Servomation of Columbus, Inc.

National Labor Relations Board - Board Decisions

Jul 25, 1975

219 N.L.R.B. 504 (N.L.R.B. 1975)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Servomation of Columbus , Inc. and Retail, Wholesale
and Department Store Union , Local 379, AFL-
CIO, Petitioner . Case 9-RC-10374
July 25, 1975
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, JENKINS , AND KENNEDY
Upon a petition filed on November 29, 1973, and
pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
on December 12, 1973, a secret ballot election was
conducted on December 21, 1973, among the em-
ployees in the appropriate unit set forth in the stipu-
lation. The tally of ballots furnished the parties
showed that of approximately 82 eligible voters, 74
cast valid ballots of which 37 were for and 30 were
against the Petitioner. Seven ballots, sufficient to af-
fect the results of the election, were challenged by the
Employer. The Employer filed timely objections to
conduct affecting the results of the election. On Feb-
ruary 15, 1974, the Regional Director issued and
served on the parties his report recommending that
the issues raised by the ballot challenges and by
Employer's Objection 5 be made the subject of a
hearing and that the Employer's five other objections
be overruled. Thereafter, the Employer filed timely
exceptions and a supporting brief to the Regional
Director's report contending that four of these objec-
tions should also be included in the hearing in the
event the Board did not sustain its Objections I and
3 and set the election aside.
On May 2, 1974, the Board issued its Decision and
Order directing that a hearing be conducted on the
issues raised (1) by the challenged ballots, (2) by Ob-
jection 5 which alleged that the conduct of the Union
and other unidentified persons created an intimidat-
ing and coercive atmosphere, and (3) by the portion
of Objection 3 which related to alleged economic in-
ducements by the Union to eligible voters through
alleged loans and gifts in the form of strike benefits
and hardship relief. With respect to the other objec-
tions, the Board readopted the Regional Director's
recommendation that they be overruled.
The Hearing Officer issued his report on October
25, 1974, in which he recommended overruling the
objections before him on the basis of his findings
that: (1) the strike benefits and hardship payments
did not interfere with the employees' free choice in
the election; and (2) the alleged strike misconduct
did not generate an atmosphere of fear, violence, and
confusion which made a free election impossible.
With respect to the challenged ballots, the Hearing
Officer found that the individuals whose ballots were
challenged were employees on the eligibility date and
on the date of the election and therefore were eligible
to vote. Accordingly, he recommended that their bal-
lots be opened and counted. Thereafter the Employer
filed exceptions to the Hearing Officer's report and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
For the reasons set forth herein, the Board adopts
the Hearing Officer's findings, conclusions, and rec-
ommendations with respect to the objections and the
challenged ballots.
Economic Inducements to Eligible Voters
The Employer's Objection 3 involves the Union's
payment of strike benefits and hardship relief to
striking employees. The Employer contends that
such payments were improper economic induce-
ments to the eligible voters. The facts show that dur-
ing the course of a strike commenced on November
12, 1973, both before and after the election, the
Union paid striking employees who served on the
picket line strike benefits of up to $25 per week.'
Payments ranging from $60 to $150 were made both
before and after the election to individual strikers
who requested funds from the Union to relieve some
financial hardship resulting from their being on
strike.2 The Hearing Officer found that the payment
of strike benefits did not interfere with or impair the
ability of the employees to make a free choice in the
election and recommended that the Employer's ob-
jection based on these payments be overruled.
In support of its exception to this finding and rec-
ommendation the Employer relies on a number of
cases involving union gratuities such as life insurance
premiums, gift certificates, payments for attendance
at union meetings, and the waiver of initiation fees.
