Monroe Auto Equipment Co.

National Labor Relations Board - Board Decisions

Oct 27, 1970

186 N.L.R.B. 90 (N.L.R.B. 1970)

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monroe Auto Equipment Company , Hartwell Division
and International Union , United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW. Case IO-CA-6705
October 27, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 25, 1967, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding ,' finding that Respondent violat-
ed Section 8(a)(5) and ( 1) of the Act, by refusing to
bargain with the Union after it had been certified by
the Board and ordering Respondent to take specific
action to remedy such unfair labor practices . There-
after the Board filed a petition with the United States
Court of Appeals for the Fifth Circuit for enforce-
ment of its Order. On January 17, 1969, the court
handed down its Decision 2 remanding the matter to
the Board for further hearing on certain issues with
respect to the validity of the second election and
certification. Consistent with the court 's remand the
Board , on April 15, 1969 , issued its Order reopening
record and remanding proceeding to Regional Direc-
tor for hearing.
On November 12, 1969 , Trial Examiner James F.
Foley issued his Supplemental Decision , attached
hereto, in which he recommended that the election be
set aside , that the Board's certification of the Union
be vacated , that a new election be ordered, that the
Board's Order be vacated , and that the complaint in
this unfair labor practice proceeding be dismissed in
its entirety . Thereafter , the Charging Party filed
exceptions to the Trial Examiner 's Supplemental
Decision and a brief in support thereof. The Respon-
dent filed a brief in support of the Trial Examiner's
Supplemental Decision , cross-exceptions to the Trial
Examiner 's Supplemental Decision and a brief in
support thereof , and an answering 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
powers in connection with this case to a three -member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
1 164 NLRB 1051
2 406 F 2d 177
3406F2d177
4 The court further found that the remainder of the Company's
objections were insubstantial and required no further consideration by the
Board Accordingly , we find no merit in the Respondent 's contention that
Examiner's Supplemental Decision, the exceptions
and briefs, and the entire record in this case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent
consistent herewith.
The court3 listed the issues it deemed to require a
hearing as follows:
1. The Union, its agents, members and em-
ployees engaged in conduct alien to Section 7 of
the Act by making threats to company employees
that they would lose their jobs unless they voted
for the Union.
2. Anonymous telephone calls were made to
employees threatening bodily harm and loss of
jobs unless they voted for the Union.
3. The Union instigated, condoned, ratified
and acquiesced in the action of some of its people
in false statements that salaried employees of the
Company at Hartwell paid Union dues.
4. The Union instigated, condoned, ratified,
and acquiesced in the action of some of its people
who demonstrated payroll deduction slips of
salaried employees of the Company, reporting that
certain entries on the slips were in payment of
union dues when in reality the deductions were for
Georgia income tax.
5. Board agents in going about the plant
alerting the employees to vote sought advice and
direction exclusively from the Union representa-
tive and permitted the Union observer to speak,
holler at, wave his hand, and otherwise campaign
with the employees in the plant during the voting.
6. Board agents permitted the ballot box to be
left completely unattended in a room with an open
door.4
The Trial Examiner found and we agree that there is
no substantial evidence to support the allegations of
Objection 5 that the Board agents in releasing
employees to vote sought advice and direction
exclusively from the union representative and permit-
ted the union observer to speak, holler at, wave his
hand at the employees, and otherwise campaign
during the voting and that therefore Objection 5
should be dismissed. We also agree with the Trial
Examiner's finding that there is no substantial
evidence to support the allegation in Objection 6 that
the Board agents permitted the ballot box to be
completely unattended in a room with an open door.
In his Conclusions of Law 1, 2, and 3 the Trial
Examiner found with respect to Objection 1 that
union-supporting employees threatened other em-
it is entitled to a hearing on all of its objections
The Trial Examiner treated each of the issues listed by the court as a
separate objection using the numbers assigned by the court For the sake of
uniformity, we shall do likewise . It should be noted that these are not the
same numerical designations employed by the Respondent when it filed its
objections
186 NLRB No. 18
MONROE AUTO EQUIPMENT CO. 91
ployees of the Respondent with "loss of jobs and
physical injury if they did not support the Union in
the election." With respect to Objections 3 and 4 he
found that the union-supporting employees threatened
(emphasis supplied) other employees "by representing
to them that foremen and other salaried personnel
were members of the Union and paid union dues, and
showed them check stubs . . . for foremen or other
salaried personnel listing a deduction under the
heading `Union dues or other' and falsely represented
the deduction to be for union dues when it was for
Georgia Income Tax." And that "[t]his conduct
conveyed to the other employees that employees who
did not support the Union would be discriminated
against by foremen and other salaried personnel."
The Trial Examiner concluded that the threats of the
union-supporting employees "considered cumulative-
ly made a pattern of conduct."
The Trial Examiner's finding with respect to
Objections 1, 3, and 4 makes reference only to
"employee union supporters." In fact, the Trial
Examiner specifically concluded that the Union
cannot be held accountable for any misconduct in this
case (see Trial Examiner's Conclusions of Law 10, 11,
and 12).5
In view of the Trial Examiner's findings, it becomes
necessary to discuss the reasons given by the court for
remanding Objections 1 through 4. With respect to
the purported threats (Objections 1 and 2) the court
found that "since the facts in this case are not clear as
to the source of the threats, particularly the anony-
mous telephone calls,6 it appears that Respondent
would be entitled to a hearing on the agency dispute
alone ." In connection with Objection 1, however, the
court citing Home Town Foods, Inc. v. N.L.R.B., 379
F.2d 241 (C.A. 5, 1967), added that "even if the
threats did emanate from the rank and file employees
that would not be enough to dismiss the objection."
As noted the court used the above language
concerning agency in discussing Objection 1 (threats).
It discussed separately the allegation of union
misrepresentation in regard to the foremen's check
stubs (Objections 3 and 4) and indicated that a
question of fact arises as to whether the Respondent
had sufficient opportunity to correct the misrepresen-
tation. The court in no way suggested that the
standards it found applicable to threats should also be
applied to an alleged misrepresentation or that an
alleged misrepresentation might constitute grounds
for setting aside an election whether attributable to
the Union or not. However, the Trial Examiner not
only did not discuss Objections 3 and 4 under the
standards generally applied to misrepresentation but
also found the representations made by union
supporters 7 "threatened other . . . employees." At
this point suffice it to say that in our opinion the Trial
Examiner's finding not only is erroneous but would
do grave harm to the law concerning misrepresenta-
tion as it has been developed by both the Board and
the courts.
Inasmuch as the tests set forth by the Fifth Circuit
in some respects vary from those customarily applied
by the Board in determining whether the laboratory
atmosphere surrounding the elections was disrupted,
a discussion of some of the applicable Fifth Circuit
decisions appears to be in order. The language of the
court in Home Town Foods, Inc., supra, appears
particularly relevant. The court said (379 F.2d at 244):
It is not the effect of any one of the objectionable
acts standing alone, however, but the combined
effect of all of them, which must be considered .
.. . One of the important issues is the effect of the
election and pre-election practices of union sup-
porters on the minds of the voters. The Courts
have usually applied an objective test to determine
whether interference with an election is sufficient
to set it aside .. . . Subjective evidence of fear and
coercion, however, may carry the day as well ... .
We are not impressed with the argument that all
coercive acts must be shown to be attributable to
b To the extent that the Trial Examiner's Conclusion of Law 5 is
inconsistent with his finding that the Union was not responsible for any
misconduct we must reject it. Conclusion of Law 5 states:
The known identity of the Union supporting employees making the
threats, the engaging in a pattern of conduct, and their attendance at
Union meetings, and the failure of the Union before and on the day of
the election to disavow their conduct , gave the impression to other
employees that their conduct had the support or at least the
endorsement of the Union.
There is no record evidence whatsoever which reveals that the Union had
knowledge of any of the purported misconduct . In fact , the unrefuted
testimony of the International representative , Louis Echols, indicates the
contrary.
6 The court pointed out, citing N.L.R.B. v. Tampa Crown Distributors,
272 F.2d 470 (C.A. 5, 1959), that with respect to anonymous telephone calls
(Objection 2) any exact application of the agency test is impractical or
impossible . The anonymous calls are discussed infra.
7 As noted above , the Trial Examiner found that the Union was not
responsible for the alleged misrepresentation . This normally would have
ended the matter since Objections 3 and 4 alleged that the Union
"instigated, condoned, ratified and acquiesced" in the alleged misrepresen-
tations : However, the Trial Examiner added as another objection
"representations by employees to other employees that foremen and other
salaried employees were members of the Union and paid union dues and
the false representations of employees to other employees that the
deductions under `Union dues and other' on check stubs of foremen and
other salaried personnel was for Union dues .. (see In . 9 of Trial
Examiner's Decision). His justification for so doing was that it was placed
in issue by Respondent's evidence , and litigated by all the parties. The
Union excepts, contending that the Trial Examiner has no authority to add
to the Respondent's objections and that the addition is beyond the scope of
the court's remand . The Union adds that nothing occurred at the hearing
that would entitle the Trial Examiner to infer that the parties were
litigating matters beyond the Respondent 's objections or the court's
remand . Although we are inclined to agree with the Union's contention, we
decline to pass on it. Moreover, in accordance with the Fifth Circuit's
holdings we are obliged to consider whether the combined effects of all the
alleged misconduct may have contributed to an atmosphere which
rendered a free election impossible. (See Home Town, Inc. v. N.L.R.B., 379
F.2d 241 (C.A. 5, 1967))
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union itself, rather than to the rank and file of
its supporters . . . . The important fact is that such
conditions existed and that a free election is
thereby rendered impossible.
The court remanded that case to the Board for a
hearing. Using the court's holding as the law of the
case , the Board ,8 after extensively modifying the Trial
Examiner 's Decision , again overruled the Respon-
dent ' s objections and reaffirmed its certification of
the Union . When the case went back to the Fifth
Circuit the courts again denied enforcement of the
Board 's order on the grounds that the standards of
campaigning and conduct had dropped too low and
the Board 's requisite laboratory conditions were not
present.
The Board subsequently filed a petition for rehear-
ing. The court 10 in denying the petition stated:
The Board complains that the Court imposes on
the Board an "unrealistically `ideal ' standard." We
do not so intend . We are in full agreement with the
Board 's explanations of its "laboratory" standard
in Morganton Full Fashion Hosiery, 1954, 107
NLRB 1534 , 1538,1 and in Liberal Market, Inc,
1954, 108 NLRB 1481 , 1482.2
As indicated later by the Board in International
Mfg. Co., 1967, 167 NLRB No. 105, from which we
quoted in footnote 14 to our original opinion, the
task is ". . . to evaluate properly the probable
effect of conduct which is coercive in nature. . . .
The controlling factor here is whether the conduct
involved tends to interfere with a free and
uncoerced choice by the employees." The test was
more elaborately stated by this Court in a case
decided shortly after our original decision in the
instant case:
the ultimate question here is not
whether any improprieties occurred during
the campaign , but whether under the circum-
stances, the particular conduct complained
of `created an environment of tension or
coercion such as to preclude employees from
exercising a free choice . For conduct to
warrant setting aside an election , not only
must that conduct be coercive , but it must be
so related to the election as to have had a
probable effect upon the employees ' actions
at the polls.' N. L. R.B. v. Zelrich Company,
344 F.2d 1011, 1015 (5th Cir. 1965)."
8 172 NLRB No 126
9 416 F 2d 393
tU 416 F 2d 392 at 400 (October 1, 1969)
It In the court 's second Home Town Food decision it found it
unnecessary and unwise to comment on the employer 's charge that the
Board employed a double standard The court added "It would seem to
us, however , that the Board should apply a single standard against which it
will measure the campaign conduct of all parties who might have interfered
with employee free choice weighing the conduct of each individual party
N. L.R.B. v. Golden Age Beverage Co., 5th Cir.
1969, 415 F.2d 26.
t ". the adoption of a laboratory standard should not be
construed to mean that the Board will ignore the realities of
industrial life In this respect , we are not unmindful of the fact
that the `laboratory ' for election purposes is unually an
industrial plant where vigorous campaigning and discussion
normally take place "
2"in decidmg ' whether the registration of a free choice is shown
to have been unlikely , the Board must recognize that Board
elections do not occur in a laboratory where controlled or
artificial conditions must be established We seek to establish
ideal conditions insofar as possible , but we appraise the actual
facts in light of realistic standards of human conduct "
In Golden Age, supra, 415 F.2d 26, the court also
indicated that the burden is on the party objecting to
the conduct of the election. It continued:
This is a heavy burden; it is not met by proof of
mere misrepresentations or physical threats. Rath-
er specific evidence is required, showing not only
that the unlawful acts occurred, but also that they
interfered with the employees' exercise of a free
choice to such an extent that they naturally
affected the results of the election (citations
omitted).
The Court then alluded to the Board's expertise
which arises from the fact that it supervises and
reviews thousands of representation elections each
year and noted that the Board has not followed a
"double standard" or abused its discretion in apply-
ing its expertise. It stated:
An employer is an unorganized plant, with his
almost absolute control over employment, wages,
and working conditions, occupies a totally differ-
ent position in a representation contest than a
union, which is a mere outsider seeking entrance to
the plant. The opportunity for employer domi-
nation and misrepresentation is manifest.. . .11
In summary, it appears that within the framework
laid down by the Fifth Circuit, we are obliged: (1) to
consider the objections or incidents cumulatively
rather than as isolated individual incidents; (2) in
addition to the objective evaluation normally em-
ployed, to consider subjective evidence of fear and
coercion in determining whether interference suffi-
cient to warrant setting aside the election occurred; 12
and finally and most important (3) to determine not
only whether the conduct complained of was coercive
but also whether it was "so related to the election as to
have a probable effect on the employees' actions at
the polls," or "created an environment of tension or
coercion such as to preclude employees from exercis-
according to the particular power he might possess " This is precisely what
the Board has attempted to do in this case
12 In remanding this case , the Fifth Circuit cited its first opinion in
Home Town Foods, supra, where it had indicated that the Board should
consider subjective evidence of fear and coercion in addition to applying
the customary objective test to determine whether there had been fear or
coercion The Board having accepted the remand , those holdings are the
law of this case , and therefore we have in fact considered the subjective
evidence.
MONROE AUTO EQUIPMENT CO. 93
ing free choice."
With the foregoing in mind we proceed with a
discussion of the objections. In considering these
objections we have accepted the Trial Examiner's
credibility resolutions . Where relevant we have
discussed other testimony of the credited witnesses
which is pertinent to the issues to be resolved.
The Threats
As found by the Trial Examiner, employee Teel
testified that about a week before the election
employee Fulgam told him if he did not join the union
and sign a card they would get 17 employees against
him and have him fired and that 2 days later he was
told the same thing. Teel testified that he believed
Fulgam and was concerned about his job. On cross-
examination, however, he testified that although he
"thought about it [the threat] there one time" he voted
his convictions.
Employee Jordan testified that prior to the election
about four or five employees standing at the coke
machine were talking about things they could do to
employees who did not vote union if the union got in,
and one of them said the union would get names of
seven employees against them, make it hard for them
and put them out of their jobs. Fulgam, one of these
employees, said they could beat up people with tire
chains. Jordan further testified that he voted accord-
ing to his convictions and added, "It is a free
country." Jordan did not testify that he believed these
employees or that he was concerned with respect to
their remarks. We note that what the employees said
the Union could do was conditional on the Union's
winning the election. We further note that such
remarks by employees are more likely than not to
elicit a negative rather than a positive response toward
unionization.
Employee Howard Sanders' testimony does not
read the way it was set forth by the Trial Examiner.
Sanders testified that Ralph Vickery told him he
wouldn't be around long and would have to sign up if
he wanted to do well around here; and Ray Vickery
told him if you are going to do well you have to buddy
up with them. Sanders replied that maybe he would
not do well and that "that is your opinion [Vickery's],
my opinion is that the company is nice to me and I
can't see [the Union's] point." Sanders emphasized
that there were no hard feelings between himself and
the Vickerys . In our opinion , this can hardly be
considered a threat; moreover, Sanders' testimony
indicates that he did not feel that his job was
threatened in any way. He informed the Vickerys that
that was their opinion and that his was different. In
our opinion the Trial Examiner's finding that Sanders
was coercively threatened with the loss of his job has
no support on the record.
Sanders also testified, as found by the Trial
Examiner, that employees Jerry Garland and Britt
Sorrells tampered with his machine for quite a long
period of time but that they discontinued it when they
saw he would not change his position. Sanders
testified that he felt their mood was one of spite
because he was not on their wagon. Sanders added
that he had no falling out with Sorrells but that "there
was just a while I figured [Sorrells] was doing me
wrong in the machine business." Sanders never told
his foreman about the tampering although it some-
times took him an hour to get his machine running.
He also indicated that he considered this "devilment."
It should be noted that Sanders never mentioned that
Garland or Sorrells told him that they were for the
Union, asked him to support or vote for the Union, or
discussed his position on the Union. At best the
record reveals only that Sanders assumed they were
union supporters. Nor is there any other evidence on
the record which supports their description by the
Trial Examiner as "union supporting employees."
And while at the same time there is no evidence that
Sanders' apparent assumption was incorrect, the
unequivocal attribution to the "union supporting
employees" of the conduct of Garland and Sorrells is
not supported by the record.
Employee Holbrook, after much confusion, testified
that employees Harvey Sanders and Reed Ayers told
him that he had been referred to in union meetings in
connection with his not getting a job in Hartwell and
that they would organize other plants in Hartwell
after Respondent's plant was organized and would
take care of him by seeing that he did not get a job in
Hartwell. Holbrook testified that he voted according
to his convictions. Holbrook did not indicate that he
took these remarks seriously or that he was concerned
for his job. Moreover, this so-called threat was
conditioned not only on the Union' s organizing
Respondent's plant but all the other plants in
Hartwell. In our opinion these remarks can only be
classified as "puffing" and do not support the Trial
Examiner's finding that Holbrook was threatened
that he would lose his job if he did not vote for the
Union. Our comments with respect to the statements
made to employee Jordan are likewise applicable
here.
Employee Gerald Craft testified that, 2 or 3 weeks
prior to the election, employee Ayers told him that if
he did not vote for or join the Union he could be
rolled or bumped by employees with seniority. He
testified only that he did not know if this could be
done. In our opinion this evidence does not support
the Trial Examiner's finding that Holbrook was
threatened with the loss of his job if he did not support
the Union.
Employee Johnson testified some employees in the
voting line on election day told him if he did not vote
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Union he would lose his job. He told them that
they would not know how he voted. Someone in the
group told him that there were mirrors in the booth.
Although not mentioned by the Trial Examiner,
Johnson further testified that he voted according to
his convictions, that the remarks of the employees did
not change his mind, and that he voted just the way he
intended to vote. He also testified, contrary to the
Trial Examiner's finding, that he did not tell his
supervisor about the incident and that he discussed it
with other employees about a week after the election,
only. Clearly the remarks by Johnson's own testimony
had no effect on him or any other employees who
voted.
At this point we note that this was the only evidence
of the alleged rumor that there were mirrors in the
voting booths with which the court was concerned.
Since Johnson provided the only evidence on this
point and he neither talked to other employees nor
believed it himself that particular allegation would
appear to be of no merit.
As found by the Trial Examiner, employee Bowen
testified that a week or two before the election
employee Adams told him he would lose his job if he
did not vote for the Union and sign a union card. He
further found that Bowen voted his convictions but,
while not physically afraid of Adams, he was afraid,
having a family, he would lose his job. The Trial
Examiner's summary of Bowen's testimony is not
accurate, for Bowen did not say he was afraid he
would lose his job. Rather Bowen testified that it (the
alleged threat) upset him a little because 10 or 12 years
earlier when he first came to Hartwell "he couldn't
buy a job in Hartwell." Bowen further testified on
cross-examination that he voted his convictions and
was not influenced by Adams' remark. Finally, he
admitted that he was not afraid he would lose his job
if the Union won the election. Also contrary to the
Trial Examiner's finding, Bowen said he couldn't
recall discussing Adams' remark with anyone. Clear-
ly, if Bowen is to be believed, Adams' remark neither
created fear or tension in his mind nor in the mind of
any other employees.13
Employee Mize14 testified that employee Adams
told him about the benefits to be had under a union
13 The testimony of employees Phillips and Madden will not be
discussed since the Trial Examiner credited neither of them with respect to
the threat of job loss Nor will the testimony of employee Morns, who
testified only that it was common gossip that if an employee did not vote
for the Union he would be looking for another job , since the Trial
Examiner did not rely on his testimony with respect to his findings on
threats.
