 4. This matter will be further discussed
in connection with the presence of trucks on the Compa-
ny's parking lot, which matter constitutes a basis for one
of the Union's objections to the election. Hinson testified,
in sum, that he did not know what Adams had in mind. I
credit Hinson, and I find that Hinson did not threaten
Adams with plant closure if the Union won the election.
On the contrary, assuming that Adams had such an idea
in mind, Hinson's answer indicated that the trucks were
not on the premises as a show of force, but were there
for the legitimate purpose of transporting the Company's
goods, without regard to the outcome of the election. As
the foregoing are the only allegations involving Hinson,
I am recommending that paragraph II of the complaint
be dismissed.
Darrell Jones is packaging and receiving supervisor on
the first shift. The complaint alleges that, on or about
March 21, Jones promised an employee increased bene-
fits to dissuade the employee from supporting the Union,
and threatened its employee with loss of benefits if the
employees selected the Union. Employee Gail Goad re-
turned from medical leave on March 19. Goad had a
"bid job," meaning one which is open to bid by all com-
pany employees when a vacancy occurs in that type of
job. Goad testified that, a few days after her return to
work, Jones, who was her supervisor, summoned her to
his office. According to Goad, Jones talked about the
Union, and said that conditions were so bad at a union-
ized plant that they had to close or move it. Goad testi-
fied that Jones asked her to talk to the people against the
Union, that this would help both her and the Company,
and that the Company "would reclassify my job since I
had a bid job." On cross-examination Goad testified that
Jones said the Company "could" reclassify her job. Ac-
cording to Goad, she said that she was afraid to get in-
volved in the Union. (Goad had supported a union in a
previous organizational campaign.) Jones testified that
shortiy before Goad returned from medical leave she
called him at his home and informed him that she would
be returning to work. According to Jones, Goad said
that she wanted him to know that she had nothing to do
with the union activities, and that she had learned her
lesson the last time. Jones said that he had previously
worked at a unionized plant for another employer, that
there was a long strike, and that after the strike the plant
closed. Jones did not say that the same thing would
happen at Maremont. Jones further testified that, on the
day Goad returned to work, she asked to see Jones in his
office, and repeated her disavowel of union support.
Jones testified that he thanked her for speaking up for
the Company. Jones, in his testimony, denied that he dis-
cussed her job, or said that the plant would close if the
Union came in, or asked her to speak to the employees
or get votes for the Company, or promised her a better
job. Assuming that Jones said that Goad's job would or
could be reclassified, it is difficult to see whether this
should be regarded as a promise of benefit or a threat of
reprisal. The complaint seemingly, and inconsistently, al-
leges both. In fact, it is difficult to see why reclassifica-
tion would make any difference to Goad, since the bid-
ding procedure was pertinent only to jobs which were
vacant. In sum, I find that the alleged promise or threat
makes no sense when considered in the context of the
conversation described by Goad. I credit Jones, whose
version of the conversation does not contain any threat
of reprisal or promise of benefit. Therefore, I am recom-
mending that paragraph 7 of the complaint be dismissed.
Shirley Vance testified that on election day, at or
about 3:30 p.m., she was with a group of about 20
second-shift Gabriel department employees who were
waiting to proceed to the voting area. According to
Vance, their supervisor, Kiatisak Tantisook (known to
employees as Mr. Tai) said that the Union was going to
lose, and that the men could not afford to lose their jobs
if the Union won. Vance, who was wearing a union hat
and buttons, asked him to explain. According to Vance,
Tantisook went on to say that if the Union won the
Company would move the plant. When Vance disregard-
ed his answer, Tantisook allegedly repeated his state-
ment. Although many employees allegedly were present,
only Vance and Tantisook testified concerning the al-
leged conversation. Tantisook testified that he assembled
the employees for the purpose of their proceeding to the
----- -- -
MAREMONT CORPORATION 1623
voting area. However, acting on the instructions of Per-
sonnel Manager Betty Jean Shaw, he did not accompany
them to the voting area, nor did he talk to them before
they voted. He denied that the conversation alleged by
Vance took place. Tantisook testified that after the vote
he told her that the Company won, that she expressed
disbelief, and that he obtained confirmation of the result.