Strike benefits, both picket duty compensation and
hardship relief, are a conventional aspect of union
operations. Yet neither the Employer nor our dis-
senting colleague cites any case in which the pay-
1 The Employer excepts to the Hearing Officer's finding with respect to
stnke benefits claiming that the record of payments introduced in evidence
shows that a number of employees received considerably more than $25 per
week. The exhibit relied on does not establish that any striker was paid more
than $25 per week but indicates that sometimes an employee , presumably as
a matter of convenience , collected the strike benefit of another employee as
well as his own The Employer did not elicit any testimony from the union
witnesses in explanation of these ambiguous record entries.
2 The record shows payments made to nine strikers from November 29 to
January 16. Seven were made before the election and two after. Four of the
seven payments were made the day before the election . One of the earlier
payments was returned when the striker obtained work elsewhere.
SERVOMATION OF COLUMBUS
ment of such benefits has been held to be an improp-
er election inducement.
The Board has held strike assistance to be pay-
ment for services rendered. Communications Workers
of America, AFL-CIO, Local 1127 (New York Tele-
phone Company), 208 NLRB 258 (1974). And union
payment for services or lost time has been held not to
interfere with the employees' free choice in an elec-
tion. Quick Shop Markets, Inc., 200 NLRB 830
(1972); Commercial Letter, Inc., 200 NLRB 534
(1972). In Quick Shop Markets, Inc., union payments
in excess of their normal rate of pay made to six
eligible voters for their services as election observers
were held not improper. See also GTE Lenkurt, 209
NLRB 473 (1974); Basic Wire Products, Inc., 210
NLRB 351 (1974). In Commercial Letter, Inc., supra,
payments by the union to eligible voters for time lost
while under subpena to attend a representation hear-
ing were held not to impair a free election . Participa-
tion by employees in a strike to gain recognition for
the Union is obviously a service to the union for
which payment may appropriately be made unless
excessive . The decisions of the Board make clear that
payments for lost time certainly will not be consid-
ered excessive if they do not exceed the normal rates
of pay. There is no suggestion in the record that the
payments made by the Union for picket duty com-
pensation and hardship relief exceeded or even ap-
proached the striking employees ' regular pay. Our
dissenting colleague , however, would find that the
hardship relief payments to individual strikers
"which were made in addition to the sum paid them
weekly for their picketing duties , were excessive com-
pensation" which tended to influence their vote in
the election . Picket duty compensation was $25 per
week. The dissent' s reliance upon the Sixth Circuit's
recent decision in Plastic Masters, Inc. v. N.L.R.B.,
512 F.2d 449 (1975), and related cases in support of
this conclusion , is clearly misplaced . In those cases,
the payments were found objectionable because they
were substantially in excess of the employees' regular
compensation . They obviously have no relevance to
payments in excess of picket duty compensation
which would be considerably less than, normal pay
while at work. There is no evidence linking the pay-
ments of strike benefits to a vote in favor of the
Union. Moreover, by participating in the strike the
employees had already demonstrated their commit-
ment to the Union. We believe the Hearing Officer
was clearly correct in his finding that the payments
were not intended to and did not, in fact , influence
the election or impair a free choice on the part of
employees.
505
Impairment of Free Election by Atmosphere of
Fear and Violence
The remaining objection involved in the hearing
(Objection 5) was the Employer 's claim that strike
misconduct by union supporters before the election
created an atmosphere of fear and violence which
prevented employees from making a free choice in
the election. After reviewing the Employer's evidence
of alleged threats and violence , the Hearing Officer
concluded that the alleged misconduct did not create
"such an atmosphere of fear , violence and confusion
as to make a free election impossible" and recom-
mended that the Employer 's objection to the election
on this ground be overruled. The Hearing Officer
stated that "In reaching this conclusion I have treat-
ed the testimony of Employer 's witnesses as credited
in regard to their accounts of the alleged acts."
