Owens-Corning Fiberglas Corp.

National Labor Relations Board - Board Decisions

Oct 20, 1969

179 N.L.R.B. 219 (N.L.R.B. 1969)

OWENS-CORNING FIBERGLAS CORP
Owens-Corning Fiberglas Corporation and Glass
Bottle Blowers Association of the United States
and Canada, AFL-CIO, Petitioner. Case
I I-RC-2564
October 20, 1969
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Pursuant to a Decision, Order, and Direction of
New Runoff Election issued on September 19, 1968,
as amended on September 23 and October 11, 1968,
a second runoff election was conducted on
November 12 and 13, 1968, under the direction and
supervision of the Regional Director for Region II,
to determine whether or not certain employees of
the Employer desired to be represented for purposes
of collective bargaining by Teamsters Local 509,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of' America, the Intervenor, and hereinafter referred
to as the Union.'
Upon the conclusion of said election, a tally of
ballots was furnished the parties in accordance with
the Board's Rules and Regulations The tally
showed that there were approximately 1846 eligible
voters and that 1784 ballots were cast, of which 938
were for the Union, 773 were against the Union, 67
were challenged, and 6 were void.
On November 20, 1968, the Employer filed timely
objections to conduct affecting the results of the
second runoff' election. The Regional Director
caused an investigation of the issues raised by the
objections to be made and, thereafter, on January
24, 1969, issued and served on the parties his Report
on Objections. In his Report, the Regional Director
recommended to the Board that the Employer's
objections be overruled, and that a certification of
representative be issued to the Union.
Thereafter, on February 17, 1969, the Employer
filed timely exceptions to the Regional Director's
Report, requesting that the second runoff election be
set aside, and another runoff election be held; or in
the alternative, that a hearing be held to permit the
Employer to be heard with respect to its exceptions.
On March 14, 1969, the Board issued an Order
Directing Hearing, directing that evidence be taken
at said hearing with respect to issues raised by the
Employer's exceptions.
Pursuant thereto, a hearing was held on April 16
and 17, 1969, before a duly designated Hearing
Officer. Upon a consideration of the evidence
presented, the Hearing Officer issued and served on
'Petitioner , one of three choices on the ballot in the first election
conducted on August 15 and i6 , 1967, received the lowest number of votes
cast in said election and was therefore eliminated from further proceedings
herein
219
the parties his Report on June 10, 1969,
recommending to the Board that the Employer's
objections be overruled.
Thereafter, on July 7, 1969, the Employer filed
timely exceptions to the Hearing Officer's Report
and a brief in support thereof The Union filed a
brief in support of the Hearing Officer's report.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error They are hereby
affirmed.
Upon the entire record in this case, the Board
finds.
I The Employer is engaged in commerce within
the meaning of the Act.
2 The Union is a labor organization claiming to
represent certain employees of the Employer
3 A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Sections
9(c)(l) and 2(6) and (7) of the Act.
4. The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees at
the Employer's Aiken, South Carolina, plant, but
excluding all office clerical employees, laboratory
technicians, professional employees, guards and
supervisors as defined in the Act.
5 The Employer excepts to the Hearing Officer's
Report, arguing that the distribution of Union
handbills on November 8 and 10, 1968,2 and the
threats of violence and reprisals interfered with the
holding of a free election and that, therefore, the
election should be set aside.' The specific objections,
and the facts with respect thereto, are as follows
The November 8 handbill
The pertinent part of the Union's November 8
handbill on which the Employer relies is.
If you lose this election on November 12 and 13,
you go backward You will be re-evaluated out of
your wage gains or through some other
subterfuge, transferred around, downgraded, or
outright fired. If you win this election, you will
keep what you have already gained and go
forward with more to be negotiated in a Teamster
contract, thereby guaranteeing you gains.
[Emphasis in original]
'Unless otherwise noted, all dates hereinafter refer to 1968
'The Employer does not press two of the five objections which it
originally filed
179 NLRB No. 39
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer's assertion to the contrary, the
quoted language is not a promise of benefit or
threat which warrants setting aside the election.