14 This objection , threats of physical injuries by employees to other
employees , was added by the Trial Examiner as another objection (see fn 9
of the TXD) The Union, as with the other objection added by the Trial
Examiner , excepts , contending the Trial Examiner has no authority to add
to the Respondent 's objections (the objection would not be timely filed
under the Board's rules) and that such an addition is beyond the scope of
the court 's limited remand Although not necessarily agreeing with the
contract. Mize replied that he didn't see it that way
and that we would regret it (the Union) because they
(the Respondent) will see fit to move the work
elsewhere. When Adams replied that they could not
do that Mize told him "there is one thing I know for
sure , that this little machine I am operating is here
because of the terrible thing they had up at Monroe [a
reference to the Respondent's plant or former plant at
Monroe, Michigan, which figured prominently in the
Respondent's propaganda during the first election
campaign] and it is here and I am operating it, and I
know that for sure." 15 Adams then said, "It looks like
I am going to have to whip your ass." Nothing further
was said, but Adams returned about 30 minutes later
and stood about 3 feet from Mize and looked at him
for a minute or two with one hand in his pocket. Mize
testified he did not recall what Adams said when he
returned but that Adams never threatened him. He
did testify, however, that the peculiar look in Adams'
eyes disturbed him. On cross-examination Mize
testified that his prior relationship with Adams,
although limited, had been friendly. He also testified
that the comment he made to Adams about what
Respondent did do in Monroe (Michigan) and could
do in Hartwell was general information. Mize did not
mention whether he discussed Adams' remark with
any of the other employees. Finally, Mize testified
that he voted according to his convictions.
Although Mize said he was disturbed by Adams'
conduct he also indicated that he had other concerns
if the Union won, and that he voted according to his
own convictions. In our opinion this is the type of
vigorous discussion among employees of different
views which will occur during a heated campaign in
an industrial plant and which therefore must be
appraised in light of realistic standards of human
conduct.16 In conclusion, it does not appear that
Adams' remark had a probable effect on the actions
of Mize or any other employees at the polls.
In summary, the Trial Examiner found that 7
employees in a unit of 647 eligible voters were
threatened and coerced when they were told by other
employees who were union supporters that they
would lose their jobs if they did not support the
Union. Implicit in such a threat is the fact that the
Union's contention , we will discuss the objection
1s Employee Lewis, a union supporter who was apparently not involved
in any of alleged misconduct, testified (he was neither credited nor
discredited by the Trial Examiner) that the only rumor he heard prior to
the election was that the plant would close if the Union won Threats that
the plant would close if the Union won were one of the grounds for setting
aside the July 1964 election The Respondent did not file exceptions to the
Regional Director's report and the Board decision was not published The
Union also filed 8(a)(1) and (3) charges after the 1964 election (see Monroe
Auto Equipment Co, 159 NLRB 613)
16 See Morganton Full Fashioned Hosiery, 107 NLRB 1534 and Liberal
Markets, Inc, 108 NLRB 1481, which were cited with approval by the
court in Home Town Foods, Inc, 72 LRRM 2465
MONROE AUTO EQUIPMENT CO. 95
Union must win the election to effectuate the threat.
Of these seven, four, Teel, Jordan, Johnson, and
Bowen, testified that in spite of the threats they voted
according to their convictions. Jordan did not
indicate that he was at all concerned by the purported
threat. Johnson added that the purported threat in no
way changed his mind and that he voted just as he
intended. Bowen, on cross-examination, indicated he
was not influenced by the purported threat and
admitted he was not afraid he would lose his job if the
Union won the election. Of the remaining three
employees the Trial Examiner found were threatened
with loss of jobs, Sanders told the employees who
purportedly threatened him that that was their
opinion and his was to the contrary and emphasized
that there were no hard feelings between these
employees and himself. Sanders' testimony indicates
that he in no way felt threatened. Holbrook testified
that he was told that after Respondent's plant was
organized the Union would organize the rest of the
plants in Hartwell and he would not be able to get a
job. Thus, the purported threat to Holbrook was
conditioned not only on the Union's winning the
election but on organizing the other plants in
Hartwell. Holbrook in no way indicated that he took
these threats seriously or was concerned for his job.
The remaining employee, Craft, testified that he was
told that if he did not support the Union he could be
rolled or bumped by employees with seniority.
We observe, further, that contrary to the Trial
Examiner's findings, there is no evidence that these
purported threats were widely circulated. Two of the
seven employees said they told no one of the
purported threats until after the election. None of the
others indicated that they discussed the purported
threats with anyone, except, in a few instances, their
foreman. Only employee Davis, whose testimony the
Trial Examiner did not mention with respect to this
finding, indicated that the purported threats were
common gossip.17
On the witnesses' own testimony they did not take
the purported threats seriously. Nor, by their own
admission, did the purported threats affect their votes.
It would, therefore, appear unlikely that the threats
could have a probable effect on the actions of the
other employees at the poll. We are, therefore, unable
to conclude that the conduct alleged in Objection 1,
standing alone, interfered with or tended to interfere
with the results of the election or created a "general"
atmosphere of confusion and fear of reprisal which
rendered impossible a free election.
17 In his Conclusion of law 6 the Trial Examiner stated in part:
The evidence of the threats made by the Union supporting employees
and the circumstances in which they were made , and who made them,
reveal that they were made not only to the employees who gave
testimony regarding them but to many other employees as well.
In our opinion such a finding is total conjecture . It is one thing to say
The Anonymous Telephone Calls
As found by the Trial Examiner, employee Jordan
testified that, on the Sunday before the Tuesday
election, he received a telephone call at Terry's
Service Station, where he was helping out, and that
upon his identifying himself, the caller cursed him,
said that he had been running his mouth, that they
were watching him and would get him if he did not
vote for the Union. The caller would not give his
name . Although Jordan testified that the telephone
call caused him some concern he further testified that
he voted according to his convictions and added, "It's
a free country."
Employee Sanders testified that early one morning,
during the organizational campaign, while he was
sleeping, he received a telephone call and that the
caller asked him if he was going to sign a card.
Sanders testified that he replied, "You are talking to
the wrong man, every man to his own opinion.. . . I
am satisfied with what Monroe is paying me."
Whereupon the unidentified caller replied, "Go to
hell, God damn you," and slammed down the
receiver. Sanders further testified that the unidenti-
fied caller didn't make any threats. Sanders' descrip-
tion of the conversation was that, "I told him how I
stood. He told me how he stood, and slammed the
phone down in my face." Sanders indicated that his
only real concern was that he wanted to know who it
was that called. In our opinion the Trial Examiner's
finding that the anonymous telephone call to Sanders
was a threat and coercive is without record support.
Sanders testified that the call had no effect on his
vote.
Employee Madden, who worked the 4 p.m. to 2 a.m.
shift, testified that 2 weeks before the election he
received one to three telephone calls each night. The
first would be around 11 p.m. and the last about 3 a.m.
He refused to answer them. His wife was frightened.
She received the I 1 p.m. calls while he was at work.
That was the extent of Madden's testimony on the
anonymous calls; the Trial Examiner did not credit
his earlier testimony with respect to a threat that he
would lose his job if he did not support the Union. As
concerns the anonymous calls, Madden's testimony is
of small import; he gave no indication whatsoever as
to the nature of the calls. He did not indicate what the
caller said, whether the calls involved threats, or
whether the caller mentioned his supporting the
Union, except possibly by reference to his earlier
testimony which the Trial Examiner did not credit. He
knowledge of threats may have been widely circulated and have an impact
on employees who acquire knowledge of them, and quite another thing to
find that because threats were made to some employees they were likewise
made to other employees . The Trial Examiner's conclusion finds no
support in the record.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not state whether he told anyone about the calls.
While the record supports a finding that Madden
received anonymous calls, it does not support a
finding that he was threatened in these calls with
reprisals if he did not support the Union.
At 7:30 p.m. on the day of the election employee
Kay received a telephone call on the outside phone
which was available to employees in his department.
After Kay identified himself the unidentified caller
said he would kill him at 1 a.m. for what he did outside
the plant gate that afternoon. Kay testified that he
had stood outside the plant gate and attempted to
persuade employees to vote against the Union. The
Trial Examiner further found that Kay voted that
night at 11:30 p.m. and the next day he told Barry
Reed, an employee, and plant manager Gordon about
the telephone call. Contrary to the Trial Examiner's
finding, however, Kay testified that he had voted at
the afternoon voting session prior to receiving the
call.is Also contrary to the Trial Examiner's finding,
Kay did not tell Barry Reed, an employee, but rather
Benny Reed, the night superintendent, about the call
and then only on the day after the election. Kay
further testified that he did not mention the telephone
call to any of the employees in the phone area. Thus,
although the telephone call received by Kay was
certainly a threat (and coercive), it could not have
affected either his own vote or, by his own admission,
anyone else's vote since he told no one about the call
until the day after the election.
In conclusion, in a unit of 647 eligible employees
there were anonymous calls made to 4 employees. The
Trial Examiner found the anonymous calls to be
threats and coercive as the employees who received
the calls were cursed and told they would suffer
reprisals if they did not support the Union. Of these
four employees, one, Sanders, testified that he was not
threatened in any way by the caller and that the call
had no effect on his vote. Another, Madden, gave no
indication of the nature of the anonymous calls he
received and there is not sufficient evidence to
attribute these calls to union-supporting employees.
Contrary to the Trial Examiner's finding the record
shows that Kay received his anonymous call after he
had voted and did not mention it to anyone until the
day after the election. We are therefore left with one
anonymous call, that to Jordan, which might support
the Trial Examiner's findings; but even Jordan
18 Q Did that [the call ] have any effect on your vote or have any effect
on how you voted9
A [Kay ] No, sir f had already voted
19 See N L R B v Tampa Crown Distributing Inc, 272 F.2d 470 (C A 5,
1959)
20 The Trial Examiner's Conclusion of Law 7 deserves comment in this
regard Conclusion of Law 7 states in part
The nature of the threatening anonymous telephone calls and the
testified that in spite of the call he voted his
convictions.
Except in aggravated situations the Board has
applied the same rationale to anonymous telephone
calls as it has to threats by rank-and-file employees
and other persons who are not parties to the election.
To set aside an election because of anonymous phone
calls, except in the most compelling case, would
render the election proceeding vulnerable to the acts
of cranks, pranksters, and anyone else who for some
reason wishes to sabotage an election. The Fifth
Circuit may have taken a somewhat different view of
anonymous calls,19 although in the Board's view
Tampa Crown can be considered an exaggerated case
since in that case a fourth of the eligible voters
received anonymous threatening calls. Moreover, in
that case the court emphasized that the union
officials, in contrast to the instant case, did not take
the stand and deny knowledge of or responsibility for
the telephone calls. Here on the other hand, at the
most 2 of 647 eligible voters received anonymous
calls. And, as indicated above, there is no evidence
that knowledge of the anonymous calls was widely
circulated; the record does not support the Trial
Examiner's finding that "the nature of the threats . . .
very likely led to their prompt and wide circulation,
and their restraining effect was not limited to those
directly involved." Those directly involved, in fact,
admitted that they were not restrained.20
In conclusion we are unable under any standards to
agree with the Trial Examiner's finding with respect to
the anonymous telephone calls. In our opinion, the
record does not support a finding that the anonymous
telephone calls "created an environment of tension or
coercion such as to preclude employees from exercis-
ing a free choice" or "destroyed the atmosphere
necessary to the exercise of free choice."
The Alleged Misrepresentations
As indicated above the Trial Examiner found that
the Union was not responsible for the conduct alleged
in Objections 3 and 4. He then added to the objections
by including misrepresentations made by employees
to other employees. As indicated above (see fn. 7), we
agree that the addition was beyond the scope of the
court's remand. We further note that in its remand the
court did not discuss the allegation of union misrepre-
sentation in the same context as the alleged threats.
The court indicated that the allegation of union
circumstances in which they were made reveal they were made not
only to the employees who gave testimony regarding them but to
many other employees as well
This finding not only is not supported by the record but is without
precedent To conclude that because some employees received anonymous
telephone calls others also must have received such calls because of the
nature of the calls is not only illogical but is contrary to the most basic
rules of evidence ( See fn 17, supra)
MONROE AUTO EQUIPMENT CO.
misrepresentation with respect to the foremen's check
stubs "appears to be more of a rumor." It indicated
that there was a factual issue as to how widespread the
rumor was and that, "applying the misrepresentation
test" cited in Pepperell Manufacturing Co. v.
N.L.R.B.,21 ". . . a question of fact arises as to
whether the employer had sufficient opportunity to
correct the misrepresentation."
Pepperell is quite pertinent to this discussion
because of the similarity of the circumstances therein.
In Pepperell, ' as here, the union lost the first election.
As in the instant case, the employer in the first
election waged an intensive campaign which included
threats of plant shutdown and consequent economic
disaster if the union won the election. As here, the
Board set the first election aside. Unlike Pepperell,
however, in the instant case the Respondent did not
file exceptions to the Regional Director's report on
objections to the first election. In Pepperell, as here,
the union won the second election and the employer
filed objections, which were overruled by the Board.
The objections in the Pepperell case alleged misrepre-
sentation of a material fact by the union (the
misrepresentation involved wage rates in surrounding
union companies). The court adopted the Board's
findings and granted enforcement. In Pepperell the
court set forth the three criteria or tests, adopted by
the court herein, for evaluating misrepresentations.
These criteria are: "1. Is the misrepresentation of a
material fact? 2. Did the misrepresentation come from
a party who has special knowledge of the true facts?
and 3. Did the opposing party have sufficient
opportunity to correct the misrepresentation?" The
court concluded that the test "is not that when false
statements are made they constitute an interference
with free choice, but that when false statements are
made which constitute an interference with free
choice . . . an election should be set aside." It should
further be noted that in Pepperell the union and not
union-supporting employees made the misrepresenta-
tions.
Applying the criteria of Pepperell we would agree
that the representation herein was of a material fact.
But, we cannot say that it was an invalidating
misrepresentation as there is no evidence that the
employees who made the representation knew that it
was false. Certainly it cannot be said that the
representation came from a party who had special
knowledge of the true facts.22 In fact, the Respondent
was responsible for making such a representation
possible; the check stubs were its own and it placed
the deduction for Georgia tax under "Union dues and
other." Finally, it appears that the Respondent had a
21 403 F.2d 520.
22 Had the Union been responsible for this rumor, it would be a
97
sufficient opportunity to correct the misrepresenta-
tion and the Trial Examiner so found.
The Trial Examiner found that four employees were
told by union-supporting employees that manage-
ment paid union dues and it was noted on their pay
stubs. Four other employees testified that there was
such a rumor around the plant . Employee Davis
testified that he heard about the rumor a few weeks
before the election but knew it was not true because
he discussed it with his father who is a foreman. Teel
also indicated that he spoke to his supervisor about
what he had been told . Employee Jordan testified that
when he was told by employee Fulgam that foremen
belonged to the Union and paid dues he didn 't believe
it. Jordan testified he voted according to his convic-
tions, as did Teel and Holbrook.
The Trial Examiner found that the misrepresenta-
tion concerning the foremen 's check stubs constituted
threats and coercion notwithstanding the fact that
none of the employees considered the misrepresenta-
tion as a threat . There was no evidence to support the
Trial Examiner's finding that the employees who were
told about the foremen considered that if they did not
support the Union they would be discriminated
against by foremen . Nor do we believe that in view of
Respondent 's known attitude with respect to the
Union , as demonstrated in the first election, such a
finding finds rational support (see Pepperell Mfg. Co.,
supra).
The Trial Examiner found that Respondent must
have been aware of the rumor and that the use of the
check stubs lent weight to the rumor . He further
found that since it knew of the misrepresentations it
had a duty to explain the deduction . The Trial
Examiner then ignored well-established principles of
both the Board and the courts with respect to
misrepresentations, by concluding that even though
the Respondent knew of the misrepresentation and
had failed to reply, the objection should not be
overruled because otherwise the employees ' exercise
of free choice would not be protected . This is directly
contrary to the court's holding in Pepperell. And, as
the court therein stated, not only must there be false
statements , but the false statements must constitute
an interference with free choice . In conclusion, the
Trial Examiner's finding that misrepresentations by
union-supporting employees constituted threats and
coercion which warrant setting aside the election is, in
our view, not supported by either the facts herein, or
the applicable law.
We have concluded, contrary to the Trial Examiner,
that none of the objections standing alone warrants
setting aside the election . We are likewise unable to
agree with his finding that the conduct of the union-
somewhat different case as it would at least have more knowledge of the
true facts.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supporting employees when viewed cumulatively
"resulted in the standards of election campaigning
and conduct dropping too low" or that the conduct
"was of so serious a nature that it could only result in
widespread confusion and fear of reprisal and render
impossible a rational, uncoerced choice by employ-
ees."
All of the alleged misconduct was committed by
rank-and-file employees whose power to effectuate
their action and words the other employees could
certainly evaluate. These employees indicated that
they did evaluate the conduct of their fellow employ-
ees since they indicated that their action at the polls
was not affected by the conduct.23 Other than a few
statements concerning common gossip or general
rumors there is no evidence that knowledge of the
alleged misconduct was widely circulated. We must
also consider the background of this case and
particularly the attitude of the Respondent with
respect to the Union as demonstrated in the first
election campaign and an earlier unfair labor practice
case (159 NLRB 613). Threats of plant closure or of
vast reductions in the workforce by those who possess
the power to effectuate their words do not die easily.
The only serious misconduct involved was the one,
or possibly two, threatening anonymous telephone
calls. Such activity is certainly never to be condoned;
however, here in a unit of 647 employees the one or
two calls can only be considered isolated. In conclu-
sion, we are unable to find that the alleged miscon-
duct "created an environment of tension and coercion
such as to preclude employees from exercising free
choice." Accordingly, we shall overrule the objections
to the election and affirm our certification of the
Union and our Order of May 25, 1967.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby overrules the objections to
the election; reaffirms the certification of Internation-
al Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, as
the representative of the employees in the appropriate
unit; and orders that the Respondent take the action
set forth in the Order previously issued herein on May
25, 1967.
23 See In 12, supra
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner: This proceeding
involves a hearing on certain objections filed March 11,
1966, by Monroe Auto Equipment Company, Hartwell
Division (herein called Respondent), to conduct preceding
and during an election conducted by the National Labor
Relations Board (herein called the Board) on March 3 and
4, 1966, at Hartwell, Georgia, to determine whether the
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW (herein
called the Union), is the collective-bargaining representa-
tive of a unit of the production and maintenance employees
of the Respondent. The hearing was held June 4 through 7,
1969, pursuant to the decision of the United States Court of
Appeals for the Fifth Circuit on January 17, 1969,1 denying
enforcement of the order of the National Labor Relations
Board of May 25, 1967, 164 NLRB No. 144, ordering
Respondent to bargain with the Union, and remanding the
petition for enforcement to the Board for further hearing on
6 of the 12 objections filed by Respondent on March 11,
1966. The court was of the opinion that the evidence
presented in the affidavits supporting the six objections
warranted the taking of additional evidence at an oral
hearing to provide an adequate basis for a determination
whether there were present or not present during the
election of March 3 and 4, 1966, the laboratory conditions
established by the Board as requisite for enabling
employees voting to register a free and untrammeled choice
for or against a bargaining representative. The court stated
that the remaining six objections were insubstantial, and
required no further consideration by the Board.