Tantisook impressed me as a candid witness. In contrast,
as indicated, I have some reservations about Vance's
credibility. I credit Tantisook.
Former employee Viola Alred, who worked in World
Parts on the second shift, testified that on the evening
before the election she had a conversation with her su-
pervisor, Lloyd Land, and that Supervisor Tantisook
was present. Land offered to give Aired a ride on a golf
cart which was used for transportation within the build-
ing. According to Aired, Tantisook asked how she was
going to vote, and Land went on to say how good the
Company was to the employees, and that if the Union
got in the Company would move. However, in an affida-
vit which Ared gave to the Company's attorney who
was investigating the Union's objections to the election,
Alred stated that, except with respect to President
Black's speech, no company supervisor or official ever
said that the plant would move or close if the Union
won. Aired gave this affidavit voluntarily. Tantisook tes-
tified that he knew Aired only to say hello, and that he
never talked to her about the election or asked her how
she was going to vote. Land testified that, on the eve-
ning before the election, he told Aired that he was going
up front, and asked her if she wanted to ride on the golf
cart. According to Land, she asked what he thought
about the union situation. Land answered that, in his
opinion, f the Union came in he did not feel that he
could still function as a supervisor, that he probably
would not be happy in that capacity and probably would
find something else. Land testified that no one else was
present at this conversation. I find that Alred's affidavit,
given shortly after the election and before the issues
became apparent to her, is a more accurate reflection of
the truth than her testimony at the present hearing. I
credit Tantisook and Land. I further find, on the basis of
Land's testimony, that he made clear to Alred that he
was expressing his own personal opinion concerning the
Union, and that his opinion as expressed did not contain
any express or implied threat of reprisal.
Viola Aired testified, without contradiction, that about
May 8 she was talking to several other employees when
Supervisor Land came around with several "Gabriel"
hats with "vote no" buttons on them. Land handed one
hat to Aired, saying "I have to give this one to you,"
and then passed out hats to the other employees. The
General Counsel and the Union contend that, by distrib-
uting the hats, Land interrogated the employees concern-
ing their union membership, activities, and desires. Alred
had been wearing a union hat, and therefore Land evi-
dently had no need to interrogate her concerning her
views. However, the evidence fails to indicate that Land
knew the views of all of the other employees under his
supervision. An employer may lawfully, and in a nondis-
criminatory and noncoercive manner, make proemployer
buttons available at a neutral location where the employ-
ees are not under the surveillance of management. How-
ever, the Board has held that it is per se unlawful for a
supervisor to engage in the distribution of such buttons.
As explained in Pillowtex Corporation, 234 NLRB 560
(1978):
When employees are approached by a supervisor
and offered buttons such as the ones in issue, they
have only two alternatives: accept the buttons and
thereby acknowledge opposition to the Union; or
reject them, and thereby indicate their support of
the Union. In either case, the fact that the employ-
ees must make an observable choice is a form of in-
terrogation. Furthermore, should employees feel
compelled to choose a button containing a message
opposite to their views, that is coercion and it like-
wise interferes with the election.
See also Black Dot, Inc., 239 NLRB 929 (1978). There-
fore, the Company, through Land, violated Section
8(a)(1) of the Act through interrogation, by distributing
the procompany hats and buttons to its employees. In
Super Thrift Markets, Inc. t/a Enola Super Thrift, 233
NLRB 409 (1977), the Board held:
Our normal policy is to direct a new election when-
ever an unfair labor practice occurs during the criti-
cal period since "[c]onduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an
election." Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786-87 (1962). The only recognized
exception to this policy is where the violations are
such that it is virtually impossible to conclude that
they could have affected the results of the election.
In the present case, the employees immediately involved,
i.e., the second shift in World Parts, comprised a signifi-
cant number of the employees in the voting unit. More-
over, the wearing, or even the display or possession of
antiunion insignia which were distributed in an unlawful
manner, could have a bandwagon effect which in turn
predictably would discourage employee support for the
Union. In these circumstances, the Company's unlawful
conduct may have affected the outcome of the election.