Rather, it is partisan "puffing" of the type
frequently made in the kind of hard fought election
campaign present here. Such "puffing" is easily
recognized by the employees to be dependent upon
contingencies beyond the Union's control and does
not carry with it the same degree of finality as if
uttered by an employer who has it within his power
to implement promises or beneiits.° Accordingly, we
find that the distribution of the November 8
handbill did not interfere with the conduct of the
election
The November 10 handbill
The Employer also excepts to the Hearing
Officer's refusal to find merit in its second
objection, which alleges that a November 10
handbill contained material misrepresentations and
was timed by the Union to prevent a truthful reply
by the Employer prior to the November 12 and 13
election. The record discloses the following
background facts regarding the November 10
handbill and the statements contained therein
During the course of the prior two elections, the
Employer and the Union repeatedly put in issue the
rates of pay paid to the employees represented by
the Teamsters at one of the Employer's competitors
The issue centered on whether the rates of pay at
the Johns-Manville fiberglas plants in Waterville,
Ohio, were higher or lower than those paid by the
Employer at its Aiken plant. This issue was raised
anew in the election campaign herein when, on or
about October 30, an antiunion employee
committee, the In-Plant Committee opposed to
Teamsters, distributed a leaflet to the employees
which advised , inter alia,
They [the Union] also failed to tell you that the
income per person in our Plant is one of the
highest in the Southeast. It is even higher than the
Fiberglas Plant in Waterville, Ohio, which the
Teamsters represent It is a known fact that the
cost of living is much higher in Ohio than it is
here in Aiken, yet we make more money
In response to the assertions made in the leaflet, the
Union on November 5, 7 days prior to the
commencement of the 2-day election, distributed a
handbill which stated that the Teamsters
Johns-Manville Local 20 had negotiated a new
contract for the Waterville employees and that
the package increase for production people, with
incentive, will average out to approximately $1.00
per hour. Teamsters Local 20 also negotiated with
this same Company an increase in disability
benefits from $50 00 per week to $60 00 per week
On November 10, a prounion employee committee,
the "In-Plant Organizing Committee Teamsters
Local Union No 509," distributed a reprint from
the October issue of a Teamster magazine The
reprint, entitled "Local 20 Writes Some Labor
History at Johns-Manville," described the terms and
circumstances surrounding the signing of the new
Johns-Manville contract That part of the reprint to
which the Employer objects reads as follows
Estimates of average earnings, including incentive
pay on the base rate, will increase by at least
$1 00 an hour during the life of the new contract.
In addition, the [bargaining] committee was able
to raise the weekly disability allowance by $10 00
a week. . . . Since becoming Teamsters, just a
little over two years ago, Johns-Manville
employees have achieved increases amounting to
almost $1.30 per hour. They have achieved a fully
paid hospitalization program and fully paid
pension program They have achieved improved
vacations, shift differentials and holiday pay.
The Employer asserts that the November 10
handbill mistakenly made it appear that Local 20
was responsible for increased disability and pension
benefits, when in fact these benefits were not
negotiated with Local 20 but rather, were instituted
unilaterally by Johns-Manville. This assertion
ignores the undisputed fact, however, that both of
these items were discussed during the
Johns-Manville negotiations and that the benefits
followed these discussions Thus, Paul Steinberg, a
Local 20 official, testified that Local 20 dropped its
demand for a Teamster pension plan in response to
Johns-Manville's promise to institute the type of
noncontributory pension it later implemented. It
also appears that the Teamsters reduced their wage
demands on assurances by Johns-Manville that the
hospitalization and disability programs would be
improved during the life of the contract. Moreover,
we note that the handbill did not claim that Local
20 had signed a contract containing these two items.