The dissent 's suggestion that the Hearing Oflicer
in fact credited the testimony of Employer 's witness-
es, "even though he found that it had been contra-
dicted by the Union 's witnesses ," seems clearly in
error . The Hearing Officer stated, "I have treated the
testimony of Employer 's witnesses as credited" and
not "I have credited the testimony of Employer's wit-
nesses ," thereby implying that the testimony, even if
credited , did not prove a coercive atmosphere. If any
ambiguity lurked in this language of the Hearing Of-
ficer , it was dispelled shortly thereafter when he re-
ferred to the "alleged" acts of misconduct with the
parenthetical comment , "if they occurred."
The dissent's characterization of the Union's wit-
nesses' contradiction of the Employer' s witnesses as
limited in scope is also incorrect . The record is clear
that , except for allegedly anonymous phone calls
about which they could not testify, the Union's wit-
nesses contradicted Employer's testimony in all es-
sential respects.
The clear thrust of the Hearing Officer's report is
that upon hearing the testimony of violence and
threats he regarded the possibility of generation of an
atmosphere of fear and coercion concerning the elec-
tion as so slight as to render it unnecessary for him to
make credibility resolutions of the conflicts in the
evidence.
The strike for recognition began November 12,
1973. The petition for election was filed November
29, 1973, and the election was held on December 21,
1973. In reaching his conclusion that no coercive at-
mosphere existed at the time of the election, the
Hearing Officer considered all instances of alleged
misconduct from the commencement of the strike to
the election and noted particularly that the alleged
misconduct, if it occurred, "had substantially subsid-
ed for a significant period before the election to the
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point where it was non-existent at the time of the
election" and that there were no threats directed to-
ward influencing the votes of employees.
Of course, if threats or violence generates an atmo-
sphere of fear and coercion which persists to the date
of the election and taints the conditions under which
it is conducted, the election will be set aside regard-
less of the time when the misconduct occurred, the
end to which it was directed, or the persons responsi-
ble for its perpetration. But the quality of the evi-
dence firmly buttresses the Hearing Officer's conclu-
sion that the alleged misconduct did not impede a
free choice by the electors. There was no evidence of
any personal attacks upon or deliberate physical in-
jury to anyone. The union representative, who spent
a considerable amount of time at the picket line, em-
phatically warned strikers against any violence on
the picket line.
The dissent challenges the majority's statement
concerning the warning of Union Representative
Ewing against violence on the picket line and inti-
mates that he was encouraging violence away from
the picket line. Richard Skaggs, identified in the dis-
sent as a striker although he was on strike for only a
week and a half and went back to work while the
strike was still in progress , was called as a witness by
the Employer and gave the testimony quoted by the
dissent that "if there was any trouble . . . keep it
away from the picket line." Skaggs responded un-
equivocally in the negative each time, however, when
asked whether "Ewing was encouraging acts of vio-
lence away from the plant," whether he was "encour-
aging the people to do anything untoward away from
the plant," or whether he suggested it was "okay if
they did it away from the plant."
During the 39 days of the strike which preceded
the election on December 21 the claims of miscon-
duct consisted of (1) sporadic instances of property
damage resulting from such activities as hurling mud,
empty beer cans, and rocks at motor vehicles or dam-
aging their tires or other parts; (2) four threats of
physical injury in the give and take between strikers
and nonstrikers near the picket line, none identified
as later than December 4; (3) four threatening phone
calls, three in November and one on December 10;
(4) one call at an employee's home on an unidenti-
fied date; and (5) two instances of cars being fol-
lowed and two instances of cars run off the road,
none of which was fixed in time as occurring after
November 28.
In a zealous endeavor to demonstrate that alleged
strike misconduct before the election generated an
atmosphere of fear and coercion, the dissent com-
ments with respect to the above description of al-
leged misconduct, not that it is inaccurate, but that
"the majority has chosen to identify the violence and
threats only cursorily" and proceeds upon a "more
complete delineation of these incidents." This deli-
neation catalogues in meticulous detail a total of
some 26 claimed incidents of violence and threats in
the 39 days of the strike prior to the election.