Therefore, I find that the Company, by interrogating its
employees concerning their attitude toward the Union,
improperly interfered with the conduct of the election.
Employee Dorothy Crump testified concerning con-
versations which she had with the second-shift packaging
supervisor, Richard Crabtree. The complaint does not
allege that Crabtree engaged in any unlawiul conduct.
However, the Union presented Crump's testimony in
support of its Objections I and 6 (alleged threats and
campaign of fear and intimidation). Crump testified that
she had many conversations with Crabtree about the
Union. According to Crump, Crabtree asked why she
supported the Union, and she answered that it was be-
cause of the way she was treated on the job. Crabtree
said that the employees would be replaced if they went
on strike. Crump testified that, at or about 5 p.m. on
election day, she asked Crabtree if she could go to watch
the vote count, and Crabtree answered that she could
MAREMONT C RPORATION 23
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but "we may not be here when you come back. The
doors may be locked." In fact, the Company gave a
party that night, and the second-shift employees were
permitted to leave early. Therefore, even if Crabtree
made the alleged statement, it is not evident that a threat
of plant closure was involved. Moreover, in an affidavit
given by Crump to the Company's attorney, she stated
that no supervisor or company official ever interrogated
her or questioned her about her union activity or the
union activities of other employees. Crump admittedly
made changes in the statement, and was permitted to
read the statement in the absence of the Company's at-
torney. I do not credit Crump's assertion that she did not
sign the statement (although it contains her signature), or
that she could not read it because she was on medication.
I find that Crump gave the statement voluntarily. Crab-
tree testified that he had many conversations with
Crump about the Union, but that he had no reason to
question her about the Union because she was outspo-
kenly prounion and freely expressed her views at every
opportunity. Crabtree testified that she said she was mis-
treated by previous supervisors, and he asked why she
held that against the Company, since they were no
longer at the plant. Crump replied that Crabtree might
not always be her supervisor, and she might get a bad
one. Crabtree testifed that on election day Crump asked
to watch the ballot count, and he gave her permission to
do so as soon as the voting was over. Crabtree, in his
testimony, categorically denied that he ever said or sug-
gested that the plant might close or the the doors might
be closed. I credit Crabtree. I further find that Crump
freely engaged in give-and-take discussions about the
Union with Crabtree. In fact, on the basis of Crabtree's
testimony, it is evident that he did not question Crump
about her union activity. Rather, in the course of a con-
versation, Crabtree simply asked her about a grievance
which she had voluntarily expressed to him.
Paragraph 14 of the complaint alleges that, on the day
after the election, at the premises of Ryder Truck Lines,
Supervisor William Frasch threatened an employee by
saying that the Company would have moved if the
Union won the election. In fact, Frasch was and is a su-
pervisor of Maremont's National Accounts Division
which, as indicated, is engaged in trucking operations at
the Space Park facility. Former employee Willard Bailey
testified in support of this allegation. On Saturday, May
12, Frasch found it necessary to return two rented trac-
tors to Ryder. Frasch asked his supervisor, Robert
Briley, to arrange for a World Parts employee to assist
him to move the tractors. Briley sent over Bailey. Frasch
drove one tractor, Bailey drove the other, and Briley fol-
lowed them in his car. After they returned the tractors,
Briley drove Frasch and Bailey back to the plant. Ac-
cording to Bailey, Frasch said that "we had done the
right thing by losing the election because if we had won
we wouldn't have had a job." Bailey also testified that
Frasch said that Operations Manager Hinson instructed
him to get all his equipment to the H Building (at Mare-
mont) on Friday because if the Union won they were
fixing to move the plant. Bailey did not indicate that
Briley was present when Frasch made these statements,
nor did he indicate whether the statements were made at
Ryder, in Briley's car, or at Maremont. However, in an
affidavit which Bailey gave to the Company's attorney,
Bailey stated that no supervisor or company official ever
threatened that the plant would close down or move if
the Company won the election, or that the Company
would never sign a contract. Bailey's statement indicated
his understanding that his "participation or lack of par-
ticipation in this investigation will not in any way affect
his job or his rights as an employee." Bailey initially tes-
tified that he was told that if he did not sign the state-
ment he would be fired. However on further examination
it became evident that Bailey was referring to a subse-
quent and different investigation concerning alleged theft
and drug use at the plant, in which Bailey was asked to
take a polygraph test. (Apparently this later investigation
led to his eventual resignation from employment). I find
that Bailey gave his statement voluntarily, and that the
statement is a more accurate reflection of the truth than
his testimony in this proceeding. Frasch testified that on
the return trip from Ryder he or Briley said that they
were glad that it was over and glad it turned out the