Rather, it merely asserted that "the [bargaining]
committee was able to raise the weekly disability
allowance by $10.00 a week" and that the
employees "have achieved" a fully paid pension
program. As the employees had in fact "achieved"
the increased pension benefit and as the Employer
has not rebutted the inference that a casual
relationship may have existed between Local 20's
bargaining goals and Johns-Manville's subsequent
implementation of these bargaining objectives, we
find this exception to be without merit.
The Employer's claim that Local 20 did not in
fact achieve the $1 30 hour increase claimed in the
handbill is also without foundation. The handbill
states that the Johns-Manville employees achieved
the raise "Since becoming Teamsters, just a little
over two years ago...." Although the word "since"
is somewhat ambiguous,' it is entirely reasonable for
a reader of the handbill to conclude that the raises
achieved covered the period from 1966, the year
'Cf Ortromz, Inc, 173 NLRB No 57, fn 35 ' In refusing to find that this ambiguity constituted a material
OWENS-CORNING FIBERGLAS CORP.
Local 20 signed its first collective-bargaining
agreement with Johns-Manville, to 1972, the
termination year of the new contract Accordingly,
our inquiry as to the value of the increases question
covers the 1966-1972 period. The record indicates,
and the Employer apparently does not dispute, that
excluding bonuses paid to approximately 90 percent
of the Johns-Manville employees, the average hourly
wage increase during this period amounted to nearly
$1.03 per hour. As the handbill did not claim that
the $1 30 per hour increase was exclusive of such
bonuses and other contract benefits, there is no
reason why such benefits should be excluded in
computing the average hourly increases during this
period. With regard to those benefits, the record
establishes that the contractual incentive program
above amounted to at least 25 or 30 percent of an
employee's hourly wage. Without considering the
value of other contractual benefits - shift
differential, extra holiday pay, etc. - it is clear that
an incentive of 25 to 30 percent added to the $1.03
average increase is reasonably close to the
$1 30-an-hour figure contained in the handbill. We
find, therefore, that the $1.30-per-hour figure was
not a material misrepresentation.
We also find to be without merit the Employer's
additional claim that the election should be set aside
because the handbill erroneously stated that Local
20 achieved an increase totaling "at least
$1.00-an-hour during the life of the new contract."
Although conceding that the hourly wage increase
during this period amounts to 52 or 53 cents an
hour, the Employer does not attempt to put an
exact price on the other benefits provided for in the
new contract negotiated by Local 20. Instead, it
only argues that "No incentive figure mentioned in
the record makes the 52 cent or 53 cent approach
the $1.00 increase asserted." While admitting that
the average wage increase amounted to about 52
cents or 53 cents an hour, the Union contends that
the Johns-Manville employees did in fact receive
total increases approaching the $1 an hour figure
asserted in the handbill. It argues that the 52-cent or
53-cent base figure was augmented by inequity
adjustments for certain employee classifications,
ranging from one to 30 cents an hour, and by the
incentive pay system which in practice amounted to
higher incentives than those provided for in the
contract. In this connection it asserts that "A
comparative analysis done by the Company
[Johns-Manville] and the Union during our recent
negotiations indicates that production workers are
averaging between 130%-132% bonus as compared
to a range of 124%-126% under [the former
representative]. Ninety-three percent of the
misrepresentation , we are adhering to our well established policy that "the
mere fact that a message is inartistically or vaguely worded and subject to
different interpretations will not suffice to establish such misrepresentation
as would lead us to set the election aside " Hollywood Ceramics Company,
Inc, 140 NLRB 221, 224
221
production force is covered by the incentive
program. The bonus is slightly higher among
warehouse and service employees, where the average
bonus has been running at 135%."