In accordance with the court's opinion, the Board, on
April 15, 1969, issued an order reopening the record in the
unfair labor practice proceeding, 10-CA-6705, for a
hearing before a Trial Examiner on the six objections in
issue, and for the Regional Director to arrange for the
hearing, and to issue a notice of hearing. The unfair labor
practice proceeding stemmed from the refusal of Respon-
dent to bargain with the Union after the Board certified the
Union as bargaining representative on August 18, 1966,
following the Regional Director's report that the 12
objections filed on March 11, 1966, were lacking in merit,
and the Board's adoption of the report after consideration
of Respondent's exceptions to it.
The hearing was held before me, from June 4 through 7,
1969, as stated, in Hartwell, Georgia. Evidence was
presented by Respondent, the Union, and the General
Counsel. Briefs were filed by the Respondent and the
Union after the close of the hearing. The Board's order of
April 15, 1969, provides for a supplemental decision by the
Trial Examiner containing findings of fact, conclusions of
law, and recommendations on the evidence received. It
further provides that upon its issuance and service on the
parties, further proceedings shall be in accordance with
( N L R B v Monroe Auto Equipment Co, Hartwell Division , 406 F 2d
177
MONROE AUTO EQUIPMENT CO. 99
Section 102.46 of the Board's Rules and Regulations, Series
8, as amended.
I. THE SIX OBJECTIONS
The six objections concerning which the court decided
additional evidence should be taken, and concerning which
the additional evidence was received, are as follows:
(1) The Union, its agents , members and employees
engaged in conduct alien to Sec. 7 of the Act by making
threats to company employees that they would lose
their jobs unless they voted for the Union.
(2) Anonymous telephone calls were made to employees
threatening bodily harm and loss of jobs unless they
voted for the Union.
(3) The Union instigated, condoned, ratified and
acquiesced in the action of some of its people in false
statements that salaried employees of the Company at
Hartwell paid union dues.
(4) The Union instigated, condoned, ratified, and
acquiesced in the action of its people who demonstrated
payroll deduction slips of salaried employees of the
Company, reporting that certain entries on the slips
were in payment of union dues when in reality the
deductions were for Georgia income tax.
(5) Board agents in going about the plant alerting the
employees to vote sought advice and direction exclu-
sively from the Union representative and permitted the
Union observer to speak, holler at, wave his hand and
otherwise campaign with the employees in the plant
during the voting.
(6) Board agents permitted the ballot box to be left
completely unattended in a room with an open door.
II. THE EVIDENCE2
A. Background Evidence
In the second Board-conducted election held on March 3
and 4, 1966, there were 647 eligible voters: 342 votes were
cast for Petitioner Union; 264 votes were cast against the
Union as bargaining agent; 11 votes were challenged. They
were not counted as they were not sufficient to affect the
results of the election.
The court's decision on January 17, 1969, denying
enforcement of the Board's 1967 Order, the Board's Order
of April 15, 1969, and the Regional Director's notice of
hearing set in motion the preelection activity or conduct of
union representatives and employee union supporters, and
of employees opposed to the Union or opposed to
representation by a collective-bargaining representative.
The rank-and-file employees who were eligible to vote and
who voted were employed in approximately 14 departments
spread over a wide plant area under the supervision of
foremen . There was considerable activity by the Union and
employee union supporters, and to some extent by
employees who did not support the Union or who were
against representation by a collective-bargaining represent-
ative.
The election was held on the afternoon of March 3, 1966,
from 2 until 5 p.m., and from 11:30 p.m. on March 3 until
12:15 a.m. on March 4. There was a preelection conference
on the morning of March 3 which began about 10 a.m. and
ended shortly after 11 a.m. The conference was attended by
union representatives, Respondent's representatives, Board
agents, and observers representing the Union and Respon-
dent.
Three Board agents supervised the election. They were
Thaddeus R. Sobieski, the Chief Board Agent, Louis M.
Keynard and Maynard Holbrook Jackson, Jr. They were
Board attorneys attached to the staff of the Board's
Regional office in Atlanta, Georgia. They had had
extensive experience in conducting Board elections. They
were assigned by the Board's Regional Director in Atlanta,
Georgia. The observers representing the Union were
Respondent's plant employees Donald Alewine and
William J. Phillips. The observers representing Respondent
were Respondent's office employees Mrs. Lessie Ann
Brown and Mrs. Virginia Brown Welborn.
B. The Evidence on the First Objection
(1) The Union, its agents, members and employees
engaged in conduct alien to §§7 of the Act by making
threats to company employees that they would lose
their jobs unless they voted for the Union.
Employee Lawrence Edward Teel was employed by
Respondent in department 12 on the second shift beginning
at 4 p.m. at the time of the election, March 3 and 4, 1966.
He had been employed by Respondent for about 4 years
prior to that time. Teel testified that employee Claude
Fulgam said to him about a week before the election that if
he did not join the Union and sign a card they would get 17
names of employees against him and have him fired, and 2
days before the election Claude Fulgam, the same
employee, and employee Charles Ward said to him that if
he did not join the Union, sign a card, and vote for the
Union they would get 17 names of employees against him
and have him fired. Teel testified he voted his convictions
although he believed Fulgam and Ward, and was
concerned about keeping his job. Employee Walter Jordan
was also employed by Respondent in department 12 on the
second shift at the time of the election, March 3 and 4,
1966. He had been employed by Respondent for about 4
years prior to that time. He testified that prior to the
election about four or five employees standing at the Coke
machine were talking about things they could do to
employees who did not vote union if the Union got in. They
would get names of employees against them, make it hard
for them, and put them out of their jobs. Claude Fulgam,
one of the group talking, said they could beat up people
with chains.
Employee Howard C. Sanders, was employed on the
second shift by Respondent in department 11 at the time of
the election. He had been employed by Respondent about 2
years prior to that time. He testified that a few days before
the election employees Ray and Ralph Vickery spoke to
him about supporting the Union. They said he would not be
around long if he did not support the Union. Ralph said he
2 The witnesses were separated . By agreement , Respondent's Plant
Manager Charles Gordon and George E. Roper, its industrial relations
manager, and union observers , Alewine and Phillips, were present in the
hearing room during the taking of all evidence.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have to sign with them if he wished to do well around
there. A few days later Ray said that if he wished to do well
he would have to buddy up to them. Sanders also testified
that employees Jerry Garland and Britt Sorrels tampered
daily for quite a long period of time with the automatic
controls on his machine. It would take him an hour every
evening, when he began work on the 4 p.m. to midnight
shift, to correct what they did. They discontinued when
they saw he would not change his position because of what
they were doing. Sanders testified they called the mood that
caused them to tamper with his machine one of spite
because he was not on their wagon.
Employee William Barry Holbrook was employed by
Respondent in departments 12 and 17 at the time of the
election. He had been employed by Respondent for about
10 years prior to that time. He testified that employees
Harvey Joe Sanders and Reed Ayers said to him about once
a day for 30 days prior to the election that he had been
referred to in meetings of the Union in connection with his
not getting a job in Hartwell, Georgia. They said they were
going to organize Hartwell. They would organize the
Marathon Company and Bell Brothers Sewing Plant in
Hartwell, after Respondent's plant was organized. They
would take care of him. They would see he did not get a job
in Hartwell. Sanders was a witness for the Union. He
testified he spoke to some employees on behalf of the
Union. He denied he said to Holbrook that if he did not
vote for or join the Union or sign a card, he would lose his
job, or he would not be able to get a job in the Hartwell
area. He testified he did not hear Reed Ayers make such a
statement . He testified that he or Reed Ayers told
Holbrook that when Respondent was organized that they
would try to help get other plants organized.
Employee Gerald Dan Craft was employed by Respon-
dent on the second shift in departments 12 and 13 at the
time of the election. He had been employed by Respondent
for 8 years prior to that time. Craft testified that 2 or 3
weeks prior to the election employee Reed Ayers said to
him that if he did not vote for orjoin the Union he could be
rolled or bumped by employees with seniority He testified
that he did not know whether it could be done. Employee
Mark Louis Johnson was employed by Respondent at the
time of the election in department 13. He had been
employed by Respondent about a year prior to that time.
He voted about 4:30 p.m. on March 3. Johnson testified he
went to the polling area in the company of employee Junior
Blackwell. He did not stay with the group of employees
from department 13. He was not with Blackwell when he
was in the line in the polling area waiting to vote. Some
employees in the line said to him that if he did not vote for
the Union he would lose his job. He said to them that they
would not know how he voted. Someone in the group said
there were mirrors in the booth. He did not know the names
of the employees in the group making the statements to
him. He told his supervisor a week later what was said to
him. He mentioned the incident to other employees when
they talked about the Union.
Employee John William Mize was employed by Respon-
dent in departments 10 and I 1 on the first shift at the time
of the election. He had been employed 10 years by
Respondent at that time. On March 2, 1966, he was
assigned to operate a screw machine in department 10.
Employee Andy Adams who worked in department 10 on
the other side of the entrance way came over to the machine
and told him about the benefits to be had under a union
contract. Mize replied that he did not see it that way, that, if
they had the Union, Respondent could move some of the
machinery, and some employees would not have employ-
ment. Adams said that they could not do that. Mize said he
knew what they did do, that he meant that the machine he
was operating was brought there because of some great
differences, and he knew he was there operating it. Mize
testified he knew this from general information that some
of the industry was coming south for that reason. Adams,
according to Mize, then said "It looks like I'm going to have
to whip your ass." Nothing else was said at this time. 1 It
was near a break. After a break of 20 or 30 minutes, Adams
returned and 1 It was near a break. After a break of 20 or 30
minutes, Adams returned and stood 2-1/2 to 3 feet from
him, looking at him for a minute or two minutes with a
peculiar look on his face, and one of his hands in a pocket.
He did make some remarks, but what he said was very little.
He did not recall what he said. The peculiar look in his eyes
disturbed him. Mize testified he voted his convictions.3
Andy Adams, as a witness for the Union, testified about
the incident. He was self-employed at the time of the
hearing. He was a machine operator when employed by
Respondent Adams said that on March 2, 1966, Mize
called him to the machine Mize was working on. It was
employee Seawright's machine. Adams was near the
machine to collect some metal boxes. Mize said to him that
he wanted to get the other man's view. When Mize said
something good against the Union, Adams laughed and
said he guessed he would have to whip his ass. He had three
discussions with Mize on March 3. These were the only
discussions he had with Mize. All of them were held prior to
the time Adams said he would have to whip Mize. Mize has
not spoken to Adams since the latter made the statement
about whipping him. During the time following the March
2 incident that Adams remained in Respondent's employ,
Mize did not look in his direction when he came into
department 10.
Employee Jesse Seawright, a witness for the Union, was
employed by Respondent in department 10 as a machine
operator on the first shift on March 2, 1966, when the
incident involving Mize and Adams occurred. He had been
employed 9-1/2 years by Respondent. He testified he
overheard only one conversation between them. He heard
Adams say he was going to whip Mize' s ass. Adams said to
him "Seawright it looks like I am going to have to whip old
John's D.A.," and Mize looked up at him, smiled and said,
"You might have to catch me first." The incident occurred
about 5 minutes before breaktime. According to Seawright,
Mize took what Adams said to him with a smile, which was
the way Adams gave it to him. Mize, who was a setup man,
left the machine he was working on shortly after. Seawright
did not see him the rest of the day.
Mize on direct examination testified that Seawright
3 Mize is a bigger man physically, but is substantially older than
Adams
MONROE AUTO EQUIPMENT CO. 101
operated a small milling machine next to the machine he
was operating . Adams testified that Mize was working on
Seawright's machine. According to Mize, Seawright was
present only during the beginning of the conversation. On
redirect examination, Mize testified that he was active in his
church as a Sunday school superintendent, and a teacher of
young men from 17 to 24 years of age.
Employee Charles E. Bowen was employed by Respon-
dent as a materials handler in departments 10 and 11 on the
first shift, from 8 a.m. to 4:30 p.m., at the time of the
election. He began his employment in 1961. Bowen testified
that a week or two before the election employee Andy
Adams said to him that he would lose his job if he did not
vote for the Union and sign a union card. He discussed
Adams' statement to him with other employees. He testified
he voted his convictions, but while not physically afraid of
Adams, he was afraid, having a family, he would lose his
job. Ten or twelve years prior to the election, he could not
obtain a job in Hartwell after he had been working on a
pipeline in Wisconsin. Bowen testified that other employees
also said to him that he would lose his job if he did not vote
for the Union.
Employee Jack Phillips was employed by Respondent at
the time of the election operating an automatic boiler, on
the second shift beginning at 4 p.m. He had been employed
7 years prior to that time. He voted at the second voting
session from 11:30 p.m. to 12:15 a.m. Phillips testified that
on the day of the election and many times before some
employees said to him that if he did not vote for the Union
they would see that he was thrown out of his job the day the
Union came in. He refused to disclose the identity of the
employees who made this statement to him. He testified he
liked his job, and thought that disclosure of the identity of
the employees would cause trouble in the plant. He started
to talk to his foreman about what was being said to him, but
his foreman stopped him and said it was up to the
employees. He voted his convictions, but did not know if he
would lose his job if the Union came in as he had never
worked under a union.
Employee Tommy Madden was employed by Respon-
dent as a Yoder Mill operator on the second shift beginning
at 4 p.m. at the time of the election. He had been employed
by Respondent since 1957. He voted between 2 p.m. and 5
p.m. on March 3. Madden testified that a week before the
election an employee, whom he referred to as "a boy," said
to him that they would vote the Union in, and if successful
he would have to join the Union or lose his job. He testified
he knew the employee's name but refused to disclose his
identity. He testified he refused to disclose his identity
because he had to work with him, and because of
anonymous telephone calls he received that worried his
wife. The calls were received less than 2 weeks before the
election . One to three calls were received each night. The
earliest was at 11 p.m. and the last was about 3:30 a.m.
Employee Reuben Davis Morris was employed by
Respondent at the time of the election as an experimental
mechanic in department 17 on the first shift beginning at 8
a.m. He had been employed 6 years prior to that time. He
voted about 3 p.m. on March 3. Morris testified that it was
common gossip voiced by employees in any group
congregating in any area of the plant that, if an employee
did not vote for the Union, he would be out looking for
another job and would not find it in Hartwell. He testified
that this gossip was so common that it did not stand out
much in his mind. It began to stand out in his mind about 2
months after the election.
Counsel for the Union asked witnesses called by the
General Counsel the question whether they had knowledge
of any employee being threatened with the loss of his job if
he did not vote for or join the Union or sign an
authorization card. The witnesses were Employees Strick-
land, Brooks , Hendrix, Jesse L. Phillips, Beebe , Coile,
Norman Sanders, Lacin Lewis, Charles Alexander Ayers
and Alton Barton Craft. They answered "No." These
employees supported the Union in the election . Donald
Alewine, the union observer, when recalled as a witness by
the Union, was asked by counsel for the Union if he had
heard Louie Echols, coordinator for region 8 of the Union
and International representative of the Union, who was in
charge of the organizational activity at Respondent's plant,
say that an employee of Respondent who did not vote for
the Union or sign an authorization card would lose his job
if the Union won. Alewine answered "No." He was also
asked by counsel for the Union if he heard Tom Stallings
and Joe Mooney, union officials who assisted Echols, or
any union employee, make such a statement, and he
answered "No."
Counsel for the Union asked Echols, who was called as a
witness for the Union, if he, or any employee of the Union
in his presence, told any employees of Respondent that if
they did not vote for or join the Union, or sign an
authorization card, they would lose their jobs if the Union
won the election. Echols answered, "It was to the contrary,
we did not." Echols was asked if he told any employees of
Respondent to make similar remarks to other employees.
He answered, "We did not." Echols also testified that, at
the six or seven meetings held by the Union, employees who
attended the meetings were given instructions as to the
rights of employees, and what employees could do and
could not do. He and the other representatives of the Union
told the employees at the meetings not to be around the
polling place intimidating other employees who did not
necessarily talk the way they did.
Echols testified that union representatives also talked to
the union observers prior to the time they received
instructions. They were asked to conduct themselves in a
proper manner . In response to a question by counsel for the
Union whether any employees of Respondent received "a
fee, salary or remuneration" for acting on behalf of the
Union in the organizational campaign , Echols answered
"No, not even a beer." Echols also testified that no
employees of Respondent were given authority to act on
behalf of the Union in the organizational campaign.
C. The Evidence on the Second Objection
(2) Anonymous telephone calls were made to employees
threatening bodily harm and loss of jobs unless they
voted for the Union.
Employee Walter Jordan testified that Sunday evening
prior to the election on Thursday, March 3, 1966, he
received a telephone call while he was working at Terry's
Service Station in Hartwell. He was helping Terry out as his
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
father and sister were ill. When the telephone rang, he
answered it with the words , "Terry's Service Station." The
caller asked who he was and he identified himself. The
caller thereupon cursed him and called him a name, and
said he had been running his mouth, and they were
watching him and were going to get him if he did not vote
for the Union. He said Jordan was his man . Jordan asked
the caller who he was, and he answered "Wouldn't you like
to know?"
Employee Howard C. Sanders , who worked on the
second shift, testified that while he was sleeping early one
morning during the organizational campaign the telephone
rang. When his wife answered the telephone, the caller
asked to speak to him. After he identified himself the caller
asked him if he was going to sign a card . He answered that
he was satisfied with what he was being paid, and the caller
replied "Go to hell, God damn you," and slammed down
the receiver.
Employee Tommy Madden who worked on the second
shift, 4 to 12 p.m., testified that about 2 weeks before the
election he received one to three anonymous telephone calls
each night. The first would be around 11 p.m. and the last
one about 3 a.m. He refused to answer them . His wife was
frightened. She received the 11 p.m. calls as he was working.
Employee William P. Kay, an employee of 7 years at the
time of the election, worked in department 12, on the
second shift. He was called to the outside telephone in
department 13, which was available to employees in his
area , by employee James Allen about 7:30 p.m. on the day
of the election. The caller asked twice who he was and he
identified himself each time. The caller said he would kill
him at 1 a.m. for what he did outside the plant gate that
afternoon . Kay asked the caller who he was, and he
answered "Wouldn't you like to know." Kay testified he
said to the caller that he would be off work at 1 a.m., and
would like to meet him. Kay voted that evening at 11:30
p.m.
Kay testified that he was outside the plant gate that
afternoon as the employees came into the plant , and he said
to them to vote and think for themselves. Sobieski, the
Board agent in charge of the election , testified that
employee Tommy Hendrix, a witness for the General
Counsel, came into the voting area the afternoon of March
3, after he had voted, to complain about Kay's conduct at
the plant gate, but he told him it was not the proper time or
place to make a complaint, and asked him to leave the
voting area. Hendrix left. Kay testified that the next day he
told employee Barry Reed and Plant Manager Gordon
about the anonymous telephone call.
Counsel for the Union asked General Counsel 's witnesses
named supra, if they had any knowledge of anonymous
telephone calls, and, they answered, "No." He asked Union
International Representative Echols if he, or any employee
or member of the Union, had asked any employees to
contact other employees by telephone, and he answered
that neither he nor they asked this of any employee. He
testified that, in his case , there was one exception . He asked
Alewine to contact employees to get the word out about
union meetings . This testimony is corroborated by
Alewine's testimony.
Alewine testified, in response to Union counsel's
questions, that he called other employees whom he knew,
and who attended union meetings with him, and discussed
things with them. He always identified himself, and never
made any remarks to them that could be construed as
threats. He denied he ever telephoned Jordan, Madden, or
Kay. He testified he heard no rumors in the plant that they
had been called by telephone and threatened.
D. The Evidence on the Third and Fourth
Objections
(3) The Union instigated, condoned, ratified and
acquiesced in the action of some of its people in false
statements that salaried employees of the Company at
Hartwell paid union dues.
(4) The Union instigated, condoned, ratified and
acquiesced in the action of its people who demonstrated
payroll deduction slips of salaried employees of the
Company, reporting that certain entries on the slips
were in payment of union dues when in reality the
deductions were for Georgia income tax.
It is undisputed that Respondent paid foremen with
checks that had vouchers or stubs attached showing the
deductions taken from the gross amount of the checks.
There is no place on the voucher or stub to show the
deduction for Georgia income tax. Respondent showed this
deduction in a space headed by the words "Union dues or
other."