It is immediately apparent that many of these so-
called incidents, such as flat tires, throwing tacks,
mud, and empty beer cans, and uttering vulgar epi-
thets on the picket line, while they might arouse an-
ger, would hardly engender fear with respect to vot-
ing. Moreover, in its strenuous effort to find a tainted
election-day atmosphere, the dissent describes a
number of so-called incidents in terms which exag-
gerate their coercive quality. For example, the dissent
states that "On November 29, a striker assaulted the
Employer's controller and attempted to seize his
camera ." The record shows that a bookkeeper for the
company was stationed in the lobby of Employer's
main office building with a camera so that he could
photograph any occurrences involving the pickets
and persons entering the premises. On the day in
question, he started to take the picture of a female
striker walking into the company parking lot. Ac-
cording to the testimony of the bookkeeper, who had
been taking her picture daily, she told him "she was
tired of me taking pictures" and "grabbed the cam-
era" and tried to pull it away. A male picket told her
to stop and she did. The bookkeeper testified that he
was not hurt at all and the camera was damaged only
slightly.
The dissent states that on December 14 an auto-
mobile incurred a flat tire when a picket threw tacks
in front of the car and around the same day another
picket threw a block of wood with spike nails in the
path of an automobile. The testimony of the
Employer's witness was that she saw the striker from
25 to 50 feet away make a throwing motion, could
not actually see that she threw anything, and no
tacks were found in the tire when it was repaired. She
testified that the block of wood was thrown 25 feet in
front of the car and she drove around it.
In another overstatement of the record testimony,
the dissent asserts that "On November 30, during the
rock-throwing incidents, there were 20 to 25 strikers
massed at or near the picket line." The Employer's
witness who testified in this connection at first stated
that when he arrived at the plant sometime between 5
and 5:30 in the morning on November 30, there were
probably 15 or 20 people around the picket line and
across the street, but later, estimating , stated the
number to be 20 to 25. When he drove out of the
plant between 5:30 and 5:45, he saw only about three
or four strikers. It was at this time, according to his
testimony, that the rock throwing occurred. He iden-
SERVOMATION OF COLUMBUS 507
tified striker Jarvis as one of the persons who threw
rocks at his truck on November 30. Other testimony,
however, makes clear that Jarvis was out of the city
on the morning of November 30.
Among the "threats of personal physical injury"
listed by the dissent in its inventory of "incidents"
are utterances which amount to no more than ob-
scene name calling. There was evidence of such name
calling by nonstrikers leaving the plant and replies in
kind of similar expletives, but these can hardly be
deemed to import an intent to inflict physical injury.
In one instance cited in the dissent, for example, a
nonstriker testified that a striker threatened to "whip
my ass" as he was crossing the picket line. His fur-
ther testimony, not referred to in the dissent, was that
he got out of his car and the striker walked away.
The general orderliness of the picket line is attest-
ed to by a variety of circumstances in addition to the
strict warning of the union representative. A number
of the strikers brought their children to the picket
line. The bookkeeper assigned to take pictures of ev-
erything that happened acknowledged that he "could
be" "the main expert on what was going on out
front" and testified that he never saw rocks thrown
and never heard anything hit any car. Employer's
regional manager, who came to the Company's of-
fices in Columbus the day the strike began, instruct-
ed the district manager to maintain a strike log of all
activities, informed all supervisors to report any inci-
dent that occurred "regardless how minor it might
seem, and testified that conditions had stablized by
election day, that plant operations were maintained
on an even keel during the strike, that he was at the
picket line almost every day, that he "didn't have any
fear," and that "nothing ever happened" to him.
Persons involved in alleged incidents testified that
"they had no reason to be in fear about voting" and
"weren't afraid to vote." One employee on leave,
who testified with respect to a telephone threat, tele-
phoned a striker the day before the election to offer
her a ride and, in fact, drove her down to the plant
where they both voted.