Even if we are to assume, because of the absence
of greater specificity that the total value came to
less than $1, we nevertheless think it clear, and we
find that the handbill containing that representation
was not issued at a time which prevented the
Employer from making an effective reply. As noted
above, the Union on November 5 distributed a
handbill which stated, inter alia, "the
[Johns-Manville] package increase for production
people, with incentive, will average out to
approximately $1.00 per hour." This language,
almost identical to the disputed language in the
November 10 handbill, was in response to the
handbill distributed on or about October 30, by the
In-Plant Committee opposed to Teamsters, which
stated, inter alia , that the Employer's wages were
"even higher than the Fiberglas Plant in Waterville,
Ohio, which the Teamsters represent." Although
conceding that it received copies of the Union's
November 5 handbill on the day it was distributed,
7 full days prior to the election, the Employer
claims that it did not receive information regarding
the Johns-Manville rates until 7 or 8 days after the
election George Brelsford, the Employer's
Personnel Director at the Aiken plant, stated that he
called the Employer's home office in Toledo, Ohio,
on November 5 and requested such information to
be sent to the Aiken plant as soon as possible.
Brelsford's only explanation as to why the requested
information arrived after the election was his
assertion that the request had to be processed
through the legal departments of both the Employer
and Johns-Manville in order to avoid any antitrust
violations arising from dealing directly with a
competitor. When asked whether he again spoke to
the Toledo office regarding the request between
November 5 and November 10, Brelsford replied "I
don't believe so." He later changed his testimony,
asserting that the problem "could have been
mentioned" in subsequent discussions, but that he
"couldn't really pin it down" as to when it was
discussed, other than to say that it could not have
been either November 6 or 7. Brelsford added that
he did not discuss the contents of the November 10
handbill, which he received on that day, with the
Toledo office until after November 12 because he
didn't have the time and "even if it had been
completely false, one hundred percent false, we were
tired of telling our people about it at that time...."
As the Employer has adduced no specific evidence
which would explain the delay in obtaining the
requested information with the 7 days immediately
preceding the election, we are not persuaded that the
Employer was in fact precluded from answering the
alleged misrepresentation. That the Employer's
evident lack of concern with this matter - as shown
by Brelsford's own testimony that he did not press
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for this information and his admission that the
Employer was "tired" of discussing the
Johns-Manville rates - resulted in obtaining the
material after the election, is not, we believe,
sufficient ground for setting aside the election.
Accordingly, we conclude that the distribution of
the November 10 handbill did not interfere with the
election, and that the Employer was not precluded
from answering.
The alleged atmosphere of tension and coercion
The Employer's third exception alleges that the
Hearing Officer erroneously failed to find that
agents and sympathizers of the Union threatened
employees with physical and economic harm,' and
that such threats interfered with employee free
choice and, therefore, destroyed the laboratory
conditions of the election. The specific events which
the Employer cites in support of its exception are as
follows
Doris Jackson, an employee and active member of
the In-Plant Committee opposed to Teamsters, was
accosted at work by two unidentified men, who
threatened to take off her "Vote No" badge. In
response, Jackson told the men "Well, here I am, if
you're man enough to take it, try " With that
admonition, the men walked away and the incident
ended. While passing out antiunion literature,
Jackson was told by Brazell, a Union representative,
that she had "better have a good lawyer when this is
over because you will need it." As Jackson admitted
distributing leaflets calling the Teamsters racketeers
and Communists, it is reasonable to infer that
Brazell was warning Jackson of possible legal
proceedings because of the role she played in
distributing the vituperative antiunion literature.
Emma Booth, whose campaign activities during
the election were limited to wearing a "Vote No"
button, was threatened with physical violence on two
separate occasions by Carol Ann Floyd. The record
indicates, however, that the threats were not related
to Booth's antiunion sentiments, but rather, were
made because Floyd believed that Booth was talking
about her to other employees. That the incidents
reflected a clash of personalities, and were not
related to how Booth would vote, is evidenced by
Booth's own testimony that she subsequently
accepted Floyd's apology after the first incident and
"tried my best to be friendly with that girl, but she
just I don't know. Maybe I wasn't her type, to be
a friend." Booth also stated that she had received a
phone call during the first day of the election which
informed her that she would be met at the front gate
after work. Booth told her foreman of the call and
left work early by a back entrance. She was unable
to identify the caller.