Employee Teel testified that Claude Fulgam stated to
him that management paid union dues, it was on their
check stubs, and they received better benefits because they
belonged to the Union. He saw Fulgam showing a check
voucher or stub to other employees, but he put it in his
pocket when he approached these employees. He talked to
Gerald Davis, his foreman, about what Fulgam said to him
and the other employees. Davis came to him and the other
employees with check stubs he had taken from his billfold
to show them the deduction under the heading of union
dues or other was for Georgia income tax. Fulgam was
present. He said "I don't give a damn what you got, I am
for the Union, I am going to vote for it and I don't give a
damn who knows it."
Employee Jordan testified that Claude Fulgam was
showing the check stub in his department, department 12, a
week or two before the election. He showed it to him, and
said foremen belonged to the Union. Jordan replied that he
did not believe it. He went to the bank at the time, and
when he returned there was a stub on his machine. He
pushed it on the floor. In the statement Jordan gave to
Board Agent Watson on March 22, 1966, there is no
reference to the check stub. Jordan testified that he
disclosed what happened to Watson, but the latter did not
include it in the statement he wrote up for him and which
he signed.
Employee Gerald Dan Craft testified that 2 weeks before
the election Harvey Joe Sanders told him that foremen and
supervisors belonged to the Union and he could prove it by
check stubs. Sanders said the foremen and supervisors had
more benefits than rank-and-file employees. They had
retirement and insurance , and more benefits than the rank-
and-file employees had. The statement that Craft gave to
Board Agent Watson refers to his being informed by four
MONROE AUTO EQUIPMENT CO. 103
or five unidentified employees about foremen and supervi-
sors belonging to the Union but not by Sanders. Sanders
testified that he knew Craft and that he talked to employees
about the Union a month before the election. Craft testified
he talked to employee Reuben Morris about it after the
election , and he said the deduction under the heading of
union dues was the Georgia state tax.
Employee William Barry Holbrook testified that the day
before the election Harvey Joe Sanders said that foremen
and salaried people were paying union dues and drawing
better benefits than they were. Several employees had
talked to him about foremen paying union dues. It was
general talk until the day of the election. Sanders denied he
told Holbrook that foremen and salaried persons were
paying union dues.
Employee Odell Thompson Harmon, who had duties
throughout the entire plant, testified that prior to the
election he heard the rumor about the plant that salaried
personnel were members of a union. Employee Reuben
Davis Morris testified that 2 weeks before the election it
was common gossip that salaried employees paid union
dues . He testified he knew it was not so as his father was a
supervisor. Union Observer Alewine, an employee of
Respondent, testified he heard rumors before the election
of check stubs of foremen and salaried personnel that
showed they paid union dues. He never saw a check stub.
Employee John T. Price testified that 2 weeks before the
election a group of employees said to him that foremen and
straight salaried employees belonged to the Union and paid
union dues. The employees had kept trying to get him to
sign a card to get an election . After they told him about the
foremen and straight salaried employees being members of
the Union, he signed a card. He did not remember the
names of employees in the group. He asked foremen after
he signed a card if they belonged to the Union. He voted in
the election according to his convictions.
E. The Evidence on the Fifth Objection
(5) Board agents in going about the plant alerting the
employees to vote sought advice and direction exclu-
sively from the Union representative and permitted the
Union observer to speak, holler at, wave his hand and
otherwise campaign with the employees in the plant
during the voting.
Most of Respondent's employees who voted on March 3
and 4, 1966, voted on company time . Those on the day shift
from 8 a .m. until 4 p.m. voted from 2 until 5 p.m. on March
3. Those on the shift from 4 p.m. until midnight voted,
where they so desired, from 4 until 5 p.m. on March 3 or
4 Several sections of the Board 's Internal Instructions and Guidelines
for Representation Proceedings ( 1967) are applicable to the issues raised by
the fifth objection . Section 11330 provides that where it is decided that
voters may vote on company time specific arrangements must be made for
doing so. Section 11330. 2 provides that the employer will usually prefer to
shut down a whole department or work unit for the few minutes it will take
for all that department or work unit to vote , and that , assuming adequate
checking tables, good eligibility lists, and minimum challenges, 90 to 100
can be scheduled to vote in each 15-minute period , and it can be assumed
that any given voter may be expected to be away from his workplace no
more than 10 minutes plus travel time. Section 11330.3 provides that in
preparing the voting schedule the time just before and after a change of
shifts should be left open for those who-prefer to vote on their own time
either before reporting for work or after leaving work. Section 11330.4
from 11:30 p.m. on March 3 until 12:15 a.m. on March 4.
Those on the shift from 12 until 8 a.m. voted between 11:30
p.m. on March 3 and 12:15 a.m. on March 4 or voted on
their time from 2 until 5 p.m. on March 3. The employees,
who worked in approximately 14 departments, that voted
on company time voted by departments. The employees
eligible to vote who were on the 8 a.m. to 4 p.m. shift
numbered approximately 350, on the 4 p.m. to midnight
shift approximately 250, and on the make-up shift from 12
to 8 a.m. approximately 40 to 47. The employees in each
department were released by a team consisting of a Board
agent and an observer for the Union and an observer for
the Respondent .4
Sobieski assigned Board Agent Maynard Holbrook
Jackson, Jr., the job of obtaining the release of the
employees by departments to vote. Union Observer
William J. Phillips and Respondent's Observer Ann Brown
assisted him from 2 p.m. until 4 p.m. on March 3. Union
Observer Alewine replaced Phillips for the period from 4
p.m. to 5 p.m. on March 3. Jackson and Brown worked with
Alewine during this hour. Board Agent Keynard replaced
Jackson for the voting session from 11:30 p.m. on March 3
to 12:15 a.m. on March 4. He was assisted by Union
Observer Alewine and Respondent Observer Brown. At the
commencement of the first voting session, Maynard was
handed a schedule showing the departments in numerical
sequence, and their locations, which was prepared by
Respondent.
Observer Ann Brown testified that Board Agent Jackson
was handed the list of departments and their locations, and
he and Phillips went where they wanted to go, and she
trailed along behind. They went to the department head or
foreman of the department. Part of the time she, Jackson,
and Phillips traveled the aisles designated as passageways
between and among departments, and from one area of the
plant to another, but at times they would take shortcuts
from one department to another by cutting through the
people in working areas . She kept asking them to slow
down because she could not keep up with them, and did not
know where they were going because they would not let her
see the list. They would slow up for a minute and let her
catch up with them and then "would take off again."
Phillips told Jackson where to go because she was not close
enough to tell him. When they went through the areas
Phillips was waving and speaking "to the people," and she
had been told not to speak to anybody, and that they were
to keep their mouths shut. Sobieski said they were not
supposed to say anything, that Jackson would do the
provides that releasing of employees to vote may be done via a public
address system or by a traveling group of observers representing each party
who may or may not be accompanied by a Board agent. If the observer
method is used the releasers should, if possible, follow the preset schedule,
staying together at all times . After first telling the applicable supervisor of
their intentions , they should notify the employees by word or sign, that
"You may go to vote now, if you wish." No one should be ordered to go to
the polling place, ' and the releasing should be done by the releasing crew,
and not by the supervisor. And Section 11326.2 provides that observers
may not electioneer during their hours of duty, whether at or away from
the polling place. In order to remove any possibilities of electioneering, an
observer away from the polling place for any reason during his duty hours
should be accompanied by observers representing the other parties.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talking. She did not say anything to Jackson about Phillips
talking to the people.
On cross-examination, Brown testified that Phillips
waved to employees in half of the departments. They went
to 10 departments. She did not recall anybody by name to
whom Phillips waved. Some employees waved back.
Phillips spoke to these employees, but she did not
remember their names. She did not put any names in the
affidavit of March 22, 1966, which she prepared personally
and in private. She did not think names were important.
There were too many of them. She could not remember
them all. Brown testified that the plant employees who
worked the 4 p.m. to midnight shift were released to vote
between 11:30 p.m. and 12:15 a.m. by Board Agent
Keynard assisted by her and Observer Alewine. She
testified she had no complaints about the conduct of this
group.
Plant Manager Gordon testified he was in department 14
about 4 o'clock in the afternoon, and observed Phillips and
Jackson going through that department, with Brown 3 or 4
feet behind them. Gordon saw Phillips wave and wink to
somebody behind him, and say "hi" to him. Gordon was
only a few feet from them. Employees Beebe, Coile, and
Jesse L. Phillips, who is the brother of Union Observer
Phillips, testified that they did not remember seeing
Gordon in department 14 when the releasing team
including Union Observer Phillips came to department 14
on March 3 to release the employees in that department to
vote. They were in department 14 at the time. They were
witnesses for the General Counsel, and supported the
Union in the election.
Employee Teel testified that he voted between 4 and 4:30
p.m. on March 3. He was on the 4 p.m. to midnight shift in
department 12. He testified that around 3:30 p.m. when he
came to work he saw Phillips walking through department
12 with Jackson and Brown, and Phillips nodded his head
and raised his hand to employees as they went down the
aisle that led to the voting area. Teel said he was standing at
the inspection desk in department 12 about 6 to 8 feet from
Phillips. He did not know if he spoke to any particular
person. The statement prepared by Board Agent Watson
after interviewing Teel and which Teel signed contains no
reference to conduct by Phillips such as raising his hand or
finger or nodding to other employees.
Employee Jordan testified that he was working in
department 12 on March 3. He worked 12 hours a day from
4 p.m. until 4 a.m. the next morning . He worked near the
aisle through which the group of Jackson, Phillips, and
Brown came, "carrying" people to vote. Phillips was in
front. Jordan was within 6 feet of them. There were three or
four working near the aisle with Jordan. He did not recall
the time they came . Phillips smiled as he came by, and one
or two times he nodded his head, and one time he raised up
his finger.
Employee Odell Thompson Harmon testified he was
working in department 17 on March 3, 1966, when Jackson,
Phillips, and Brown were releasing the employees in that
department to vote. Harmon was an experimental mechan-
ic, and worked throughout the plant. He voted about 3 p.m.
He began work at 6 a.m. and finished at 4:30 p.m. Jackson,
Phillips, and Brown were standing as the employees in
department 17 approached them and gathered in a group.
Phillips was speaking and waving his hand at them as they
approached. He was about 19 feet from Phillips when he
saw Phillips speaking, and waving his hand by holding it
waist high and flipping his wrist from side to side three
times.
Employee Reubin Davis Morris, an experimental me-
chanic based in department 17, also voted at 3 p.m. on
March 3. He worked from 8 a.m. to 4:30 p.m. About 16 to
20 employees went to the polling area. The voting area was
about 400 yards from department 17. Jackson, Brown, and
Phillips led the way to the voting area . When the employees
in department 17 were assembling to leave, Phillips threw
up his hand and said "Howdy." He was about 2 feet away
from Phillips. Phillips also spoke to employees who were
not in department 17 group going to the polls. They were
employees standing by the coffee machines and water
fountain. On the way to the voting area, he threw up his
hands to employees working near the aisle to the voting
area.
Employee Gerald Dan Craft testified that he voted in the
afternoon of March 3. He worked in departments 12 and 13
as an inspector. He saw Jackson, Phillips, and Brown in
department 13. They were in the aisle. He saw Phillips wave
a friendly wave to two or three persons. He did not see him
talking to anybody. In the affidavit written by Board Agent
Watson after interviewing Craft, and which Craft signed,
there is no mention of Craft's seeing Phillips waving to
employees, or engaging in other communication with other
employees.
Employee Jack Roper, who worked from 8 a.m. to 4:30
p.m. on March 3 as an inside maintenance man with
plantwide duties, testified he voted in the morning about
10:30 a.m. to 11 a.m. His home location was department 73.
He was released to vote by Harry Bannister , his foreman.
Phillips, Alewine, Welborn, and another person whom he
presumed was the Board Agent came to department 73 to
have the employees released to vote. They led his
department back to the voting area. Phillips was throwing
up his hands, nodding, and talking. The election party and
officials were talking together. Roper told Harry Bannister
on March 3 about Phillip's talking. He saw Phillips four
times as Phillips was in a group obtaining the release of
employees to vote. Alewine was not with him every time.
Brown was with him some of the time . The only time he saw
Welborn with the group was when she directed it to the
voting area away from the office. The group was taking the
wrong side. He was in department 11 at the time. When he
voted Brown was sitting at the table.
Board Agent Jackson is a large person. He has an
outgoing personality, is articulate, and walks with large
strides as though in a hurry. Jackson testified his duties
were releasing departments of employees to vote. He was
present in the voting area prior to the opening of the polls at
2 p.m. when the observers were told what they could do and
could not do, when the ballot box was set up and sealed,
and the voting area was inspected. He was present in the
voting area for about 10 minutes before the polls were
closed at 5 p.m. on March 3. He observed what took place,
and helped in any way he could. Brown, an observer for
Respondent, and Phillips, an observer for the Union,
MONROE AUTO EQUIPMENT CO. 105
accompanied hun when he released the voters in the various
departments.
Jackson was given a releasing schedule on which were
listed the departments in Respondent's plant in numerical
sequence There was no designation on the schedule of the
time for the release of employees of each department or of
the manner in which they were to be released. Before the
polls were opened Brown, Phillips, and he agreed that the
first department released would be the one nearest the
polling area, and each thereafter would be released in
accordance with its proximity with the one they had just
released. If the numerical sequence on the list had been
followed, at times they would have had to go from one
extreme end of the plant to the other, unnecessarily "criss
crossing the plant." They had to walk as quickly as they
could to get the departments released.
Jackson's recollection was that they showed the schedule
to Brown voluntarily. There was constant communication
among the three of them. Brown had indicated to him that
Phillips probably knew more about the location of the
departments than she did. Jackson would turn to Phillips
and ask him where the next nearest department was located
or a similar question, and after he had answered he would
turn to Brown. He did not recall her ever having to ask for
the schedule because it was always there for her to see and
it was always available to her. Three or four times Brown
made suggestions which were very helpful. Brown request-
ed a few times, perhaps three or so, that he slow down.
There was little time and many departments to release. He
slowed down to the extent that getting to the departments
and in the time allotted would permit.
Jackson testified that Phillips' conduct was consistent
with the instructions Sobieski and he gave to Brown and
Phillips that they should not converse with their fellow
employees. At no time did Phillips converse with employ-
ees. Employees waved at him, and on a couple of occasions
Phillips nodded his head but did not smile, wave, or wink,
and kept on walking. They never stopped or slowed down
when employees waved or spoke. In the majority of cases
one or both of the observers were walking along with him
because he did not know where he was going Sometimes he
would ask where they were going, and on being told would
move ahead a step or so There were some close passages
where they had to move Indian style. There was no set
pattern as to who went first and who followed. There might
have been one or two occasions when they were near the
polling area that they went back to the area and checked
with Sobieski. He did not recall any complaint made to him
about the conduct of Phillips.
Observer Alewine, a witness for the Union, testified that
he replaced Phillips at 3:55 p.m. in the group releasing the
voters at the balloting on the afternoon of March 3. All the
day shift, about 300, had voted by that time, and some of
the night shift came in early and voted. About 400
employees voted between 2 and 4 p.m. Jackson, Brown, and
he may have taken one department back to the polling area,
after he had taken over from Phillips. There was a lull. They
were in department 14
5 Hayden testified first Then Cordon and Roper testified Gordon and
Roper were in the hearing room while Hayden testified When asked on
cross -examination to explain a variation between the statement of an event
As a witness called by the Union, Phillips denied that he
waved at any employee, spoke to any employee, or winked
at any employee or gestured to any employee. He testified
that once when an employee spoke to him he reacted by
nodding his head before he would catch himself. It was then
they were in department 10. He spoke to Fred Harris, a
group leader in the department for which Harold Walker
was the foreman. Walker was not present when they went
to his department to release the employees. Harris was
behind a machine, and he leaned over the machine and said
to him that the Board agent wished to talk to him. He
talked to Jackson when Jackson talked to him. A time or
two, he, Jackson, and Brown chatted. He walked with
Jackson the way he usually walked.
Harvey Joe Sanders, department 12, called as a witness
by the Union, testified that he spoke to Phillips, when the
group of Jackson, Brown, and Phillips appeared in his
department to release the employees to vote, but Phillips
ignored him. Jessee L. Phillips, department 14, the brother
of Observer Phillips, called as a witness by General
Counsel, testified he spoke to his brother, but he did not
answer. Employees Hendrix, department 13; Ginn, depart-
ment 18; and Lewis, department 19, who were witnesses for
the General Counsel, testified that they spoke to Phillips
but he ignored them.
Employees Strickland, Brooks, Hendrix, Jessee L.
Phillips, Beebe, Coile, Norman Sanders, Ginn, Lewis, Alton
Barton Craft, Charles Alexander Ayers, Marett, T.
Osborne, and N. S. Osborne, as witnesses called by the
General Counsel, testified that they did not see Phillips
speak, smile, wave, or gesture to any employee when
Phillips, Jackson, and Brown appeared in their departments
on the afternoon of March 3, 1966, to release employees to
vote. They were in departments 10, 11, 12, 13, 14, 18, 19, 73,
and 79. These witnesses testified that they supported the
Union in the election.
F. The Evidence on the Sixth Objection
(6) Board agents permitted the ballot box to be
completely unattended in a room with an open door.
Three witnesses testified for Respondent that they saw
the ballot box left untended in the office of Charles
Gordon, Respondent's plant manager, in the period
between 11 and 11:25 p.m. immediately preceeding the
beginning of the second session of the election that began at
11:30 p.m. on March 3, 1966, and ended at 12:15 a.m. on
March 4, 1966. They were Neil S. Hayden, publisher of the
Athens, Georgia, Banner-Herald and Daily News, who was
editor and publisher of the Hartwell, Georgia Sun at the
time of the election; Plant Manager Gordon; and George
E. Roper, industrial relations manager of Respondent.5
Respondent's Observer Brown and Welborn gave testimo-
ny about the condition of the ballot box at the beginning of
the second session of the election beginning at 11:30 p.m.
on March 3, 1966, and its condition at the end of the
election at 12:15 a.m. on March 4, 1966. Board Agents
Sobieski, Keynard, and Jackson and Union Observers
Alewine and Phillips testified in rebuttal.
in his affidavit that he gave the Board agent shortly after the March 3,
1966, election, and his testimony at the hearing, Gordon stated he was
influenced by Hayden's testimony
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant Manager Gordon testified that he returned to the
plant about 11 p.m. on March 3. It was raining. The gate he
approached was locked, and he unlocked it. There were two
other cars waiting at the gate. After he unlocked the gate,
the three cars were driven to the parking area. He and John
E. Tate, one of Respondent's attorneys, who was in his car,
and the occupants of the other cars ran in the rain to the
door of the plant which was unlocked. He saw Keynard
running with the ballot box in his arms. Another person was
with him.
The door was an entry to a foyer about 10 feet wide. On
the left side was the wall of his office, and on the right side
the wall of the general office. Directly ahead was the wall of
the quality control office, about 18 feet from the door he
entered. The wall of his office on the left was 15 feet long
and the wall of the General Office on the right ran the full
length of the 18 feet. The space of 3 feet between the end of
his office wall and the wall of the quality control office
directly ahead was part of a hallway of that width running
at right angles to the space from the door to the wall of the
quality control office. On this hallway to the left fronted
offices, including Gordon's. The hallway ended to the right
in the doorway to the general office. The general office, like
his office, could not be entered from the foyer. The door to
his office was right next to the junction of his office wall on
the left side of the foyer with the wall of his office facing the
small hallway. People in the foyer could not see into his
office. To look in, they would have to come to the small
hallway and turn left, and either stand at an angle or stand
in front of his office door.