The dissent asserts that "the Union was clearly re-
sponsible for all the assaults and vandalism which
occurred on the picket line" and in support thereof,
among other things, notes that "International Union
Representative Ewing spent a considerable amount
of time at the picket line." We have already discussed
Ewing's firm instructions with respect to a peaceful
picket line and the dissent's overdrawn accounts of
picket line conduct. The Employer's counsel appears
to agree with us rather than the dissent, for he stated
on the record , as a reason for not seeking judicial
relief against the Union, that "the firm determined
that the evidence available to the Company in terms
of personal involvement by Mr. William Ewing and
other professional Union officers and executives was
negligible."
There was no direct evidence of substance that on
the date of the election or at any prior time an atmo-
sphere of confusion or coercion prevailed. The mis-
conduct to which the Employer's witnesses testified
was not of such a character as to generate anxiety or
fear of reprisal or to impede a rational, uncoerced
expression of choice as to a bargaining representa-
tive. The Hearing Officer was clearly correct in rec-
ommending that Employer's Objection 5 be over-
ruled and we adopt his recommendation.'
Challenged Ballots
In the election, 37 votes were cast for the Union,
30 against, and 7 ballots were challenged by the Em-
ployer on the ground that each employee had en-
gaged in strike misconduct and would be denied re-
instatement if he applied. At the hearing the Union
offered to waive the right to have the seven chal-
lenged ballots counted, but the offer was not accept-
ed by the Employer. The Hearing Officer's report
recommended that the challenges be overruled and
that the seven ballots be opened and counted. He
reached this conclusion based on evidence that the
seven employees were on the Excelsior list and had
not been notified of their discharge-prior to the elec-
tion. This conclusion is supported by the decision in
N. L. R. B. v. Pacific Gamble Robinson Co., 438 F.2d
112 (C.A. 9, 1971), upon which, among other Board
decisions, the Hearing Officer relied. We affirm this
determination for the further reason, apart from lack
of notice to the employees, that there was no un-
equivocal evidence of termination prior to the elec-
tion. Counsel for the Employer made an offer of
proof of an oral conversation with an unidentified
"agent" in the Cinncinnati Regional Office that the
seven employees would not be reinstated if they ap-
plied for reinstatement at some unspecified future
date. No witness or testimony with respect to this
conversation was offered. Accordingly, we shall
adopt the Hearing Officer's recommendations on
these challenged ballots.
3 The Employer's exception to the Heanng Officer 's exclusion of certain
hearsay testimony is not well taken. There is no quarrel with Employer's
basic proposition that hearsay evidence is generally admissible in adminis-
trative hearings . But the Heanng Officer did not exclude all hearsay evi-
dence or the evidence in question solely because it was hearsay. He ruled
only that he would not admit hearsay testimony with respect to incidents of
misconduct where there was direct evidence by eyewitnesses concerning
those incidents His ruling permitted hearsay testimony as to events with
respect to which direct evidence was not available . We consider his ruling
an appropriate exercise of discretion.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is hereby ordered that the above-entitled matter
be, and it hereby is, remanded to the Regional Direc-
tor for Region 9 to carry out the Board' s direction
herein.
DIRECTION
It is hereby directed that the Regional Director for
Region 9 shall, pursuant to the Board's Rules and
Regulations, within 10 days from the date of this De-
cision, Order, and Direction, open and count the bal-
lots of Jackie R. Cline, David Crabtree, Mary Evans,
Ernest R. Jarvis, Terry D. Mathews, Jesse O. Puck-
ott, and Marguerite H. Smith. Thereafter, the Re-
gional Director shall prepare and cause to be served
on the parties a revised tally of ballots, including
therein the count of the foregoing ballots. On the
basis of this revised tally of ballots, the Regional Di-
rector shall thereupon issue the appropriate certifica-
tion.