way it did, and Bailey answered that he might not have
wanted it to turn out this way. Frasch in his testimony
denied the alleged statements attributed to him by
Bailey. Frasch further testified that, on arriving at
Ryder, all three immediately proceeded to turn in the
tractors, and they had no occasion to engage in conver-
sation at Ryder. In the circumstances of the trip, it is dif-
ficult to see when or how Frasch and Bailey could have
had a conversation without Briley being involved. I
credit Frasch, including his testimony that the tractors
had been used to haul trailers between Pulaski and Nash-
ville and within the Space Park facility.
C. The Alleged Threats by Joan Howard, and the
Presence of Trucks on Election Day
The complaint alleges that "assistant personnel man-
ager" Joan Howard was and is a supervisor and agent of
the Company, and that in that capacity on various occa-
sions she threatened employees that the Company would
not negotiate with the Union and would close or relo-
cate the plant if the employees selected the Union as
their representative. In fact, Howard was and is one of
three secretaries who work in the personnel office under
the immediate supervision of Personnel Manager Betty
Jean Shaw. Until June 10 her title was that of general
clerk. Some of the General Counsel's employee witnesses
referred to Howard as "assistant personnel manager."
However they admitted, in sum, that this was simply
their assumption, based on the fact that Howard assisted
Shaw and performed some of Shaw's functions.
Howard's primary reponsibility was paperwork, princi-
pally the processing of insurance claims. Because of her
work in this area, Howard was able to answer employee
questions about such claims, i.e., questions which other-
wise would have to be referred to Shaw. Howard also
took care of the office files, maintained payroll records,
typed correspondence, answered and placed telephone
calls, and performed miscellaneous tasks such as putting
up notices on bulletin boards. Howard nominally has an
annual salary. However she is paid on an hourly basis,
MAREMONT CORPORATION 1625
and she punches a timecard which must be approved by
Shaw. The record is virtually devoid of any indicia of
supervisory authority on the part of Howard. Howard
does not hire, fire, discipline, or grant time off to em-
ployees, or effectively recommend such action, nor does
she responsibly direct the work of any employee. To the
extent that she is involved in any such matters, her in-
volvement is of a routine or clerical nature, such as
maintaining telephone contact with job applicants and
checking their prior employment references, receiving
calls that an employee will or will not be in to work, and
taking notes at supervisory meetings. However Howard
was not present at management meetings concerning the
election campaign. Howard does not even exercise super-
visory authority in Shaw's absence; rather such authority
is exercised by Vice President Mack, Operations Man-
ager Hinson, or department supervisors. Howard has
access to confidential information; specifically, personnel
files of employees other than those under the direct su-
pervision of Shaw. On June 10, about I month after the
election, Shaw was given a promotion and her title was
changed to that of personnel administrator. However,
this change was in recognition of the fact that for some
time she had, in addition to her other duties, been devot-
ing an average of 4 days each month to assisting Shaw in
the preparation of turnover analysis, unemployment and
expense reports for submission to Maremont's home
office. To this extent Howard also had access to confi-
dential information. However, access to confidential in-
formation does not convert an employee into a supervi-
sor; nor for that matter does it necessarily qualify the
person as a confidential employee. Ohio State Legal Serv-
ices Association, 239 NLRB 594, 598-600 (1978). I do not
regard as significant, on the question of supervisory
status, the fact that Howard dressed well, or worked in
close proximity to the personnel manager, or may have
sat near supervisory personnel at the meetings conducted
by Mack and Black. Such factors are characteristic of
office clerical employees, who normally are not included
in an election unit of production and maintenance em-
ployees. However, these factors do not operate to clothe
the clericals with supervisory status or apparent authori-
ty to speak on behalf of management. I find that Howard
was an office clerical employee and was not a supervisor
within the meaning of the Act. 7
I further find that the totality of the evidence fails to
indicate that the Company placed Howard in a position
where the employees could reasonably believe that she
was speaking for management by saying that the Compa-
ny would not bargain or would close or move if the
Union won the election. First, Howard normally operat-
ed as a conduit between the Company and the employees
only in a limited area. Howard gave technical informa-
tion to the employees, usually with respect to insurance
claims. However the employees did not look to her as a
7 Howard did not testify as a witness in this proceeding, although her
written descriptions of her job duties were presented in evidence. Jean
Shaw testified for the Company concerning Howard's duties and authori-
ty, and several former and present employees testified for the General
Counsel. As Howard's status was in dispute, no inference is warranted
against any party by reason of its failure to call Howard as a witness con-
cerning her status
source of pronouncements on major company policy.