Gordon and Tate entered Gordon's office from the small
hallway, and shook their coats and hung them on a rack in
the corner. When they were coming through the foyer to
Gordon's office there were persons in the foyer. He could
not recognize them because of rain on his glasses. They
stayed in the foyer. One of them came to the door of his
office, and he asked him if he could use the restroom, and
he told him to go ahead. Keynard came into his office with
the ballot box, and placed it on a chair. He did not recall
that Sobieski came in with him. Gordon did not recall
Sobieski although he recalled Board Agent's Keynard and
Maynard Jackson. Sobieski did not recall Gordon when he
testified. Keynard had shaken the rain from his coat in the
foyer, and had placed the coat over the back of a chair in
the foyer. Keynard left the office immediately. Hayden, the
newspaper editor and publisher, came into the office. He
placed his coat on the ballot box. He, Gordon, told Hayden
to get his coat off the ballot box. At this time, he realized
that Hayden, one other person connected with Respondent,
and himself were alone in the office. Gordon said to them
that they should get out of the office, that they should not
be in the office alone with the ballot box. He went looking
for Keynard to tell him the ballot box was in his office with
no one there to watch it. He looked into an office called the
executive office, which was down the hallway from his
office toward the plant, and saw persons in it drinking
coffee. He also looked into the IBM room. There were some
persons in there drinking coffee. He did not go into the
executive office or the IBM room with Hayden or the other
person who was with him. The other person could have
been Tate as he had come in with him. He went to the
coffee machine, in the plant, about 120 feet from his office,
and had coffee. He returned to his office about 11:25 p.m.
Keynard was sitting in the office guarding the ballot box.
His recollection was that Sobieski was not with him.
Gordon was away from his office about 15 minutes. At
11:25 p.m., Keynard motioned to everybody it was time to
go to the voting area, and they started down the hall to that
destination in a group.
On cross-examination, Gordon's recollection was re-
freshed by reference to his affidavit which he gave to a
Board agent on March 31, 1966. It contained his
recollection at that time of what happened in connection
with his return to the plant about 11 p.m. to the time the
Board agents and observers went to the polling area.
Gordon stated that the statements in the affidavit were
more accurate because they were made closer to the
happening of the events on March 3, 1964. Gordon signed
the affidavit after making corrections of the Board agent's
writing of what happened as he understood Gordon's
statements to him.
In his affidavit, Gordon stated that he did not recall
seeing Hayden during the period from I 1 p.m. to the time
the Board agents and observers went to the polling area
about 11:25 p.m. This statement was brought to his
attention in connection with his direct testimony that
Hayden came into his office after Keynard brought in the
ballot box, and Hayden placed his coat on the ballot box
and he told him to remove it. Gordon testified that 3 years
had elapsed since the election, and apparently he testified
as he did on direct after listening to Hayden's testimony of
what had occurred. In the affidavit, Gordon stated that
both Keynard and Sobieski came into his office with the
ballot box. He testified on direct examination that he
recalled that Keynard only came into the office. Gordon
stated in his affidavit that he did not know the time the
Board agents and observers went to the polling area.
Gordon testified on direct examination that they went to
the polling area at 11:25 p.m.
Hayden testified that he arrived at the plant at I 1 p.m. In
the lobby or foyer were two men whom he later found to be
the two union observers, Alewine and Phillips. He walked
into Gordon's office, took off his hat and raincoat, and laid
the raincoat on the ballot box. Tate said to him that he had
put his raincoat on the ballot box. His recollection was that
Gordon was also in the office. He and Gordon and Tate
walked down to the executive room, an extra office at the
time. It was 11:10 to 11:15 p.m. A short time later he
walked back to the lobby (foyer) to look at the clock. He
looked at the clock in the lobby and saw it was 1 1 :25 p.m.
The two men he saw in the lobby when he came in were still
in the lobby. As he walked by Gordon's office he saw there
was nobody in the office. Within a minute or two, two
NLRB people came in and took the box that was in
Gordon's office and went back into the plant. It was the
box that Tate had told him was the ballot box. He also went
back into the plant but did not recall where he stood. He
was present in the polling area when the ballots were
counted, but did not watch the counting. He took a picture
of the persons counting the ballots over the heads of the
large number of people watching the counting. He wrote a
story about the election.
MONROE AUTO EQUIPMENT CO. 107
On cross-examination by the Union's attorney, Hayden
testified he was in Gordon's office for 5 to 10 minutes after
arriving there at 11 p.m. He recalled someone coming to the
door of Gordon's office and asking a question and then
going back toward the plant. He remained 10 to 12 minutes
in the executive room. There were some persons in this
room having coffee and holding a discussion. He did not
recall who they were. He knew Joseph S. Skelton, one of
Respondent's attorneys, was somewhere, but he did not
know where. Then he went to the lobby to see what time it
was. He looked into Gordon's office and saw the ballot box
on a chair. There were no persons in the office. He could
see all of the office. When he went to the lobby to look at
the clock, he saw the same two men there whom he had
seen when he entered the plant at 11 p.m. He saw it was
11:25 p.m. He could have had a wrist watch on his arm, but
went to look at the clock to have something to do. He
returned to the executive room and saw the same people
drinking coffee and making small talk. Tate and Gordon
were there. He thought Roper and Skelton were there but
he was not sure. He knew the box he saw in Gordon's office
was the ballot box because it was the box that the Board
representative picked up and carried to the polling area. He
had left the executive room and was in the hall outside
Gordon's office when the two NLRB men came in, through
the front door. He believed they were wet.
On cross-examination by counsel for the General
Counsel, Hayden testified he went back to Gordon's office
at 11:25 p.m., and at that time the Board agents appeared to
come in from the outside. He was standing in the hall
outside Gordon's door. It was 11:25, 26, 27, or 28. He
believed he looked in Gordon's office on the way back from
looking at the clock instead of when he was on the way to
look at it. He believed that when he, Tate, and Gordon first
left Gordon's office there was not anyone left in the office.
There might have been seven or eight people in Gordon's
office, including Sobieski and Keynard, when he first
arrived there about 11 p.m.
Counsel for General Counsel referred Hayden to the
affidavit he had signed and had given to a Board agent
shortly after the March 3 election. After reading it, Hayden
testified he was in Gordon's office only 3 or 4 minutes, not
10 to 15 minutes, from the time he first arrived there, 11
p.m., until he went to the executive room. He testified that 5
minutes, not 15 minutes, elapsed between the time he left
Gordon's office, at 11:03 or 11:04 p.m., until he went back
to look at the clock, as he had testified. He testified it was
11:15 p.m. when he saw the two Board agents in the hall
outside Gordon's office, and not 11:25 p.m. as he had
testified on direct examination, and that the Board agents
were in Gordon's office about 10 minutes after he saw them
at 11:15 p.m., and did not pick up the ballot box when he
first saw them, allegedly 11:25 p.m., and carry it to the
polling area, as he had testified on direct examination.
Roper testified that he and Skelton, one of the attorneys
who represented Respondent, returned to the plant at
approximately 10:45 p.m. on March 3. They went to
Gordon's office. Board agents and union people came into
the foyer at approximately 11 p.m., and he and Skelton
went to the foyer and greeted them. Between 11 p.m. and
the time the balloting began he was in and out of the
various offices, making telephone calls, and checking with
people to try to assure everybody a place to sit down if he so
desired, and engaging in other similar activity. He acted as
office manager as well as industrial relations manager.
Between the time he greeted the people in the foyer at 11
p.m. and the time the Board agents went back to the voting
area he went past Plant Manager Gordon's office. The door
was open and he saw the ballot box on a chair in his office.
He saw no one in the office. The wall of Gordon's office
facing the small hallway was comprised of sections of
frosted glass, and the figure of anyone in the office not
visible through the door could be seen through the glass.
On cross-examination by the attorney for the Union,
Roper testified that when he went into the foyer at 11 p.m.
he saw two Board agents, and Alewine and Phillips whom
he considered to be the union observers. He considered the
union observers to be union people. He did not know if
there were other union people present. He saw the ballot
box unattended on one occasion only in the interim
between I1 p.m. and the time the Board agents and
observers went to the voting area, which was 11:20 or 11:25
p.m. Gordon and Tate appeared after he had greeted the
Board agents and union people. He saw the observers for
Respondent later. When he saw the ballot box he was going
to the front office from the data processing office (IBM
room). He did not see anybody in the hallway. There were
people in the foyer. He did not know if the Board agents
were there. The union observers were in the foyer but he did
not recall where they were standing.
Counsel for the Union referred Roper to an affidavit he
gave Board Agent Watson on March 26, 1966. The
reference in the affidavit about Roper seeing the ballot box
unattended included a statement that he did not see
whether anyone was or was not in Gordon's office when he
saw the ballot box. Roper testified that this language was
Board Agent Watson's, that he said to Watson that he did
not see anyone in the room. He further testified that he
questioned Watson about the language, and he replied that
it was irrelevant, that they were going to get another
election anyway. Roper was also referred to a statement in
the affidavit that he saw the Board agents in the foyer. He
recalled making this statement to Watson. On cross-
examination by counsel for General Counsel, Roper
testified that the Board agents were in the foyer at the time
he saw the ballot box unattended. He testified on redirect
that everybody in the foyer was standing to his right as he
approached the foyer, and it would be impossible for them
to see anyone who came up the hallway and enter Gordon's
office. He gave the same testimony on recross-examination.
Roper again testified that he questioned Watson's writing
of events as he related them to Watson, and that Watson
said that the way it was stated was irrelevant, that they were
going to get another election anyway.
Respondent's Observer Brown was asked a leading
question on direct examination in regard to an event that
occurred about the time the observers and Board agents
went to the voting area that evening of March 3, 1966, for
the second voting session. She was referred to 11:30 p.m. as
the time when they went to the voting area. She, in
answering the question, left the impression that her
testimony was that they went to the voting area at 11:30
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
p.m. In an affidavit dated March 22, 1966, which Mrs.
Brown gave, and which she personally prepared, Mrs.
Brown stated that they went to the polling area at 11:15
p.m. Mrs. Virginia Welborn, the other observer for
Respondent, testified that they went to the polling area at
11:15 to 11:20 p.m. Roper testified on cross-examination by
the union attorney that they went to the voting area at
11:20 to 11:25 p.m.
On direct examination, Keynard testified that he and
Sobieski arrived at the plant at 11 p.m. on March 3, 1966.
He removed the ballot box from the trunk of the
automobile they were using. It had been there at all times
since the end of the first voting session at 5 p.m. They
walked into Plant Manager Gordon's office. Skelton, Tate,
and Gordon were there. He placed the ballot box on a chair
and sat down near it. Sobieski came in with him. He
recalled that someone came in Gordon's office after they
did. This person asked Sobieski whether he could use the
bathroom, and asked for directions. Tate told him it was all
right after he had inquired where the person was going, and
had been told the person wished to go to the bathroom.
Sobieski and he stayed in Gordon's office until about 11:15
p.m. At or about 11:15 p.m., all the observers, the company
officials and attorneys, and he and Sobieski gathered
together, and proceeded to the voting area.
Keynard recalled that during the time he and Sobieski
were in Gordon's office a man came in and placed his hat
on the top of the ballot box. Tate, Respondent's counsel,
jumped up, and he jumped up and said "That box has got
to be free and clear and nobody is supposed to be anywhere
near the box except a Board agent." The man removed his
hat. Keynard then testified that from 11 p.m. when he first
entered Gordon's office until they proceeded to the voting
area he was right next to the ballot box in Gordon's office,
and the ballot box was not out of his sight or his reach. He
testified that Sobieski remained in the room with him, but
might have gone as far as the door when an observer asked
him about going to the bathroom.
Sobieski testified that he and Keynard returned to the
plant at approximately 11 p.m. on March 3, 1966. They
took the ballot box out of the trunk of the automobile they
were driving. They brought it into Plant Manager Gordon's
office. He was not positive whether he or Keynard carried
it. They met Skelton and Tate in Gordon's office. It was
raining. Somebody entered Gordon's office while he and
Keynard were there. He placed his hat and raincoat on the
ballot box. Those present made a joke of this incident. It
was remarked by someone present that he had put his hat
and coat on hallowed ground. One of the union observers
came to the door of Gordon's office, and asked if he could
go to the men's room, and he allowed him to do so as they
had some time before moving to the polling area Tate went
after the observer, and asked him where he was going
Sobieski said he let him go to the "head" because there was
time. Tate said he did not want him running around the
plant. Alewine's and Phillips' testimony discloses they told
Tate they were going to the restroom in the plant, and Tate
told them to use the restroom on the hallway close to
Gordon's office. At 11:15 p.m. Sobieski, Keynard, Skelton,
Tate, and the observers moved toward the voting area.
Sobieski testified he did not know Plant Manager
Gordon , that he believed he was the gentleman sitting next
to Tate at the counsel table . He recalled there were others in
Gordon 's office besides Tate , Skelton , Keynard , himself,
and the person who put his coat on the ballot box. He
recalled he had a conversation with Skelton about his
helping him cash a check at a local bank sometime during
the day. He testified he was in the office from the time he
arrived there until they went to the polling area back in the
plant , and that the ballot box was sitting in a chair during
that time . The closest he was to leaving was when he talked
to the union observer at the door about the latter 's request
to go to the restroom . He testified that Tate was also
present during this time except when he went after the
observer who was on his way to the restroom in the plant.
Sobieski testified on cross-examination that he did not
recall whether the union observers were present in the foyer
when he and Keynard entered the plant at 11 p.m. He
testified he expected them to be there as he had told them
he would be there at I I p.m.
Union observer Donald Alewine testified that he
returned the evening of March 3 to the plant for the second
voting session . He arrived at the plant about 11:10 p.m.
Union observer William J . Phillips was there with his
brother. He and Phillips went in together . They walked
through the door leading to the foyer . He wished to go to
the restroom , and went to the door of Gordon 's office,
stuck his head in , and asked if he and Phillips had time to
go to the waterhouse. The men 's restroom in the plant was
called the waterhouse . Sobieski said they still had a few
minutes, and they started toward the plant . Tate stopped
them and asked where they were going. When he learned
where they were going, he told them to use the office
restroom across the hallway from Gordon 's office. He
remembered that Sobieski, Keynard , Tate, and Gordon
were in the office . When he and Phillips came out of the
restroom the Board agents, the two observers for Respon-
dent , and Tate were standing in the hallway. Sobieski said
"Let's go." It was about 11:15 p.m. He and Phillips,
Respondent's observers Anne Brown and Virginia Wel-
born, Sobieski , Keynard, and Tate went to the polling area
immediately.
Union observer Phillips testified that he and Alewine
returned to the plant around 11 : 05 to 11:10 p.m. on March
3, and went to Gordon's office door about 11:10 p.m. He
corroborated the remainder of Alewine's testimony except
that he testified he saw Skelton in Gordon's office in
addition to the others Alewine named , and saw Skelton in
the group leaving for the polling area in addition to those
Alewine named. He testified he did not see the ballot box
when he looked in Gordon's office at the time Alewine
asked if there was time to go to the waterhouse . Alewme did
not testify as to whether he saw the ballot box when he
looked in Gordon's office.
There is undisputed evidence that at the conclusion of the
first voting session at 5 p .m. on the afternoon of March 3,
Board Agent Sobieski sealed the slit on the top side of the
ballot box through which the voters placed their ballots in
the box . He sealed it with a piece of masking tape 2-1/2
inches in width , and each of the four observers wrote his or
her signatures on the box left of the tape and close to the
slit, across the tape over the slit or close thereto, and on the
MONROE AUTO EQUIPMENT CO. 109
box on the right side of the tape and close to the slit. No one
complained at this time that the slit was not sealed, or not
properly sealed.
At the time the box was sealed at the close of the first
voting session at 5 p .m., or at the time just before the
commencement of the second voting at 11:30 p.m., a
certification on conduct of election for the first voting
session was signed by each of the four observers and by
Sobieski. They certified that the balloting at the first session
of the election from 2 p.m. to 5 p.m. on March 3, 1966, was
fairly conducted, that all eligible voters were given an
opportunity to vote their ballots in secret, and that the
ballot box was protected in the interest of a fair and secret
vote.6 Keynard had custody of the ballot box from the time
it was sealed at 5 p.m. on March 3, 1966, to the time it was
placed on a chair in the voting area about 11:20 p.m.
During the period from 5 until 11 p.m. Keynard had it
under lock and key in the trunk of the automobile he was
using. There is the issue of course whether the ballot box
was left unattended by Keynard and Sobieski for a period
of 5 to 10 minutes after Keynard had placed it on a chair in
Plant Manager's Gordon's office about 11 p.m.
Although the ballot box was exposed to the view of the
group that went to the voting area from Gordon's office,
when it was carried from Gordon's office to the voting area
for the second voting session, and to the view of others as
well when it was in Gordon's office, no complaint or other
comment was made that the seal was any different than
when affixed by Sobieski and when the observers wrote
across it. Sobieski testified that he showed the ballot box to
the observers and Board Agent Keynard about 11:30 p.m.
after they had arrived at the voting area, and he thereupon
removed the seal and announced that the polls were open.
Keynard, Alewine, and Phillips corroborate this evidence.
Keynard testified he was the one who removed the seal, but
I credit Sobieski. Observers Brown and Welborn testified
that they did not see the seal removed, and were not given
6 Section 11332 of the Board 's Internal Instructions and Guidelines for
Representation Proceedings (1967) provides:
At the close of a voting session which is not the last one, observers
should sign the certification on conduct with the added notation
"Session #I " or "a.m . session."
The ballot box slot should be securely sealed , and observers should be
encouraged to make any markings thereon which will assure them,
upon resumption of voting, that the box has not been tampered with.
Badges should be collected.
Between voting sessions the ballot box is retained by the Board agent
who is solely responsible for the custody of the box.
7 Testimony was given of the events that transpired in connection with
the closing of the polls at 12:15 p.m., and the counting of the votes and the
signing of the tally of ballots. This evidence shows clearly that these events
were conducted in accordance with the laboratory conditions in the
Board's instructions and guidelines , and I so find . The court found it
unnecessary to take evidence on objections of Respondent regarding these
events, holding that the objections were insubstantial . I do not make
specific findings in regard to these events , as they are not in issue. Mrs.
Welborn testified she found a marked ballot on the floor the next day, and
that it was marked against representation by the Union. However, this
ballot , which could not have decided the election , could have been on the
floor due to any one of a number of reasons . Mrs. Welborn also testified
that at the same time the next day she saw the ballot box with one of the
sides open . When the ballot box was upturned by Sobieski on the morning
of March 4 , and the ballots were dumped on the table in the voting area
preparatory to their being counted, Sobieski hit the box hard with his fist
to dislodge any ballots that may have been stuck in the flaps inside the
box. This action by Sobieski opened up the side of the box. Observers
Welborn, Brown, Alewine and Phillips, and Sobieski , at the conclusion of
the opportunity to do so. I find they had the opportunity,
but may not have taken advantage of it. Brown, Welborn,
Alewine, Phillips, Sobieski and Keynard, and Tate went to
the voting area in the group from Gordon's office about
11:15 p.m. Skelton may have also been in the group. Any
tampering of the seal would have been noticed at this time
by one of the persons representing Respondent. The ballot
box rested on a chair in the voting area from the time the
group reached the voting area, about 11:20 p.m. until
Sobieski showed it to those present just before removing the
seal and announcing that the polls were open. Tate,
Respondent's attorney, was present until just before
Sobieski removed the seal, checking to see that everything
was in order. It is difficult to believe, and I do not believe,
that any tampering with the seal would have been
unnoticed by him.7
G. Credibility Resolutions
Upon evaluation of demeanor testimony and oral and
written evidence in context I make the following credibility
resolutions.8
1. The first objection
I credit the testimony of Respondent's employee
witnesses Teel, Jordon, Howard Sanders, Gerald Dan
Craft, Johnson, Holbrook, and Bowen that employees
supporting the Union said to them they would lose their
jobs if they did not vote for the Union in the March 1966
election. The employee union supporters making these
statements were Harvey Joe Sanders, Reed Ayers, Claude
Fulgam, Charles Ward, Ray Vickory, Ralph Vickory, and
Andy Adams.
I do not credit the testimony of Phillips and Madden that
employee union supporters said to them they would lose
their jobs if they did not support the Union. They refused to
the voting , the counting of the ballots, and the signing of the tally of votes,
signed a certification on conduct relating to the voting at the second
session from 11 : 30 p.m . on March 3, 1966, to 12:15 p .m. on March 4, 1966.