'The Hearing Officer discredited the testimony of employees Gomillian,
Johnson , and Young As the Employer has not challenged the Hearing
Officer 's credibility rulings, we shall not consider the testimony of these
employees
Linda Cosnahan, a member of the In-Plant
Committee opposed to Teamsters, was told by her
father that she would have acid thrown in her face if
she continued to pass out antiunion leaflets
Cosnahan added that another employee refused to
hand out antiunion leaflets because she feared that
acid would be thrown at her. On cross-examination,
Cosnahan stated that her father had warned her that
"we would either be hurt, or acid would be thrown
in our faces " Cosnahan did not tell anyone of her
father's warning during the election campaign and
continued to actively campaign against the Union
There is no evidence either that any acid was in fact
thrown during the course of the campaign or any
specific individual had threatened to do so. Further,
there is no evidence that rumors concerning acid
circulated in the plant prior to the election.
Maggie Sheppard, a member of the In-Plant
Committee opposed to Teamsters, received
anonymous phone calls prior to the election, one of
which threatened, "You know it would be pitiful if
[your daughter] stepped on her starter and it just
went voom."
Employees Martha Chambers and Ina Mae
Powell received anonymous phone calls to the effect
that they should vote for the Union if they were
interested in the welfare of their families.
Connie McColl was told by employee Wayne that
she could get in a lot of trouble and might even lose
her job by wearing her "Vote No" badge McColl
thereupon "cut [Wayne] off short" and informed
him that she would vote for whom she pleased and
walked back to her job McColl admitted that she
never saw Wayne wear a union badge and the
record does not indicate whether he favored or
campaigned for either side in the election campaign.
McDonald Griffith, while wearing a "Vote No"
badge, encountered employee Derrick who said in
reference to his badge, "that's a bunch of [bovine
excretion]." Griffith then walked away and heard
Derrick make a derogatory remark regarding
someone's lineage. Griffith testified that he didn't
know if the last remark was addressed to him.
Aileen Stapleton, who wore a "Vote No" badge,
stated that five or six times a day for a period of 2
weeks before the election her phone rang and upon
answering it there was no response.'
Leroy Simpkins, a member of the In-Plant
Committee opposed to Teamsters, encountered
employees Robert Stalworth and Jesse Baldwin
while visiting a cafe.8 During the course of a
conversation among the employees regarding the
Union, Baldwin snatched Simpkins' "Vote No"
badge off his shirt. Baldwin and Stalworth then
went out to the street, "stomped" the badge into the
street, and told Simpkins that the incident would
'Aileen Stapleton ' s son testified that he received a phone call a week
after the election which threatened his mother's life As the call occurred
after the election and could not therefore have affected employee free
choice , the Hearing Officer properly refused to admit the testimony into
evidence
'Baldwin apparently served as an alternative observer during the election
OWENS-CORNING FIBERGLAS CORP.
recur if Simpkin ever again wore a "Vote No"
badge. The incident was witnessed by several other
employees and Simpkins related what had transpired
to some of the members of the In-Plant Committee
opposed to Teamsters. It is significant to note that
Stalworth and Baldwin had been drinking "quite a
bit" and that there were no fisticuffs during the
incident.
In considering whether the above-mentioned
conduct, occurring in a unit of approximately 1846
employees, warrants setting aside the election, it is
necessary to determine whether the conduct was
such as to substantially interfere with reasonable
standards for a fair election. Although attempting to
establish ideal conditions insofar as possible, we
acknowledge that actual facts must be considered in
light of realistic standards of human conduct, and
that "elections must be appraised realistically and
practically, and should not be judged against
theoretically ideal, but nevertheless artificial,
standards."9 In considering standards of human
conduct,
we are not unmindful of the fact that the
"laboratory" for election purposes is usually an
industrial plant where vigorous campaigning and
discussion normally take place, and where isolated
deviations from the above-mentioned standard
will sometimes arise, notwithstanding the best
directed effort to prevent their occurrence.'"