MEMBER KENNEDY , dissenting:
My colleagues' failure to set aside the election
herein is, in my view, contrary to both Board and
court precedent. I find that this election was con-
ducted in an atmosphere of fear and coercion for
which the Union was at least partly responsible. In
my opinion, the Union improperly attempted to se-
cure favorable votes from eligible voters by rendering
economic inducements to its supporters which inter-
fered with the employees' free choice in the election.
The recognitional strike began on November 12,
1973. The petition was filed November 29, and the
election was subsequently held on December 21,
1973. The Hearing Officer properly considered all in-
stances of alleged misconduct from the inception of
the strike to the date of the election.4 In assessing the
testimony of the Employer' s witnesses to the violence
and threats of violence during this period, the Hear-
ing Officer treated the testimony of the Employer's
witnesses as credited in all respects, even though he
found that it had been contradicted by the Union's
witnesses. It is significant that such contradiction
was made primarily on the issue of whether the
Union or its agents, or whether a specific individual,
was responsible for the various incidents set forth
below. Such a rebuttal does not negate the truth of
the testimony of the Employer's witnesses that such
incidents did, in fact, occur. These incidents clearly
demonstrate that an atmosphere of fear and coercion
existed at the time of the election. In this regard, the
4 Willis Show Frozen Express, Inc, 209 NLRB 267 (1974), Automotive
Controls Corp., 165 NLRB 450 ( 1967).
majority has chosen to identify the violence and
threats thereof only cursorily. A more complete deli-
neation of these incidents is required.
Between November 12 and December 21, there
were four instances of property damage resulting
from missiles . A rock was thrown, destroying the
Employer's plate glass front door. On two separate
occasions rocks thrown by pickets destroyed a wind-
shield, side window, mirror, and tail light on two of
the Employer's trucks as they crossed the picket line.
Individuals broke through the Employer's 7- to 8-
foot fence and vandalized several trucks.5
On Saturday, November 24, David Crabtree,
chairman of the Union's organizing committee,
threw a beer can at a company truck as it was leaving
the plant premises. One employee's automobile was
hit by a rock thrown as the car crossed the picket
line. The rock broke the car's light. The record iden-
tifies the rock throwers as including David Crabtree
and picket captain Jack Cline. A new employee testi-
fied that shortly after he began work a group of pick-
ets including Crabtree hurled rocks at his car as it
crossed the picket line. On December 14, an automo-
bile operated by a supervisor, with an employee pas-
senger, incurred a flat tire as it entered the drive lead-
ing to the plant when a picket threw tacks in front of
the car. Also, around December 14, another picket
threw a 6-inch block of wood with spike nails driven
into it in the path of an automobile attempting to
enter the plant premises. A nonemployee almost lost
control of her automobile when she was attempting
to enter the plant premises because someone on the
picket line had thrown muddy water on her wind-
shield, thereby impairing her visibility. On Novem-
ber 30, during the rock-throwing incidents, there
were 20 to 25 strikers massed at or near the picket
line. On November 29 a striker assaulted the
Employer's controller and attempted to seize his
camera.
The threats of personal physical injury revealed by
the record are similarly ample. A striker threatened
to "whip the ass" of a nonstriking employee who was
crossing the picket line. Another striker threatened
an employee who was crossing the picket line, saying
that "when you leave, your ass is mine."
On December 4 a striker told an applicant for em-
ployment at the plant that if the applicant wanted
her babies to have a father, not to start to work. In
mid-November the husband of a nonstriking em-
3 Wirecutters and lockcutters were stored in the Union 's trailer, parked
near the picket line, which the Union used as strike headquarters . A local
service station operator testified that it repaired between 8 and 10 damaged
tires a week . The tires were sent to it by Servomauon and were part of
Servomation equipment and private passenger vehicles as well. Most of the
damage resulted from roofing nails, but some of the damage was identified
as the result of slashing , severed tire valves, and sidewall punctures
SERVOMATION OF COLUMBUS
ployee was told by a striker that if his wife continued
to work she wouldn't see her daughter anymore.