Like their certification for the first voting session that was held from 2 to 5
p.m. on March 3, it was a certification that the balloting was fairly
conducted, all eligible voters were given an opportunity to vote their ballots
in secret, and the ballot box was protected in the interest of a fair and
secret vote . No one complained.
8 Witnesses were questioned on cross-examination on their testimony on
direct in relation to statements taken by Board Agent Watson regarding
the preelection conduct and conduct during the election . Watson had
asked the witnesses questions and they answered . Watson then reduced the
answers to writing in the form of narrative statements , and the witnesses
signed them . A verification before Watson is present on the statements.
Some of the witnesses gave testimony at the hearing not included in their
statements . Unless the : demeanor and other testimony of these witnesses
showed they were not reliable, and there is evidence that Watson
completely exhausted their knowledge of events at the time the statements
were taken, I do not consider their testimony regarding events to be lacking
in probative value merely because there are no references to the events in
the statements . This applies even where a sentence is present above the
signature of a witness that the statement or affidavit includes his complete
knowledge of what occurred or there is present some other boilerplate
sentence of the same meaning. The Board agent may not have asked the
questions that would have elicited the answers about the events which he
then would have reduced to writing . Affidavits are not a substitute for
affirmative oral testimony in a hearing for the taking of oral testimony. An
exception is where the affidavit or statement is an admission against
interest by a party, and properly identified . Affidavits or statements may
be used to refresh the recollection of a witness or to impeach him.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclose the identity of the employees making the
statements to them . Phillips refused because he wished to
avoid causing trouble in the plant . Madden refused because
of fear of reprisals in the form of resumption of anonymous
telephone calls which he and his wife received for about 2
weeks before the election . His wife received the calls made
about 11 p .m. when he was working on the second shift. He
received the later calls made as late as 3 a.m. in the
morning . Mark Louis Johnson who was told while waiting
in line to vote by other employees that he would lose his job
if he did not vote for the Union did not know the identity of
the employees making the statement to him . I credit his
testimony as corroborative testimony.
I credit the testimony of employee Jordan that Claude
Fulgam , as a member of a group of employee union
supporters talking to him, said to him that employees who
did not support the Union could be beaten up with chains. I
further credit the testimony of employee Mize that
employee Andy Adams said he would have to whip him
when he spoke against selecting the Union to represent the
employees . I find further from all the evidence , including
demeanor testimony , that Adams ' statement was not
friendly. I do not credit Adams ' and Seawnght's testimony
that it was friendly. I credit the testimony of employee
Howard Sanders that employees Jerry Garland and Britt
Sorrells tampered daily with his machine for a period of
time before the election because he did not support the
Union , and that he had to spend an hour each day at the
beginning of his work shift to correct the results of the
tampering in order to begin normal machine operation.
2. The second objection
I credit Jordan's testimony that on the Sunday evening
before the Thursday on which the election was held he
received a telephone call by an unidentified caller at Terry's
Service Station in Hartwell where he was helping out the
owner who was ill , and the unidentified caller cursed him
and promised "to get him" if he did not vote for the Union.
The caller made these statements after saying Jordan was
"running his mouth" and they were watching him. I credit
the testimony of Howard C. Sanders, who was employed on
the 4 p.m. to midnight shift, that while sleeping early one
morning during the period of the organizational activity
preceding the election, an unidentified caller telephoned his
home, and, when he was called to the telephone by his wife,
asked him if he was going to sign a union card , and when he
replied that he was satisfied with what he was being paid,
the caller said "Go to hell, God damn you." I credit
Madden's testimony that within the 2-week period before
the election telephone calls were made to his home by
unidentified callers. As many as three were made daily. The
first call was around 11 p.m. when he was still working on
the second shift, and the last about 3 a.m. in the morning.
The 11 p.m. call was received by his wife and frightened
her.
I credit employee Kay's testimony that about 7:30 p.m.
on March 3, the day of the election, when he was working
on the second shift, he received a telephone call by an
unidentified caller who stated that he would kill him at 1
a.m. for what he did outside the plant gate that afternoon.
Kay had been at the gate that afternoon, and had said to
the employees as they entered that they should vote and
think for themselves. Employee Hendrix appeared in the
polling area that afternoon , after he had voted, and
attempted to complain to Board Agent Sobieski about
Kay's conduct at the plant gate , but Sobieski refused to
listen and requested him to leave . Hendrix complied with
his request.
3. The third and fourth objections
I credit Teel's testimony that Claude Fulgam said to him
and other employees in department 12 before the election
that management paid union dues, it was on their check
stubs, and they received better benefits because they
belonged to the Union; that he saw Fulgam show the other
employees a check stub or voucher of a supervisor's
paycheck, that he spoke to Gerald Davis, his foreman,
about what Fulgam said to him and the other employees;
and that Gerald Davis came to him and the other
employees with check stubs, showed them the deduction
under the heading of union dues or other, and said it was
for Georgia income tax. I credit Jordan's testimony that, a
week or two before the election , Fulgam made the same
statement to him about foremen and supervisors being
members of the Union, and having more benefits because
they were members, and left a check stub on his machine
for him to look at.
I credit Craft's testimony that about 2 weeks before the
election , Harvey Joe Sanders told him that foremen and
supervisors belonged to the Union, and he could prove it by
check stubs, and that he also said to him that they had more
benefits than rank-and-file employees had because they
had membership in the Union. I credit Holbrook's
testimony that the day before the election Harvey Joe
Sanders said to him that foremen and salaried people were
paying union dues and drawing better benefits than they
were . I do not credit Sanders ' denial that he made this
statement to Holbrook . I also credit the testimony of
Harmon, Reuben Davis Morris, and union observer
Alewme that there was a general rumor in the plant before
the election that salaried personnel were union members
and paid union dues.
I do not credit employee John T. Price's testimony that 2
weeks before the election a group of employees that had
been trying to get him to sign a card, but whose names he
did not remember, said to him that foremen and other
straight salaried employees belonged to the Union and paid
union dues, and that following this representation to him he
signed a card, or his testimony that after he signed the card
he asked foremen if they were members of the Union and
paid dues to the Union . In these circumstances , Price's
failure to remember the names of the employees is the same
as a refusal to disclose the names . It appears to me that
Price could have remembered, upon reasonable effort, the
names of employees who had tried a number of times to
persuade him to sign a union card.
4. The fifth objection
Upon evaluation of the testimony of all the witnesses who
gave testimony at the June 1969 hearing in regard to union
observer Phillips ' conduct when releasing voters on the
MONROE AUTO EQUIPMENT CO. 111
afternoon of March 3, 1966 to vote in the election held at
Respondent's plant on that date I make, in the following
paragraphs, findings with respect to this conduct.
The team of Board Agent Jackson, Respondent's
observer Brown, and union observer Phillips left the polling
area to release voters shortly after the polls were opened at
2 p.m., and did this work until approximately 3:55 p.m. At
this time union observer Alewine replaced Phillips as the
second shift employees who began work at 4 p.m. voted
from that time until the polls were closed at 5 p.m. Alewine
who worked on the second shift had a better knowledge of
the second shift employees. Jackson, Brown, and Alewine
released voters until 5 p.m. At the second voting session
which began at 11:30 p.m. and ended at 12:15 a.m. the team
releasing the voters consisted of Board Agent Keynard,
Brown, and Alewine. Alewine's conduct in releasing voters
either during the period from 4 to 5 p.m. on March 3, 1966,
or from 11:30 p.m. to 12:15 a.m. on March 3 and 4, 1966, is
not in issue.
The team of Jackson, Brown, and Phillips visited 10 to 14
departments on the afternoon of March 3. Jackson talked
to the foremen of each department to inform him that it
was time for the employees in his department to vote. The
employees in the department were informed by Jackson,
and in a few instances by Phillips to assemble at the
foreman's desk. Then Jackson told the employees they were
released to go to the polling area to vote, they should leave
as quietly as possible, and they should return to their work
locations as quickly as they could.
Jackson was a stranger to the layout of the plant area and
the locations of the departments. Brown was not familiar
enough with the plant area to give quick instructions to
Jackson as she had been an office employee since
September 1963, and had worked in the plant area only
from May 1963 to September 1963. Phillips, on the other
hand, was familiar with it. He had been employed by
Respondent at the time of the election in the plant area for
a total of 3 years. Jackson relied on Phillips for the
locations of the departments and the quickest route to each
of them. Phillips on many occasions walked abreast with
Jackson to be of assistance to him. Brown walked behind,
and had difficulty in keeping up with the long quick strides
of Jackson. There were times when Brown walked abreast
of Jackson. On occasion the team would use intradepart-
ment aisles instead of general lanes or interdepartmental
aisles as short cuts to save time.
The team did not lead the departmental groups from their
respective departments to the voting area. There were three
or four occasions when Jackson was of the opinion that
further instructions from Sobieski were necessary and they
returned to consult with him. They also returned to the
voting area about 3:50 p.m. so that Alewine could change
places with Phillips. With Alewine as a member, it returned
to the polling area shortly before 5 p.m. upon completing all
releasing assignments. When Jackson, Brown, and Phillips
returned to the voting area, it appeared they were leading
the employees down the general lanes in the direction of the
voting area.
I credit employee Teel's testimony that about 3:30 p.m.
he saw Jackson, Phillips, and Brown in the general lane
leading to the voting area from the place he was standing in
the vicinity of department 12, and that Phillips was about 6
to 8 feet from him when he passed by. I credit his testimony
that Phillips nodded his head and raised his hand. I do not
credit Teel's testimony that the nod and raising of the hand
were directed at employees. It is undisputed that Jackson
with his effervescent personality talked with Phillips as they
moved from one location to another. The nod and gesture
were physical movements of Phillips connected with his
conversation with Jackson.
I credit Jordan's testimony that he saw Phillips the
afternoon of March 3 when he was releasing employees to
vote along with Jackson and Brown . He was returning to
the voting area , and Jordan was standing about 6 feet from
him in the vicinity of department 12 when he saw him.
Jordan began work at 4 p.m. while Phillips ceased releasing
employees to vote about 3:50 p.m. However, I credit
Jordan's affirmative testimony that he saw Phillips. Teel's
testimony discloses that the releasing team was in the
vicinity of department 12 between 3:30 and 4 p.m. Jordan
had arrived about this time, like Teel, to be ready for work
at 4 p.m. I credit Jordan's testimony that Phillips smiled as
he passed him, nodded his head twice, and raised his finger
once. I do not credit his testimony that the smiling,
nodding, and raising of the finger were directed at the four
employees nearby. I find they were physical movements
related to his conversing with Jackson. I make the findings
on Teel's and Jordan's testimony, partly on the testimony
of Jackson, Phillips, and the witnesses for the General
Counsel who were in the vicinity of department 12 at that
time. General Counsel's witnesses were Strickland and
Brooks.
I credit employee Harmon's testimony that he was about
19 feet from Phillips when he, Jackson, and Brown arrived
in department 17 to release the voters, and that he was
saying something to the employees in department 17, and
signaling to them by flipping his wrist, as they approached
Phillips and the others, where they were standing near the
foreman's desk. The employees were informed by Jackson
that they were being released to vote, were to go as quietly
as possible to the voting area, and were to return as quickly
as possible to their work locations. I credit Harmon's
testimony he did not hear what Phillips said. I find that
Phillips by word of mouth and by signaling with his hand
was merely directing the employees to go where Jackson,
Brown, and he were standing. This is permissible conduct
for an observer under the Board's Internal Instructions and
Guidelines referred to supra, footnote 4. I rely partly on the
testimony of Jackson and Phillips for this finding.
I credit the testimony of Reuben Davis Morris, who like
Harmon, was in department 17 when Jackson, Phillips, and
Brown arrived to release the employees in that department
to vote, that as many as 16 to 20 employees were assembling
in a group where Jackson, Phillips, and Brown were
standing, and the assembling was being done partly in
response to Phillips' direction by word of mouth and
signaling. Phillips said "howdy" as the employees were
assembling. I also credit Morris' testimony that Jackson,
Phillips, and Brown were in front of the employees 2 feet
from Morris, at least part of the way to the voting area, and
that Phillips said "howdy" to employees of other depart=
ments standing at the coffee machines and water fountain
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as he and the others in the releasing group passed them, and
also that, while Phillips and the others in the group were in
front of Morris and the other employees, Phillips raised one
of his hands a couple of times. I do not credit Morris'
testimony that Phillips raised his hand in the direction of
employees working near the aisle when he passed them. The
raising of the hand could well have been in connection with
a conversation between Jackson and Phillips. In making
these findings I also rely in part on the testimony of
Jackson and Phillips, and the Board's internal instructions
and guidelines referred to supra, footnote 4.
I do not credit employee Craft's testimony that he saw
Phillips in the aisle in department 13 along with Jackson
and Brown on the afternoon of March 3, and that, although
he did not see him talking to anyone, he did see him waving
a friendly wave to two or three other people. Craft was
employed on the second shift which began work at 4 p.m.
Phillips was not in the group releasing employees after 3:50
p.m. There is no testimony of the time Craft was in the
vicinity of department 13 before he began work at 4 p.m. In
any event, if he was present and saw Phillips moving his
hand toward employees, this movement was a signal to
them to assemble or to start moving toward the voting area.
It was in connection with his duties as a member of the
group releasing the employees. I make this finding partly on
the testimony of Jackson, Phillips, General Counsel's
witness Hendrix, and the Board's Internal Instructions and
Guidelines supra, footnote 4.
I do not credit the testimony of Plant Manager Gordon
that he was in department 14 about 4 p.m. on the afternoon
of March 3 and saw Phillips wave and wink to somebody
behind Gordon, and wave and say "hi" to him. Phillips was
not releasing employees at 4 p.m. He was back in the voting
area at 3:55 p.m. to take over Alewme's duties in the voting
area. I credit Alewine's testimony that Phillips, Brown, and
he, as a releasing team, were in department 14 shortly after
4 p.m. and went from there to the voting area in front of the
department 14 employees they released to vote. There is no
issue with respect to Alewine's conduct.
In making this finding I also rely on Gordon's demeanor
testimony as a witness and his faulty recollection at the
hearing of events that occurred on March 3, as will be
disclosed in connection with his testimony relating to the
objection that Board agents left the ballot box unattended.
The third basis for rejecting his testimony is the testimony
of Jackson, Phillips, and General Counsel's witnesses
Beebe, Coile, and Jesse L. Phillips. The latter witnesses
were in department 14 at the time the releasing team,
including observer Phillips, came to that department. They
testified they did not recall seeing Gordon in that
department on the afternoon of March 3. Respondent
offered no testimony to corroborate Gordon's testimony of
his claimed coincidental appearance in department 14 at
the time the releasing team including Phillips was present
there, and his hearing Phillips say "hi" to an employee, and
seeing him wave at him. None of the employees who
testified for Respondent were employed in department 14.
Neither did Respondent offer evidence, nor did Gordon
testify, regarding what brought him to a department and his
watching what was taking place there when the employees
were allegedly grouping to go to the voting area. His
presence could well have a persuasive impact on the minds
of the employees with respect to their decision to vote
against or for the Union.
I do not credit the testimony of Jack Roper who testified
for Respondent because of his faulty recollection and
general, evasive answers. His recollection was that he voted
between 10:30 to 11 a.m. on the morning of March 3. As
found, the election did not begin until 2 p.m. He recalled
seeing a group consisting of Phillips, Alewine, Welborn,
and Jackson coming from the office to the polling area.
Phillips and the others were chatting and throwing up their
hands. They were going down the wrong aisle , and Welborn
stopped them and directed them to the aisle which led to
the voting area.
During the preelection conference that was held between
about 10 and 11:30 a.m. representatives of Respondent and
the union and Board agents went to the voting area in a
group to inspect the voting area, and to discuss procedures
to be followed in that area when the voting began. They
went in a group from the office to the voting area. The
group included Board agents, Phillips, Alewine, Brown, and
Welborn, as well as other representatives of Respondent
and the Union. The group went from the office at the front
of Respondent's place of business to the voting area in the
plant area at the rear of the building. This was the group
that Roper saw. It included Alewine as well as Phillips and
Welborn as well as Brown. They were chatting and talking
as they had a right to do. Their conduct between 10:30 to 1 I
a.m. in the morning of March 3 has no relevancy to the
question whether the union observer engaged in conduct
that interfered with the right of employees to exercise a free
choice in the election.
I do not credit the conclusionary testimony of Brown,
Respondent's observer, who was a member of the releasing
team or group that also included Jackson and Phillips, that
Phillips waved to employees in 5 of the 10 departments they
visited, and spoke to these employees, except insofar as it
corroborates the testimony I have credited of plant
employees who testified for Respondent. I premise this
finding on Brown's demeanor testimony, and the testimony
of Jackson, Phillips, General Counsel's witnesses, the
testimony of other employee witnesses for the Respondent,
and the Board' s Internal Instructions and Guidelines.
I do not credit Respondent's observer Brown's testimony
that Jackson did not permit her to look at the list of
departments on the releasing schedule when Jackson,
Phillips, and she released employees to vote from 2 to 4
p.m. on March 3, and, as a result, she did not know where
she was going, or that Jackson sought advice and direction
only from Phillips and ignored her, or that Jackson and
Phillips walked fast purposely so she could not keep up with
them as they traveled to and from departments, and
through departments.
I credit the testimony of Jackson whom I find to be a
highly credible witness 9 that he did not knowingly keep the
list of departments from Brown, that it was always available
to her if she wished to look at it or indicated she wished to
9 Jackson was not with the Board when he gave testimony at the June matters not relevant or material to the issues before me presumably to test
1969 heanng Respondent's Counsel Tate asked Jackson questions about Jackson's memory or recollection of events on March 3, 1966, that are in
MONROE AUTO EQUIPMENT CO.
look at it. There is no evidence she asked Jackson for the
list and that he refused her request. In any event the list had
lost a good deal of its importance by reason of the
agreement reached by Jackson, Brown, and Phillips that the
departmental employees would not be released in accord-
ance with the numerical sequence of their respective
departments, which is the way the departments were typed
on the releasing list, but by starting with the department
closest to the voting area , and then by the next closest, etc.
Some departments although next to each other numerically
were separated by substantial distances even to the width or
length of the plant. To have followed the numerical listing
would have meant the unnecessary loss of a substantial
amount of the available 2 hours from 2 to 4 p.m. for the
releasing of the day shift to vote.
I credit Jackson's testimony that Brown acknowledged
she was not as familiar with the plant area as Phillips was,
and that Jackson relied on Phillips for the identification of
the department closest to the voting area and closest to the
department just released. Jackson testified that Brown did
request him to slow down three or four times, and he did.
His testimony does show, however, that he had the
objective of releasing to vote all the employees on the day
shift, about 350, before 4 p.m., the end of the workday for
that shift, and slowed down to meet Brown's request to the
extent that the objective of releasing all the day-shift
employees to vote would not be defeated. I find that the
objective was accomplished at 3:50 p.m., and would not
have been accomplished had Jackson slowed down any
more than he did.
Jackson's demeanor testimony showed him to be an
unusually personable person with natural courtesy and
charm. He would not intentionally have moved ahead of a
member of the opposite sex if he had not been on a mission,
and had not set out to accomplish it in a fast moving
natural gait. Under more appropriate circumstances, I am
sure that Jackson would have extended more adequately his
natural charm and courtesy to Mrs. Brown, a personable
and charming lady.
I do not credit Brown's testimony that Sobieski instructed
her and the other observers to keep their mouths shut and
not say anything about anything or in any circumstances.
Sobieski testified that he said to the observers that they
should not talk to anyone, but refer any questions to
Jackson for him to answer. Phillips testified that they were
instructed as to what they could say or not say, and what
they could do or not do. Phillips also testified that when
Harold Walker, a foreman , was absent from his depart-
ment, he said to Harris , the group leader, who was in charge
in Walker's absence, that the Board agent wished to talk to
him. Section 11330.4 of the Board's Internal Instructions
and Guidelines for Representation Proceedings permits
observers, with or without a Board agent accompanying
them, to inform the foreman that they were releasing the
employees, and to notify the employees by word or sign
that they could go to the voting area if they wished to do so.