Second, Personnel Manager Shaw testified that she never
asked Howard to campaign for the Company and gave
her no instructions with respect to the campaign other
than to see that the insurance claims and payroll were
handled properly and promptly. I credit Shaw. There-
fore Howard had no actual authority to speak on behalf
of the Company. Third, in a series of meetings previous-
ly described, high company officials carefully and in
great detail spelled out the Company's attitude and
policy toward the Union, and Vice President Mack ex-
pressly told employees who asked that the Company
would not close or relocate. At the four series of meet-
ings conducted by Mack, the employees were given full
opportunity to ask questions. In the absence of any credi-
ble evidence that any responsible company official or
even supervisor indicated that the Company would not
bargain or would relocate or close in the event of a
union victory, the employees could not reasonably look
upon an office clerical employee as a management
spokesman when she made statements which expressly or
impliedly contradicted those which were made by the
high company officials. Fourth, the testimony of the
General Counsel's witnesses indicates that, on all but one
occasion when Howard made the statements in question.
no supervisor or other representative of management was
present. On that one occasion, Quality Control Supervi-
sor Jerry Frisley was present when a group of employees
were engaged in conversation. Employees Gail Goad,
Mary Hough, and John Barnes testified in sum that
Howard said that if the Union came in there would be
no jobs because World Parts would move to Smithville
and Gabriel to Pulaski. However all of the witnesses
agreed that at this point Frisley told Howard to hush up.
This can hardly be characterized as condonation or ap-
proval of Howard's remarks. In all the circumstances, I
find that Howard lacked either actual or apparent au-
thority to speak on behalf of the Company, that she was
expressing her own opinion as an employee, and that
therefore the Company did not violate the Act or inter-
fere with the election through her remarks. See fMorse's
Foodmart of New Bedford, Inc., 230 NLRB 1092, 1093-94
(1977). 8
The final matter at issue in this case is not alleged in
the complaint, but was presented by the Union in sup-
port of its Objection I as a threat of plant closure or re-
moval. That allegation concerns the presence of trucks
on the Company's parking lot on the day of the election.