Threats were also made by anonymous telephone
calls. On November 30, the wife of an employee
whose truck had been bombarded with rocks by
strikers received an anonymous telephone call. The
anonymous caller asked her, "do you live in a yellow
house on Mudhouse Road?" and when she answered
yes, the caller stated "we just paid you husband a
visit and you are next." On November 2, an employ-
ee who had returned to work after striking for 3 or 4
days began receiving anonymous phone calls at night
advising him not to go to work. On December 10, an
employee on leave of absence received an anony-
mous telephone call in which the caller inquired if
she was returning to work. The employee responded
that she was "going in to talk to them," whereupon
the caller advised the employee not to go to work,
and inquired if the employee had a son who "walked
to school." The employee's son was just then getting
ready to leave for school.
The testimony also established that there are four
instances in which cars were followed by pickets. On
one occasion which occurred between November 26
and December 8, a picket's car followed the automo-
bile of an employment applicant and attempted to
run it off the road. On another occasion, unidentified
as to date, a picket's car followed that of a nonstrik-
ing employee and tried to force it off the road.
Other threatening conduct occurred at the homes
of employees in addition to the anonymous tele-
phone threats. In two instances the tires of employ-
ees' cars were damaged while the vehicles were
parked in front of the employees' homes. In another
instance a company truck was damaged while it was
parked in front of on employee's home. One of these
occurrences took place on December 19, 2 days be-
fore the election. Another employee's car was van-
dalized as it sat in front of his house.
The Union was clearly responsible for all of the
assaults and vandalism which occurred on the picket
line. This misconduct, of course, includes the inci-
dents when pickets left the picket line in automobiles
to follow employees' and applicants' cars and at-
tempted to run those automobiles off the road. Picket
captain Cline, paid by the Union, was himself re-
sponsible for several incidents of threats of personal
injury and property damage on the picket line. More-
over , International Union Representative Ewing
spent a considerable amount of time at the picket
line. On these facts the law is clear that the Union is
to be held responsible for the picket line violence .6
6 Lithographers and Photoengravers International Union , AFL-CIO, CLC,
and Memphis Local 223, Lithographers and Photoengravers International
Union, AFL-CIO, CLC (Holiday Press, a division of Holiday Inns, Inc.), 193
509
A union is liable for the acts of its agents commit-
ted within the scope of their general authority, even
though the union has not specifically authorized or
ratified, or indeed may have forbidden, the act in
question.' The misconduct in this case occurred
while the picket captain was present on the picket
line all day, every day, and where admittedly the
Union's representative was present a considerable
amount of the time. The Union took no steps to pre-
vent this conduct, nor did it discipline in any way the
paid pickets who committed these acts. On the con-
trary, many of the pickets who have been identified
as causing the property damage, or uttering the
threats of personal injury involved here, had been
and continued to be paid by the Union for their pick-
eting duties. I conclude that the Union is responsible
for the picket line violence in this case. Holiday Inns,
supra.8
The record also reveals that the Union may have
had more than a remote connection with the anony-
mous telephone threats made to employees at their
homes and the property damage suffered by employ-
ees at their homes. Striker Richard Skaggs testified
that Ewing instructed the pickets to make a written
record of the license plate numbers of the automo-
biles of new employees or applicants for jobs at the
plant during the strike. Ewing stated that he would
get the license number checked and find out the
man's name and address, which he could get checked
because he held a position as constable at a neigh-
boring community. It appears to me that there may
be more than mere coincidence between this direc-
tion of Ewing's and the subsequent property damage
and threats made to employees at their homes.