Accordingly, the Board has 'not overturned the
results of elections where it was found that
irregularities were not of such a nature as would
have tended to make a free election improbable. The
Board recognizes that some heated statements may
be made by individual employees or nonemployees,
such as set forth above, and that such conduct
should be considered in determining whether
employees were precluded from exercising a free
choice, notwithstanding the fact that the conduct
cannot probatively be attributed to the Employer or
the Union." It is necessary, however, to give some
weight to whether the conduct complained of was
committed by the parties to the proceeding, or by
rank and file employees. This is so, because "the
conduct of third persons tends to have less effect
upon the voters than similar conduct attributable to
the employer who has, or the union which seeks,
control over the employees' working conditions.-`
Bearing these considerations in mind, we shall now
turn to a review of the conduct in question.
The evidence clearly establishes that, the several
threats of physical harm notwithstanding, no
physical violence of any kind in fact occurred. The
evidence also discloses that no Union official made
any unlawful threat or engaged in any improper
conduct during the campaign period. For, as noted
'The Liberal Market . Inc, 108 NLRB 1481, 1482
"Morgantown Full Fashioned Hosiery, Co . 107 NLRB 1534, 1538
"At Long, Inc, 173 NLRB No 76
"Orleans Manufacturing Company, 120 NLRB 630, 633.
223
above, Brazell's admonition to employee Jackson
that she obtain the services of a good lawyer
appears to have been in response to Jackson's
distribution of literature which attacked the
Teamsters as racketeers or Communists, and was
not meant to influence Jackson's vote in the
forthcoming election. The Employer's claim that
certain employees, because of their membership on
the In-Plant Committee for the Teamsters or
because of their activities as election observers,
acted as agents of the Union in threatening fellow
employees is also without merit. The mere fact that
employees prominent in the Union's organizing
campaign may have engaged in unlawful conduct,
without more, is not sufficient to establish agency."
Here, there is no evidence that the Union either
authorized or condoned any of the questioned
conduct
The specific question posed, therefore, is whether
the conduct complained of by rank and file
employees, in the absence of actual physical
violence, created a general atmosphere of fear and
coercion so as to render improbable employee free
choice. We think not. As noted above, this was the
third hard fought election campaign conducted over
approximately a l 1/2-year period, during which
time the approximately 1846 employees witnessed
vigorous displays of emotional involvement among
individuals of differing views, many of whom were
repeating for the second and third time the roles of
active partisans. That the employees themselves
became accustomed to such partisanship and knew
how to react to it is evidenced by the testimony of
some of the witnesses at the hearing. Thus, Jackson
told the men who had threatened to take off her
"Vote No" badge, "Well, here I am, if you're man
enough to take it, try." McColl reacted in a similar
manner when threatened by Wayne, by "cut[ting]
him off short" and informing him that she would
vote for whom she pleased. Moreover, it was only
natural during such a campaign that remarks of the
kind made to Griffith should occur and that, as
evidenced by the incidents involving Floyd and
Booth, personalities should clash.
We also note that the Employer had unlawfully
interfered with the first runoff election and engaged
in discriminatory acts, including discharges and
grants of various employee benefits. See
Owens-Corning Fiberglas Corporation, 172 NLRB
No. 20, enfd. 407 F.2d 1357 (C.A. 4).
In this context, and guided by the
above-mentioned general principles, we are of the
opinion that the present conduct was isolated and
not sufficiently substantial in nature to create a
general environment of fear and reprisal such as to
render a free choice of representative impossible.
Accordingly, as the tally of ballots shows that the
Union has received a majority of the valid ballots
cast, we shall certify it as the exclusive bargaining
"Electric Wheel Company . 120 NLRB 1644
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative for the employees in the appropriate affiliated with International Brotherhood of
unit. Teamsters, Chauffeurs, Warehousemen and Helpers
of America, and that the said labor organization is
CERTIFICATION OF REPRESENTATIVE the exclusive representative of the employees in the
unit found appropriate, within the meaning of
It is hereby certified that a majority of the valid Section 9(a) of the National Labor Relations Act,
votes has been cast for Teamsters Local 509, as amended.