Several employee witnesses for the Union testified in
sum and without contradiction, that rental trucks were
parked on a company parking lot near the polling place
" The complaint also alleges that the Company, through Howard
"threatened its employees by associating Union and Soviet Union and
Communism" In fact, according to the testimony of Shirley Vance
Howard spoke up at one of the meetings conducted by Vice President
Mack and said that it would be like Russia to take away the right to
sork law The General Counsel contends that the remark was inflamma-
tory and coercive because the Company hs a number of employees from
Laos, i e, refugees from communism. As indicated. Howard was speaking
for herself as an employee Assuming. urguendo that the remark wa,
made by a company supervisor or official, I swould nesertheless find that
the statment constituted permissable argument See Olin Conductorr, Olin
Marhieson Chemical Corporation. 85 Nl.R1 467. 482 (19701
M A R E M O N T C O R P O R A T IO N 6 2 ~ ~ ~ ~
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the election. The presence of rental trucks at the
Company's Space Park facility was not unusual, as the
Company frequently used rental trucks, including driv-
ers' as well as the Company's own equipment and driv-
ers; i.e., the equipment and drivers of Maremont's Na-
tional Accounts Division. Their sustained presence on
the parking lot was unusual, as the trucks would normal-
ly be backed up at loading docks. However, even apart
from the election, the circumstances of the Company's
operations in May were also unusual. On and about May
4 flood waters damaged the premises and goods of the
Company and of other businesses in the Space Park com-
plex. As a result for the next 6 to 8 weeks the Company
was engaged in removing damaged goods from its prem-
ises. The Company did not have enough trucks to handle
both its normal operations and the removal of damaged
goods. As a result, the Company utilized rental equip-
ment and drivers to a greater degree than normal. Other
firms in the Space Park complex were doing likewise.
This sometimes caused delays in the loading process.
William Frasch, who managed the trucking operations
for Maremont, testified that on election day Company
Operations Manager Hinson called to tell him that there
was a traffic jam of trucks on the premises. Frasch insist-
ed that he had to get the equipment moving, but Hinson
said that could not alleviate the situation until after the
election, because the employees were given time off to
vote. Frasch testified that the traffic backup was cleared
by about 5:30 or 6 p.m. I credit Frasch, and I find that
this problem was the reason for the presence of rental
trucks on the company parking lot.
The Union contends that the presence of trucks and
drivers on the lot constituted an implied threat of plant
closure or removal if the Union won the election. The
Union's argument would be more persuasive if there was
credible evidence that a company supervisor or official
threatened such action. However, as indicated, such evi-
dence was not presented. Employees Roger Biehl and
Gail Goad testified that Biehl asked a driver of a rental
truck (who was unknown to them) what the trucks were
doing on the lot. According to the employees, the driver
answered that they were there to move them out in case
the Union came in. The evidence fails to indicate that
the unidentified driver had either acutual or apparent au-
thority to speak on behalf of the Company. Compare
Materials Transportation Company, and Cement Trucking
Company, 170 NLRB 997, 1001-1002 (1968), modified in
other respects 412 F.2d 1074 (5th Cir. 1969): Air Express
International Corporation, 245 NLRB No. 69, fn. 3 (1979);
Yuba Consolidated Industries, Inc., 136 NLRB 683, 687
(1962). In the present case, there were rumors of plant
closing or removal (as will be discussed), and it was evi-
dent from union posters in the area that there was an
election at the plant. In these circumstances the driver
may have been passing along a rumor, inventing his own,
or simply kidding the employees. In any event, I find
that the Company was not responsible for the statement
attributed to him by the Union's witnessess.
D. Concluding Findings
In sum I have found that, with one exception relating
to the distribution of procompany insignia, the allega-
tions of the complaint have not been proven by a pre-
ponderance of the credible evidence. Specifically, I have
found that the credible evidence fails to indicate that any
company official, supervisor, or other spokesman threat-
ened that the Company would not bargain or would
close or move if the Union won the election.9 However,
with respect to the objections to the election, that is not
the end of the inquiry. The present record indicates that,
despite the lack of credible evidence of such official pro-
nouncements, rumors were rife among the employees
that the Company would close or relocate if the Union
won the election. To a considerable extent, those rumors
were directly traceable to one antiunion employee,
namely Joan Howard, who although not even in the
election unit, repeatedly told any employees who would
listen that the Company would not bargain and would
relocate its operations if the Union won the election.
Howard continued to engage in such talk even on elec-
tion day. Unfortunately, it is the disposition of some em-
ployees, unschooled in the art of public speaking, to inat-
tentively sit through a series of lengthy employer speech-
es, but to sieze upon a rumor as fact simply because the
rumor emanates from someone who works in the front
office and has access to confidential information. Thus,
employees quickly seized upon the unusual presence of
trucks on the parking lot on election day as evidence
that the Company intended to move if the Union won.