The violence described above was clearly such as
to cause an employee trepidation and confusion con-
cerning his employment rights and his right to sup-
port or not to support the Union .9 While much of the
misconduct in this case occurred more than 3 weeks
before the election, it is clear that it continued at
least until 2 days before the election on December
21. I cannot find in the record that period of time
which the Hearing Officer and my colleagues refer to
as the period when this misconduct "had substantial-
ly subsided for a significant period before the elec-
tion " Furthermore, such a finding is not only insuffi-
cient in fact, but is also defective in law. In Ciervo
NLRB 11 (1971).
7 Local No. 235, Lithographers and Photoengravers International Union,
AFL-CIO (Henry Wurst, Inc.), 187 NLRB 490.
8 The majority states that Ewing "emphatically warned strikers against
any violence on the picket line." This is not quite the case. The record
reveals that what Ewing said was that "if there was any trouble , let it not be
on the picket line, keep it away from the picket line." I regard such a
statement as something less than a clear unequivocal direction to strikers to
refrain from engaging in any misconduct.
9 Sonoco of Puerto Rico, Inc, 210 NLRB 493 (1974).
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blanco, Inc. & Blanco Venado, Inc., 211 NLRB 578
(1974), the Board was confronted with an objection
to an election wherein there was no evidence of pick-
et line violence occurring after June 15, and where
the election was not held until July 11. Such a hiatus
in the violence was much more significant than what-
ever brief period existed in this case which the major-
ity chooses to call significant. Nevertheless, in Ciervo
Blanco, this Board stated categorically that "this con-
duct during the critical period, no matter when dur-
ing that period it occurs, is grounds to set aside an
election." 10
Moreover, I would find that the extra payments
made to individual strikers by the Union before the
election , which were made in addition to the sum
paid them weekly for their picketing duties, were ex-
cessive compensation to these employees which tend-
ed to obligate them to vote for the Union in the
forthcoming election . Four of these seven payments
were made the day before the election. One of the
employees received $75 and the other three $100
each. Only two of the employees who received these
payments testified. According to one, he received the
money because he needed money and food. Accord-
ing to the other, he received the money in order to
make payments on his car and tires and for "Christ-
mas." Contrary to the Union's written record of
these payments, neither of these two employees re-
ceived the money in order to pay rent. "Rent" is also
10 In Ciervo Blanco, the Board also rejected the rationale here used by the
Hearing Officer , to the effect that the misconduct was directed toward pre-
venting the Employer from conducting its business during the strike, and
thus was not directed toward interfering with the election As the Board said
in Ciervo Blanco, "We have serious doubts that the employees made such
nice distinctions "
the notation entered for other extra payments made
to strikers both before and after the election.
The Sixth Circuit Court of Appeals just recently
reversed the Board on its failure to find objectiona-
ble conduct in a union's excessive payment to em-
ployees for serving as union observers in the elec-
tion." The court held that the intent or absence of
intent on the part of the union to influence the em-
ployees' votes by the overpayments is not a control-
ling factor. The controlling test is whether these ac-
tions had a tendency to influence the election results.
The court approved the decision of the Fourth Cir-
cuit in Collins & Aikman Corporation v. N. L. R. B., 383
F.2d 722 (1967), which was cited with approval by
United States Supreme Court in N. L. R. B. v. Savair
Mfg. Co., 414 U.S. 270 (1973). In the Collins case, the
Fourth Circuit found that it was objectionable con-
duct when the union paid an employee $7 to serve as
its observer at the election, where the employee had
lost but $2 of wages by so serving.
In my view, the payments in this case, particularly
the three $100 payments made to employees on the
very day preceeding the election, payments which
were in fact outright gifts to eligible voters, clearly
had a tendency to induce in those employees a feel-
ing that they were obligated to vote for the Union in
return.
Accordingly, in the event that the revised tally of
ballots to be issued following the opening and count-
ing of the challenged ballots shows that the Union
has received a majority of the ballots cast, I would
set aside this election and direct a second election. If
the Union does not receive a majority of the ballots
cast, I would certify the results of the election.
I Plastic Masters, Inc v. N L R B, 512 F 2d 449 (1975).