I construe this section to permit the observers, where a
Board agent accompanies them, to, at least, assist the Board
issue. He answered forthrightly that he did not recall or did not know. I
find that these questions and answers are not substantial evidence of
Jackson 's inability to recall March 3, 1966 , events as they occurred
113
agent in this work, including informing employees by word
or sign to assemble in order to hear what the Board agent
has to say in regard to their going to the voting area and
their return, or saying to an acting foreman that the Board
agent wished to talk to him. I do not construe Sobieski's
instruction to have banned observers Brown and Phillips
from exercising the duties normally performed by observ-
ers, which would include their assembling the employees by
word or sign , where the Board agent could tell them they
were free to go to the polls, to go quietly and to return as
quickly as possible, or in some circumstances where the
Board agent is momentarily absent, to convey the above
information to the employees. There was nothing objection-
able in Phillips informing Harris that Jackson wished to
talk to him.
5. The sixth objection
To support its sixth objection that Board agents left the
ballot box completely unattended in a room with an open
door, Respondent relies on the testimony of Newspaper
Publisher and Editor Hayden, and of Respondent's Plant
Manager Gordon and its Industrial Relations : Manager
Roper. In Respondent's effort to show that the ballot box
could have been tampered with while it was allegedly
unattended, Respondent's witnesses Hayden, Gordon, and
Roper testified that Alewine and Phillips, union observers,
were in the lobby which was close to Gordon's office,
during the time the box was allegedly unattended. And in
Respondent's efforts to show that the ballot box had been
tampered with, Respondent's witnesses Brown and Wel-
born testified as to what they considered to be the
flimsiness of the box and their lack of opportunity to see it
when it was brought into the polling area for the second
session of the election that began at 11:30 p.m. on March 3,
1966.
It is undisputed that the time union observers Alewine
and Phillips were in Respondent's plant from the time they
arrived shortly after 11 p.m. until they left for the voting
area was spent in the lobby except for the time, which was
approximately 5 minutes, when they went to the door of
Gordon's office, and Alewine asked Sobieski for permission
to go to the plant employees' restroom in the plant, and
with Tate's permission they used the restroom off the
hallway and close to Gordon's office. There is not a scintilla
of evidence that they were in any place where they did not
have a right to be prior to the time they, Respondent's
observers, Sobieski, Keynard, Tate, and Skelton went to the
polling area.
I further find that the testimony of Sobieski, Keynard,
Welborn, Alewine, and Phillips shows that Sobieski,
Keynard, Welborn, Brown, Alewine, Phillips, Tate, and
Skelton left from the hallway, directly in front of Gordon's
office at 11:15 p.m. on the evening of March 3, 1966, for the
polling or voting area, and arrived there by 11:20 p.m. As
previously found, observer Brown did not testify as to the
time the group, including her, left for the polling area,
except to respond to a question of Tate with a reference in it
to her arrival at the polling area at 11:30 p.m. Brown,
concerning which he testified, and do not establish a substantial
foundation for argument by Respondent's Counsel that Jackson is not a
reliable witness of these events of March 3, 1966.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however , in the affidavit of March 22, 1966 , which she
personally typed , and signed in the presence of Board
Agent Watson , stated that she and Welborn led the group
to the voting area at 11:15 p .m Tate and Skelton did not
testify. Hayden testified that he saw two Board agents pick
up the ballot box at 11 : 25 p.m . and take it to the polling
area . However , on cross-examination he was shown his
affidavit which he gave to a Board agent in March 1966. He
identified the affidavit as his. In the affidavit is the
statement that the two Board agents appeared at the
entrance to Gordon 's office at 11:15 p.m.
Gordon testified that the Board agents and the observers
went to the polling area at 11:25 p.m . However, in his
affidavit of March 1966 , which he gave to Board Agent
Watson , he stated that he did not know when the Board
agents and the observers went to the polling area. When
shown his statement , Gordon testified that his recollection
was faulty because of the lapse of time, that the statement
better disclosed his knowledge of the events , and that he
was influenced by Hayden 's testimony . Both Gordon and
Roper were present in the hearing room when Hayden
testified . Roper testified that the group went to the voting
area at 11 : 20 to 11:25 p.m . I do not credit Roper's
testimony as no foundation was laid for this conclusionary
statement . Roper was Respondent 's office manager as well
as industrial relations manager , and was spending his time
going from one place to another in the plant in performance
of many duties as office manager. No probative evidence
places him in the vicinity of Gordon's office from 11:20 to
11:25 p.m., nor does evidence disclose particular circum-
stances from which an inference could be drawn that he
was there at 11:20 to 11:25 p.m. On evaluation of all the
testimony, including demeanor testimony , I have made the
finding that the Board agents, observers, Tate and Skelton
went to the polling or voting area at 11 : 15 p.m.
I have found , supra, and I hereby affirm the finding, that
there is no substantial evidence that the ballot box, sealed
at 5 p .m. on March 3, 1966 , at the conclusion of the first
voting session , was tampered with from the time it was in
the custody of Sobieski and Keynard starting at 5 p . m. until
it was placed on a chair in the voting area at approximately
11:20 p.m ., or that the box unsealed under proper
conditions when brought to the voting area was tampered
with from that time until the polls were opened at 11:30
p.m., or from 11:30 p.m . until the box was opened by
Sobieski to disgorge all the ballots on the table in the voting
area so they could be counted . Sobieski hit the box with his
huge strong hand to dislodge any ballots stuck inside the
box. This accounted for the opened seam Welborn saw the
next morning . The box had not been destroyed as was the
custom , but deposited in a trash basket where it was
retrieved by Respondent the next morning The box was
offered in evidence by Respondent, and received in
evidence after it was identified by Sobieski as the ballot
box.
I credit Hayden 's testimony that he came into Gordon's
office shortly after II p.m. on the evening of March 3, 1966,
and placed his raincoat on the ballot box which was resting
on a chair , that someone said he had placed his coat on the
ballot box, and he removed the coat and hung it on a rack
located in a corner of the office . I credit his testimony that
while he was in the office someone came to the door and
made an inquiry of someone who was in the office with
him, and who went to the door , and I credit Hayden's
testimony that Tate and Gordon were in the office when he
entered it , and that others were in the office at this time in
addition to Tate and Gordon.
This testimony of Hayden is corroborated by the
testimony of Sobieski and Keynard . Sobieski and Keynard
testified that Gordon and Tate were in Gordon's office
when they entered it with the ballot box, and that they,
Gordon , and Tate were in Gordon 's office when Hayden
entered it and placed his raincoat on the ballot box, and
removed it after someone said to him that he had placed his
coat on the ballot box. Sobieski testified that he went to the
door of Gordon 's office, where union observer Alewine
requested of him permission for him and Phillips , the other
union observer , to go to the restroom in the plant , and Tate
told them to go to the restroom on the hallway close to
Gordon 's office.
I do not credit Hayden 's testimony that at 11:10 to 11:15
p.m. he left Gordon 's office in the company of Gordon and
Tate and went to the executive room which was down the
hallway from Gordon 's office in the direction of the plant
and the polling or voting area , returned after a stay in the
executive room by way of the hallway past Gordon 's office
on to the foyer or lobby to look at the clock which showed
the time of 11:25 p.m ., that when he went past Gordon's
office toward the lobby he looked in Gordon 's office and
saw therein the ballot box on a chair , but also saw there
were no persons in that office.
Nor do I credit Gordon 's testimony that Keynard only
brought the ballot box into his office when he and Tate
were present there shortly after 11 p .m. and that Keynard
left immediately , and that he, Hayden, and someone else
who could have been Tate , as he came into the plant with
him, left Gordon 's office at Gordon 's suggestion when he
saw that they were in the office alone with the ballot box,
that he went alone to the coffee machines in the plant and
met and talked to people in that area, and returned 15
minutes later to his office and found Keynard there
guarding the ballot box , and that the Board agents and
observers went to the polling area at 11 : 25 p.m. upon
instruction of Keynard.
I do not credit Roper 's testimony that in performing
many duties as office manager between the time the Board
agents , observers , Gordon, and Tate came into the plant
about 11 p.m. and the time when the Board agents,
observers, and others went to the polling area about 11:20
to 11:25 p in., in going from the IBM room , which was
down the hall from Gordon 's office in the direction of the
plant, up toward and beyond Gordon 's office to the front of
the plant he looked in Gordon 's office, and saw the ballot
box, but also saw there were no persons in Gordon 's office.
There are too many conflicts between this testimony of
Hayden , Gordon , and Roper and their testimony on cross-
examination , and between their testimony on direct and
cross with the statements in their affidavits of March 1966
regarding the events concerning which they gave testimony.
There is also the conflict between their testimony and the
unequivocal testimony of Sobieski and Keynard that at no
time did they leave the presence of the ballot box from the
MONROE AUTO EQUIPMENT CO. 115
time they brought it in Gordon 's office to the time they
brought it to the voting or polling area in the company of
the observers , and Tate and Skelton . I credit this testimony,
including demeanor testimony , of Sobieski and Keynard
upon its evaluation in context . In addition , neither Tate nor
Skelton , Respondent's attorneys , although material wit-
nesses with personal knowledge of the events under
scrutiny , testified . I recognize that it is not desirable for an
attorney presenting a case for a party to be a witness in
behalf of the party . Here, however, Tate could have
testified regarding the objection under consideration, which
was the sixth , and Skelton could have presented this
particular part of the case.
On cross-examination by counsel for the Union , Hayden
testified that he may have seen the ballot box unattended
after he saw the clock in the lobby registering 11:25 p.m.
and walked back from the lobby past Gordon's office, and
not on the way to the lobby to see what time the clock
registered, as he testified on direct . He had testified on
direct that 1 or 2 minutes after he looked in Gordon's office
from the hallway on the way to the lobby two Board agents
came in , took the box , and went back in the plant . On this
testimony the ballot box was gone when he walked back
from the lobby , and looked in Gordon's office. No
testimony was given on direct or cross as to the condition of
the lighting in Gordon's office or in the hallway , or as to the
conditions for accurately identifying by sight an object
resting on a chair in Gordon's office by a person looking in
Gordon's office as he walked by the office door on the
hallway either to or from the lobby . Hayden identified an
affidavit shown him as an affidavit he gave to Board Agent
Watson in March 1966 , about the matter concerning which
he testified . The affidavit bears the statement that the clock
in the lobby registered 11:15 p.m., not 11 : 25 p.m. So his
testimony does not show that Sobieski and Keynard picked
up the ballot box to go to the polling area as late as 11:25
p.m. as he had testified . I have found that the observers,
Sobieski , Keynard, Tate, and Skelton went to the polling
area at 11:15 p.m. According to Hayden's testimony on
direct examination he did not leave Gordon 's office for the
executive room until 10 to 15 minutes after he first entered
Gordon's office shortly after 11 p.m.
Hayden's direct examination is silent as to whether
Sobieski or Keynard was present or anyone was present
other than himself , Gordon, and Tate, when he left
Gordon's office to go to the executive room . Gordon's
testimony on direct examination is that Sobieski and
Keynard were not present and only he , Hayden, and
someone else , possibly Tate, were present . On cross-
examination Hayden testified that he believed only
Gordon , he, and Tate were present. Gordon in his
statement which he gave Board Agent Watson in March
1966 stated that he did not recall seeing Hayden at all until
after the observers and Board agents had gone to the
polling area . Gordon testified on cross that his statements
in his March 1966 affidavit more accurately disclosed his
knowledge of what happened as the lapse of 3 years from
the election until he testified at the June 1969 hearing had
dulled his recollection of what occurred . He also testified
on cross that he was influenced by Hayden 's testimony. As
previously stated both Gordon and Roper were present in
the hearing room when Hayden testified . I have found that
Tate was with the observers , Board agents , and Skelton
when they went to the voting area at 11:15 p .m. Tate,
therefore, could not have left with Hayden at 11:10 to 11:15
p.m. for the executive room . He could not have been in two
places at the same time.
While Gordon testified he did not recall Sobieski being in
his office shortly after 11 p.m. with Keynard and the ballot
box, in his March 1966 affidavit he stated that Sobieski and
Keynard entered together and were both in the office. He
testified on direct examination that he left his office with
Hayden and another person possibly Tate when he saw that
they were alone in the office . As previously stated , he stated
in his March 1966 affidavit he had no recollection of seeing
Hayden until after the observers and Board agents had
gone to the polling area . He testified they went to the
polling area at 11:25 , but in his March 1966 statement he
testified he did not know when they went to the polling
area. He testified there was a third person in the office with
him and Hayden at the time he said they should leave, but
he did not know for sure who it was . The third person who
had a connection with Respondent with whom he had a
conversation at the time he, this person, and Hayden
allegedly left the office was not Tate as Tate did not go with
him in the direction of the plant and stop off at the
executive room . Tate and Skelton left with the Board agents
and observers for the polling area at 11 : 15 p.m.
By his testimony Roper was engaged in office manager
duties from at least I1 p .m. to the time the observers and
Board agents went to the polling area which he testified was
11:20 or 11 : 25 p.m . On a trip from the rear of the plant
building to the front of the building where the offices were
located, some time during this period, he looked in
Gordon's office and saw the ballot box there , but did not
see any persons in the office . He declined to state what
specific time during the period from 11 to 11:20 or 11:25
p.m. that he saw the ballot box in Gordon 's office
unattended . The observers , the Board agents , Tate , Skelton,
and the ballot box went to the voting and polling area at
11:15 p.m. If Roper went past Gordon 's office on the way
to the front of the building and looked in Gordon 's office
between 11:15 p.m. or 11 : 25 p.m . he would not see anybody
or the ballot box in the office . Even Gordon and Hayden,
by their own testimony , had left Gordon's office and did
not return until 11:25 p.m.
No evidence was offered to or received in the record
showing that Roper at any time was close to the ballot box,
or close to it when it was in Gordon 's office, so he would be
able to identify it, or know where it had been placed by
Keynard in Gordon 's office and where it was resting, if in
the office, when passing Gordon's office on an assignment
and looking in Gordon's door as he passed. Nor was any
evidence offered of the lighting or other conditions in
Gordon 's office or in the hallway which would permit
Roper to identify the ballot box resting on a chair in
Gordon's office and not mistake some other object for it.
He testified he could identify a person in the office, if he
was there, by his image showing through the frosted glass
wall. He did not claim he could see the image of the ballot
box through the wall . As stated supra, I do not credit
Roper's testimony.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. ANALYSIS , FINDINGS , AND CONCLUSIONS OF LAW
AND FACT
On the foregoing evidence, evidentiary findings, and
credibility resolutions , I make the analysis, findings, and
conclusions of fact and law in the following paragraphs.
I find and conclude that employees Teel, Jordan, Howard
Sanders, Gerald Dan Craft, Johnson, Holbrook, and
Bowen were told in the period prior to the March 3, 1966,
election that they would lose their jobs if they did not
support the Union by a militant group of union employee
supporters including Harvey Joe Sanders, Reed Ayers,
Claude Fulgam, Charles Ward, Ray Vickory, Ralph
Vickory, and Andy Adams. I find and conclude that during
the preelection period Fulgam also stated to Jordan and
other employees that they would suffer reprisals by union
supporters including beatings with chains, if they did not
support the Union; 10 that employee Andy Adams threat-
ened employee Mize with a physical whipping for opposing
the Union, and that union employee supporters Jerry
Garland and Britt Sorrells tampered daily with the machine
which Howard Sanders operated because he did not
support the Union, and required Sanders to spend an hour's
time daily to restore the machine to a condition for normal
production.
I find and conclude that employee Jordan received an
anonymous telephone call the Sunday evening prior to the
March 3, 1966, election at Terry's Service Station in
Hartwell, while helping the owner who was ill, and in the
telephone call was cursed by the unidentified caller for
speaking against the Union, was told he was being watched,
and would suffer reprisals if he did not vote for the Union. I
find and conclude that on an early morning during the
preelection period employee Howard Sanders received an
anonymous telephone call, and the unidentified caller
cursed him when he answered in the negative his question
whether he would support the Union. I find and conclude
that employee Madden, who did not support the Union,
received, in the 2-week period prior to the election, as many
as three harrassing anonymous telephone calls daily, the
first call being received about 11 p.m. and the third call
about 3 a.m. I find and conclude that about 7:30 p.m., on
March 3, 1966, the day of the election, while he was
working on the second shift, employee Kay received an
anonymous telephone call in which the unidentified caller
told him he would kill him when he finished work at I a.m.,
for his standing at the plant gate that afternoon and
advising employees coming into the plant to vote and think
for themselves.
I find and conclude that in the period prior to the election
of March 3, 1966, union employee supporter Claude
Fulgam said to employee Teel and other employees in
department 12 that management paid union dues and
received better benefits because they belonged to the
Union, and that Fulgam showed to the other employees a
foreman 's or other supervisor's check stub or voucher
10 1 consider threats of physical injury by employees to other employees
who did not support the Union, representations by employees to other
employees that foremen and other salaried employees were members of the
Union and paid union dues , and the false representation by employees to
other employees that the deduction under "Union dues or other" on check
stubs of foremen and other salaried personnel was for union dues to be
bearing the gross amount of the foreman's or other
supervisor's paycheck, amounts deducted under headings
describing the deductions, and one deduction which was
for Georgia income tax was under the heading "Union dues
or other." Fulgam made the same statement to employee
Jordan about a week or two before the election and left one
of the check stubs or vouchers on his machine.ii In neither
instance did Fulgam disclose that the deduction under
"Union dues or other" was for Georgia income tax. In view
of his oral statement about foremen and other salaried
personnel belonging to the Union and paying union dues he
left the impression that the deduction was for union dues. I
find and conclude that union employee supporter Harvey
Joe Sanders said to employee Craft about 2 weeks before
the election that foremen and supervisors belonged to the
Union, and he could prove it by check stubs, and that they
had more benefits than rank-and-file employees because
they had membership in the Union. I find and conclude
that the day before the election Harvey Joe Sanders said to
employee Holbrook that foremen and salaried people were
paying union dues and drawing better benefits than rank-
and-file employees. I also find and conclude that there was
a general rumor in the plant before the election that
salaried personnel were members of the Union and paid
union dues.
I find the preelection statements of the employee union
supporters that there would be loss of jobs and other
reprisals if the Union was not supported which were made
to other employees who appeared to be against representa-
tion by the Union to be threats and coercive. I find the
promises of union employee supporters of physical beatings
and whipping to employees if they did not support the
Union, and the tampering by union-supporting employees
with an employee's machine because he was not supporting
the Union to be threats and coercive. I find to be threats
and coercive the statements by the employee union
supporters that foremen and other salaried employees were
members of the Union and paid union dues, and their use
of the vouchers or check stubs of paychecks issued to
foremen and salaried personnel showing a deduction from
the gross amount of wages under the heading "Union dues
or other" to misrepresent that deductions were made by
Respondent for union dues. The deduction was for Georgia
income tax. The significance to employees of representa-
tions by the union supporters that foremen and other
salaried employees were union members and paid union
dues and seeing a check stub ostensibly showing a
deduction for union dues was that employees who did not
support the Union would be discriminated against by
foremen and other salaried personnel if they did not
support the Union.
I find to be threats and coercive the anonymous
telephone calls in which the unidentified callers cursed the
employees and told them they would suffer reprisals if they
did not support the Union in the election . The calls which
were made to Jordan and Howard Sanders are considered
objections added to the first four objections set down for further hearing
by the court by their being placed in issue by Respondent's evidence, and
the litigation of them by all the parties
11 There is no evidence showing where or from whom the vouchers or
stubs attached to checks of foremen and salaried personnel were obtained
MONROE AUTO EQUIPMENT CO. 117
in context with the statements made to them by the union
supporters and with the tampering of Sanders' machine by
union supporters Garland and Sorrells. Even though it was
only coincidental that the receivers of the anonymous
telephone calls were also threatened by the militant union
supporters it would not be illogical for these and other
potential voters to believe that both types of threats were
related. The telephone call that Kay received during the
second shift on March 3 before the election session began
for second shift workers could be considered by the
employees as being related to the attempt by Hendrix, a
union supporter, to complain to Sobieski about Kay's
conduct against the Union earlier in the day at the gate of
the plant. However, there is no evidence that Kay was
aware of Hendrix's attempted complaint, or that any
employee voting in the second session was aware of
Hendrix's attempted complaint. I find, however, that the
call to Kay, received about 7:30 p.m., in an area where the
second shift was working and when it was working, was a
threat to Kay and the other employees present. Kay did not
vote until 11:30 p.m. Other second-shift employees also
voted between 11:30 p.m. and 12:15 a.m.