In fact, the Company had for some time been studying
and considering the possibility of moving its Gabriel de-
partment to its Pulaski, Tennessee, facility for reasons of
economy. Such discussions were easily subject to misin-
terpretation when fueled by rumors such as those which
were spread by Howard.
I find that these rumors tended to create a general at-
mosphere of confusion and fear as to render unlikely or
impossible a rational and uncoerced choice by the em-
ployees. In comparable circumstances the Board and the
courts have held that an election should be set aside, re-
gardless of whether any party to the election proceeding
was responsible for the rumor. See N.L.R.B. v. Staub
Cleaners, Inc., and Ben Barnet Cleaners, Inc., 357 F.2d 1
(2d Cir. 1966); Brown Steel Company, 230 NLRB 990, 991
(1977). Although this policy has most often been invoked
in situations involving violence or the threat of violence,
the above-cited cases make clear that the policy is also
applicable to rumors of economic or other coercion.
Indeed in the circumstances of a representation election
it is difficult to conceive of a more coercive threat than
that of plant closure. Therefore I find that the Union's
Objections 1 and 6 have been sustained insofar as rumors
of refusal to bargain and plant closure or removal cre-
ated an atmosphere in which a fair election was not
likely or possible.
9 The General Counsel correctly points out in its brief (p 8) thai testi-
mony against a respondent by individuals, who are currently in the
employ of that respondent, is normally entitled to great weight. Howev-
er, that factor is not controlling where on balance, the testimony of such
witnesses is demonstrably less credible than that of the respondent's wit-
nesses. Moreover, in the present case the Company did not rely exclu-
sively on the testimony of its supervisors and officials Rather, the Com-
pany also presented employee witnesses; and as indicated, they appeared
to be credible.
MAREMONT CORPORATION 1627
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating its employees concern-
ing their union attitudes and activities, the Company has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act,
and thereby has engaged, and is engaging, in unfair labor
practice within the meaning of Section 8(a)(l) of the
Act.
4. The Company has not violated the Act in any other
respects alleged in the complaint.
5. The Union's Objection 4 in Case 26-RC-5950 has
been sustained by the evidence. The Union's Objections
I and 6 have been sustained insofar as the evidence indi-
cates that rumors, that the Company would refuse to
bargain, close, or relocate if the Union won the election,
tended to create a general atmosphere of confusion and
fear as to render unlikely or impossible a rational and an
uncoerced choice by the employees. The Union's Objec-
tions 2, 5, 7, and 8 are without merit.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(l) of the Act, I shall recommend
that it be required to cease and desist therefrom and to
post appropriate notices. As the Company unlawfully in-
terfered with the conduct of the election on May 11,
1979, and as other factors also precluded a fair election, I
shall recommend that the election be set aside and that a
new election be directed as such time as the Regional
Director deems appropriate.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 0'
The Respondent, Maremont Corporation, World Parts
Division, Nashville, Tennessee its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Distributing "vote no" buttons to its employees
through supervisory personnel, or in any other manner
interrogating its employees concerning their attitude
toward or membership or activities in International
Union, United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW), or any other
labor organization.
'O In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Hoard, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of he Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objectlions thereto
shall be deemed waived for all purposes
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to organize, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activi-
ties.
2. Take the following affirmative action which is
found necessary to effectuate the policies of the Act:
(a) Post at its place of business in Nashville, Tennes-
see, copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
3. The election previously conducted on May 11, 1979,
is hereby set aside and a new election shall be directed at
such time as the Regional Director for Region 26 deems
appropriate.
II In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted bh
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L.ahor 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, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT distribute "vote no" buttons to our
employees through supervisory personnel, or in any
other manner interrogate our employees concerning
their attitude toward or membership or activities in
International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America
(UAW), or any other labor organization.
WE WILL NOT in any like or related manner in-
terfere with your right to engage in union or con-
certed activities, or to refrain therefrom.
MAREMONT CORPORATION
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain or
refuse to become or remain, members of said UAW or
any other labor organization.
MAREMONT CORPORATION, WORLD PARTS
DIVISION