I find and conclude that substantial evidence supports
the first two objections of the six objections remanded by
the court for further hearing, objections three and four to
the extent they involve employee conduct, and the two
additional objections involving employee conduct added by
the parties by their litigation of them (as stated supra, fn.
10).12 There is no substantial evidence that the Union or its
agents engaged in any of the conduct alleged in the
objections.
I have found that there was a general rumor in the plant
before the election that foremen and other salaried
personnel were members of the Union and paid union dues.
Teel spoke to Gerald Davis, foreman of department 12,
about the statement by Fulgam that foremen and other
salaried employees were foremen, and Davis showed him
and other employees his check stubs, and explained that the
deduction under "Union dues or other" was for Georgia
income tax. There is no evidence of record showing the time
when Fulgam made the statement to Teel, and when Teel
spoke to Davis about it. It would appear that Teel spoke to
Davis about the time Fulgam spoke to him. It appears to
me that Respondent must have been aware of the rumor. It
must also have been conscious of the fact that the use of the
check stub or voucher with a deduction heading "Union
dues or other" lent credence to the misrepresentations of
the employee union supporters. It should have known that
it had a duty to explain the deduction, and to neutralize the
fraudulent misrepresentations of the employee union
supporters.13
Assistance of an employer to a union in a preelection
campaign is sufficient for the Board to set aside an
election.14 Such Board action favors the employees who are
entitled to conditions that permit the free exercise of their
right to select a bargaining representative . Here , however,
there is no evidence of employer support of the Union or of
collusion between Respondent and the Union. The holding
of Respondent's objections involving employee conduct
against other employees without merit because of its failure
to explain away the misrepresentation of the employee
union supporters would harm the employees in the unit by
depriving them of the conditions for a free exercise of their
rights. In refusing to hold the objections to be without merit
because of Respondent's failure to act, the employees are
being protected. The objective of the laboratory conditions
is realized, even though incidentally the Respondent does
not lose the benefit of its objections because of its
negligence.
I have not credited the testimony of witnesses who
refused to disclose at the hearing the identity of employees
who threatened them because of fear of reprisals, or of
causing trouble in the plant, or because of lack of memory.
I have given what I consider appropriate probative weight
to the testimony of witnesses who did not know the names
of the employees making the threats. Standing alone this
testimony which I consider corroborative only would have
no probative value. However, there is of record substantial
unrebutted testimony by witnesses who disclosed the
identity of employees making the threats, and this evidence
establishes that threats were being made of the type and
nature of the threats concerning which testimony was given
by witnesses who did not know the identity of the person or
persons making them. This corroborative evidence meets
the test of probative evidence in all other respects. I have
not considered as lacking in probative weight the testimony
of witnesses who disclosed the identity of employees
making threats, but who did not disclose the threats or the
identity of employees making the threats to foremen or
other supervisors. There is a natural reluctance to disclose
conduct by a fellow employee to a superior, and to run the
risk of being known as an informer.15
The threats instilled fear of, economic and physical
reprisals. Standing alone they were hostile and threatening,
they were made over a period of time by a recognized group
of union-supporting employees, and the types of threats
made by each of the union supporters were similar or the
same, and made a pattern of conduct. They informed the
employees threatened that the consequences threatened
would be suffered at the hands of union supporters and by
the Union itself. The threat by Harvey Joe Sanders to
Holbrook that if he did not support the Union he would not
only lose his job but would not be able to obtain
employment elsewhere in Hartwell, and Fulgam' s state-
ment to Jordan and other employees present that
employees who did not support the Union could be beaten
with chains as well as suffer other reprisals, are threats that
even the most courageous, persons do not take lightly. Nor
taken lightly is the threat that is contained in the
representation that foremen and other salaried personnel
are members of the Union and pay union dues, and the
inference that they can be expected to discriminate against
employees who do not support the Union.
The union supporters making the threats attended union
12 See N. L.R.B. v. Golden Age Beverage Co., 71 LRRM 2924 (C.A. 5, 14 N.L.R.B. v. Lamar Electric Membership Co., 362 F.2d 505 (C.A. 5,
1969). 1966).
13 See Pepperell Manufacturing Co. v. N. LR.B., 69 LRRM 2679 (C.A. 5, 15 See N. L.R.B. v. Golden Age Beverage Co., 71 LRRM 2924 (C.A. 5,
1968). 1969).
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings . Sanders said to Holbrook that the type of
economic reprisal he talked to him about had been
discussed in union meetings . The known identity of the
employees making the threats, their known connection with
the Union, and their engaging in the same or similar type of
conduct, with no disavowal of it by the Union, could cause
the average employee eligible to vote to believe that the
Union was behind the conduct. Alewine, a union supporter
and an observer for the Union, and called as a witness by
the Union, testified that there was a general rumor in the
plant before the election that salaried personnel were
members of the Union and paid dues to the Union. While
Echols, the union representative in charge of the Union's
campaign prior to the March 1966 election, disavowed at
the hearing in June 1969 any knowledge by him or the other
union representatives of the threats, the circumstances
outlined above which were associated with the threats, the
threats themselves, and the silence of the Union regarding
them before and on the day of the election, could have led
the rank-and-file employees to believe that the union-
supporting employees who made them had the support, or
at least the endorsement, of the Union. When Sanders told
Holbrook that he would not be able to work in Hartwell, he
also stated that the other two plants in Hartwell would be
organized by the Union. The Union by common knowledge
is recognized not only as a powerful labor organization, but
also as an economic power, and to have the capacity to
accomplish objectives it may undertake.
The evidence of the threats, and the circumstances in
which they were made, and who made them, reveal that
they were made not only to the employees who gave
testimony regarding them but to many other employees as
well. Moreover, the nature of the threats, especially since
they were made in a preelection campaign, and the
presence of grounds for a belief by employees that the
Union was behind them very likely led to their prompt and
wide circulation, and their restraining effect was not limited
to those directly involved.16
The conduct of the employee union supporters and the
anonymous telephone calls, when viewed cumulatively and
their combined effect considered,17 resulted in the stand-
ards of election campaigning and conduct dropping too
low, and the absence of requisite laboratory conditions.
General Shoe Corp., 77 NLRB 124, 127. The conduct
involved was of so serious a nature that it could only result
in widespread confusion and fear of reprisal and render
impossible a rational, uncoerced choice by employees.
Certainly the employee conduct involved was sufficient to
influence 78 votes, the number by which the Union won the
election.
For these reasons, the Board-conducted election of
March 3 and 4, 1966, in the Hartwell, Georgia, plant of
Monroe Auto Equipment Company should be set aside and
a new election ordered, the certification of the Union by the
16 Intercontinental Mfg. Co, 167 NLRB No 105, Diamond Stale Poultry
Co, 107 NLRB 3, 6, and Poinsett Lumber & Manufacturing Co, 116 NLRB
1732
17 See Trade Winds Company v NLRB, 71 LRRM 3033 (C A 5,
1969), and Hometown Foods, Inc v NLRB 379 F 2d 241, 244 (C A. 5,
1967).
18 N L R B v Monroe Auto Equipment Co, 70 LRRM 2322, 2324 (C A
5, 1969), Hometown Foods, Inc, v N L.R B, 379 F 2d 241 (C A. 5, 1967);
Board should be vacated and set aside, the Board's order in
the unfair labor practice proceeding should be vacated and
set aside, and the unfair labor practice complaint should be
dismissed in its entirety.18
The issue on the evidence relating to the fifth objection is
whether Board Agent Jackson in releasing employees to
vote from 2 to 4 p.m. during the first session of the voting
on March 3, 1966, sought advice and direction exclusively
from union observer Phillips and ignored Respondent's
observer Brown as to the locations of the departments in
which the employees worked and the directions to be
followed to reach them, and permitted union observer
Phillips to speak to, and holler and wave his hand at,
employees.
The credited testimony shows, and I find, that Jackson
depended on both observers for advice and direction, but
on agreement consulted Phillips about the department
locations and the directions to them as Brown was not
familiar with the departments or their locations while
Phillips was. Jackson in walking at a fast pace to release the
employees on the first shift to vote between 2 and 4 p.m. did
walk ahead of Brown who lagged behind while Phillips kept
abreast of him. The list of departments which Jackson had
was available at all times to Brown, and the few times
Brown asked Jackson to slow down he did so. I credit
Jackson's testimony that he sought Brown's advice, and it
was helpful, and he was grateful for it. I find no merit to the
objection that Jackson relied on Phillips and ignored
Brown although it may have appeared to have been the case
a few times because of the circumstances of the situation.
I have evaluated Respondent's testimony and the
Union's and General Counsel's testimony regarding
Phillips' conduct and have made credibility findings
(supra). I have credited Jackson's testimony that he and
Sobieski informed Phillips and Brown not to talk to fellow
employees. I have credited testimony that Phillips assisted
Jackson in assembling employees in department 17 to be
informed by Jackson they were being released to vote, and
he did so by signaling and by word of mouth, and at the
time he gave this assistance he said "howdy" to some of the
employees. I have also credited testimony that, when
Jackson, Phillips, and Brown returned to the voting area in
front of department 17 employees on their way to vote,
Phillips said "Howdy" to employees of other departments
standing at the coffee machines and the water fountain as
he passed them. Phillips testified that he said to Harris, the
group leader who was in charge of Foreman Harold
Walker's department in his absence, that Board Agent
Jackson wished to talk to him. I credit this testimony.
Section 11330.4 of the Board's Instructions and Guide-
lines for Representation Proceedings (supra, fn. 4) permits
observers to release employees with or without the presence
of a Board agent They may tell the employees they are free
to vote if they wish to do so, and may do this by word or
Hometown Foods, Inc, v N.LR B, 71 LRRM 2663 (C A. 5, 1969),
Hometown Foods, Inc, v NLRB, 72 LRRM 2465 (C A. 5, 1969);
Intercontinental Mfg Co, 167 NLRB No 105, Diamond State Poultry Co,
107 NLRB 3, 6, Poinsett Lumber & Manufacturing Co, 116 NLRB 1732,
and N L R B v Tampa Crown Distributors, 272 F 2d 470 (C.A 5, 1959). See
also N L R B v Smith Industries, Inc, 69 LRRM 2660 (C A. 5, 1968), and
Smith Industries, The, 178 NLRB No 46
MONROE AUTO EQUIPMENT CO. 119
sign, after telling the foremen what they intend to do. I find
that, where a Board agent accompanies the observers, the
observers by word or sign may ask the employees to
assemble to hear this information from the Board agent. I
also find nothing objectionable in an observer telling an
acting foreman that the Board agent wishes to talk to him.
Section 11326.2 of the Board's Instructions and Guidelines
for Representation Proceedings (supra, fn. 4) provides that
observers may not electioneer during their hours of duty,
whether at or away from the polling place. I do not consider
as electioneering an observer saying "hello" or "howdy" to
employees as he asks them or motions to them to assemble
to hear what the Board agent has to say.
I find that Phillips did not electioneer when he assisted
Board Agent Jackson in assembling employees in depart-
ment 17 by word or sign preliminary to their being
informed by Jackson that they were being released to vote
if they wished to do so. Nor do I find as electioneering
Phillips' "howdy" to these employees as they were
assembling or when he was about to ask them or to signal to
them to assemble. The "howdy" was obviously a way of
"breaking the ice." I find Phillips' "howdy" to the
employees at the coffee machines and water fountain to be
a minor form of electioneering, prompted by greetings of
fellow rank-and-file employees. I find that this greeting had
no substantial impact on the employees with respect to the
way they voted.19 The Board in Milgrim Inc., 170 NLRB
No. 46, said that in determining whether certain conduct is
electioneering that will void an election it will not consider
a chance, isolated, or innocuous comment or inquiry by an
employer or union official to a voter as necessarily the type
of conduct that will void an election, that it will be guided
by the maxim that "the law does not concern itself with
trifles." I find Phillips' "howdy" to the employees at the
coffee machines and water fountain to be trifling.
I find and conclude that substantial evidence does not
support the Respondent's fifth objection that "Board
agents in going about the plant alerting the employees to
vote sought advice and direction exclusively from the
Union representative, and permitted the Union observer to
speak, holler at, wave his hand and otherwise campaign
with the employees in the plant during the voting." I find
and conclude that the objection should be dismissed.20
On the evidence offered in support of and against
Respondent's sixth objection, I have not credited the
testimony of Respondent's witnesses Hayden, Gordon, and
Roper that Board Agents permitted the ballot box to be left
completely unattended in a room with an open door (supra).
If Respondent's evidence supported its sixth objection, the
ballot box would have been left unattended for 5 minutes
from 11:10 to 11:15 p.m. on March 3, 1966, when it was
resting on a chair in the office of Plant Manager Gordon in
Respondent's plant building. I have credited the testimony
of Sobieski and Keynard that they did not leave Gordon's
office from the time they entered shortly after 11 p.m. on
March 3, 1966, until they left with the ballot box for the
voting area about 11: 15 p.m. on March 3, and that at no
la It could be that they had already voted.
20 See N.L.R.B. v. Golden AgeBeverage/Co.,71 LRRM 2924(C.A. 5,1969).
21 See N.L.R.B. v. Golden Age Beverage Co., 71 LRRM 2924 (C.A. 5,
1969); and Polymers, Inc., 170 NLRB No. 33, and 174 NLRB No. 42, enfd.
time was the ballot box out of their sight or out of their
custody while they were in Gordon's office. I have found
that the union observers who were in the lobby close to
Gordon's office were at no time in Gordon's office or in the
hallway close to it except when Alewine asked permission
of Sobieski to use a restroom, and when they joined the
Respondent's observers, Board agents Sobieski and Key-
nard, and Tate and Skelton to go to the polling area at
11:15 p.m. I have found that the ballot box, including the
slit or opening on the top side of the ballot box, was sealed
when it was brought to the polling area shortly after 11: 15
p.m. on March 3, 1966, and remained that way until
Sobieski removed the masking tape over the slit or opening
on the top side of the box just before the polls were opened
at 11:30 p.m. for the second voting session which lasted
until 12:15 a.m. on March 4. One side of the ballot box
opened up when Sobieski hit the box after the polls were
closed, and the box had been turned upside down for the
ballots to drop on the table to be counted, to cause any
ballots stuck in the seams inside the box to fall on the table.
Substantial evidence does not support the objection that
the ballot box was left unattended by Board agents at any
time, including the time it was in an office with an open
door. In any event, there is no evidence that any person
tampered with the ballot box, while on the other hand,
substantial evidence shows it was not tampered with. I find
and conclude that in regard to the custody of the ballot box
at all times in issue desirable election standards were met,
and that no reasonable possibility of irregularity inhered in
the conduct of the Board agents or the union observers. I
find and conclude that Respondent's sixth objection is not
supported by substantial evidence, and should be
dismissed.21
CONCLUSIONS OF LAW
1. Known and identified union-supporting employees
of Respondent in the period before the Board-conducted
election held in Respondent's Hartwell, Georgia, plant on
March 3 and 4, 1966, threatened other known and
identified employees of Respondent with loss of jobs and
physical injury if they did not support the Union in the
election.
2. Known and identified union-supporting employees
threatened other known and identified employees of
Respondent by representing to them that foremen and
other salaried personnel were members of the Union and
paid union dues, and showed to them check stubs or
vouchers of checks for foremen or other salaried personnel
listing a deduction under the heading "Union dues or
other," and falsely represented the deduction to be for
union dues when it was for Georgia income tax. This
conduct conveyed to the other employees that employees
who did not support the Union would be discriminated
against by foremen and other salaried personnel.
3. The same union-supporting employees made the
threats in both paragraphs 1 and 2 to employees of
Respondent, and the threats made by each union-support-
71 LRRM 3107 (C.A. 2, July 24, 1969). The Board in the Polymers case
held that "desirable election standards were met and that no reasonable
possibility of irregularity inhered in the conduct of the election." It rejected
the per se possibility rule advocated by Polymers.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing employee were the same or similar to those made by the
other union-supporting employees, and their threats
considered cumulatively made a pattern of conduct.
4. Anonymous telephone calls were received by em-
ployees in which they were cursed and threatened with
physical injury and other reprisals for not supporting the
Union, or if they did not support the Union in the election.
5. The known identity of the union-supporting employ-
ees making the threats, their engaging in a pattern of
conduct, and their attendance at union meetings , and the
failure of the Union before and on the day of the election to
disavow their conduct, gave the impression to other
employees that their conduct had the support, or at least the
indorsement, of the Union.
6. The evidence of the threats made by the union-
supporting employees and the circumstances in which they
were made, and who made them reveal they were made not
only to the employees who gave testimony regarding them,
but to many other employees as well. Moreover, the nature
of the threats especially since they were made in a
preelection campaign, and the presence of grounds for a
belief by employees that the Union was behind them very
likely led to their prompt and wide circulation so that their
impact was not limited to the employees to whom they were
made.
7. The nature of the threatening anonymous telephone
calls and the circumstances in which they were made reveal
they were made not only to the employees who gave
testimony regarding them but to many other employees as
well. The nature of these calls very likely led to their wide
and prompt circulation so that their impact was not limited
to the employees to whom they were made.
8. The threats of the union-supporting employees and
the anonymous telephone calls were of so serious a nature
that they could only result in widespread confusion and
fear of reprisals which rendered impossible a rational,
uncoerced choice by employees in the election of March 3
and 4, 1966, in Respondent's Hartwell, Georgia, plant.
9. The election of March 3 and 4, 1966, should be
vacated and set aside and a new election should be directed,
and the Board's certification of the Union as bargaining
representative, and its unfair labor practice order should be
vacated and set aside, and the complaint in the unfair labor
practice proceeding should be dismissed in its entirety.
10. There is no substantial evidence to support the
allegations in Objection 1 that the Union or its agents
engaged in conduct alien to Section 7 of the Act by making
threats to company employees that they would lose their
jobs unless they voted for the Union, and this part of
Objection I should be dismissed.
11. There is no substantial evidence to support the
allegation in Objection 3 that the Union instigated,
condoned, ratified, and acquiesced in the action of some of
its people in false statements that salaried employees of
Respondent at Hartwell, Georgia, paid union dues, and
Objection 3 insofar as it applies to the Union and its agents
should be dismissed.
12. There is no substantial evidence to support the
allegation in Objection 4 that the Union instigated,
condoned, ratified, and acquiesced in the action of its
people who demonstrated payroll deduction slips of
salaried employees of the Company, reporting that certain
entries on the slips were in payment of union dues when in
reality the deductions were for Georgia income tax, and
Objection 4 insofar as it applies to the Union and its agents
should be dismissed.
13. There is no substantial evidence to support the
allegations in Objection 5 that Board agents in going about
the plant alerting the employees to vote sought advice and
direction exclusively from the union representative and
permitted the union observer to speak, holler at, wave his
hand, and otherwise campaign with the employees in the
plant during the voting, and Objection 5 should be
dismissed.
14. There is no substantial evidence to support the
allegation in Objection 6 that Board agents permitted the
ballot box to be completely unattended in a room with an
open door, and Objection 6 should be dismissed.
RECOMMENDED ORDER
It is recommended that the Board issue an order setting
aside the Board-conducted election of March 3 and 4, 1966,
in the Hartwell, Georgia, plant of Monroe Auto Equipment
Company, ordering a new election, vacating and setting
aside the Board's certification of the Union as bargaining
representative, vacating and setting aside the Board 's order
in the unfair labor practice proceeding, and dismissing the
complaint in the unfair labor practice proceeding in its
entirety.
IT IS FURTHER RECOMMENDED that the Board in its order
dismiss Objections 1 to 4 insofar as they allege any illegal or
objectionable conduct by the Union and its agents, and
dismiss Objections 5 and 6.