Smith Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 1969

178 N.L.R.B. 294 (N.L.R.B. 1969)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith Industries , Inc. and United Steelworkers of
America , AFL-CIO. Case 23-CA-2500
August 29, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On March 23, 1967, the National Labor
Relations Board issued its Decision and Order' in
the above-entitled proceeding Thereafter, on
November 12, 1968, the United States Court of
Appeals for the Fifth Circuit entered an opinion and
decree,' remanding the matter to the Board with
direction to afford Respondent a hearing with
respect to the validity of the election and
certification. On January 17, 1969, the Board issued
its Order Reopening Record and Remanding
Proceeding to Regional Director.
On June 5, 1969, Trial Examiner Morton D,
Friedman issued his Decision on Remand, attached
hereto, finding that Respondent's objections to
conduct affecting the results of the election were
without merit and, therefore, that the Board
properly certified the Union pursuant to the results
of that election. Accordingly, the Trial Examiner
concluded that Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act, as
amended, by refusing to recognize and bargain with
the Union as the exclusive representative of
employees in the appropriate unit. Thereafter,
Respondent filed exceptions to the Decision and a
supporting brief, and the General Counsel filed 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
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, only to the extent consistent
herewith-'
The Trial Examiner found that certain
misrepresentations which were embodied in a union
leaflet distributed shortly before the election, were
not sufficiently misleading, or of sufficient import,
to warrant setting the election aside. We do not
'163 NLRB No 93
'403 F 2d 889 (C A 5)
'In view of our disposition of the case we find it unnecessary to decide
whether or not an atmosphere of fear prevailed throughout the plant
sufficient to have had an impact upon the results of the election
agree
The election was held on April 7, 1966. The
handbill in issue was circulated on April 5, 2 days
before the election . Therein, the Union asserted with
respect to its contract with a competitor company of
the Employer , whose employees are represented by
the Union, that " the Christmas bonus was tied
down in writing in the contract ." In fact , not only
did that contract fail to provide for a Christmas
bonus, but the record makes clear, and the Trial
Examiner found , that the Union had traded any
claim for such a benefit in exchange for other items.
Although the Trial Examiner found that the
Employer distributed a handbill on April 6 "which,
at least , was somewhat successful in answering the
Union's claims ," that leaflet did not challenge the
false assertion discussed above. Indeed , during the
brief period between the April 5 distribution of the
Union leaflet and the April 7 election, Respondent
was unable to gather the true information on this
issue, much less disseminate that information to its
employees.
Thus, the handbill in question contained a
substantial misrepresentation with respect to a wage
related subject , a matter of the utmost concern to
employees voting in the election . It was made by a
party in an authoritative position to know the true
facts, and the handbill was circulated at a time
which precluded effective reply. The Union thus
exceeded the bounds of lawful electioneering and
interfered with the free choice of the employees.
Accordingly, the certification of the Union by the
Board is invalid and Respondent , by refusing to
recognize and bargain with the Union, did not
violate Section 8(a)(5). We shall dismiss the
complaint in its entirety.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
For the reasons set forth by the Trial Examiner, I
would affirm his decision.
TRIAL EXAMINER ' S DECISION ON REMAND
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Trial Examiner : Pursuant to
stipulation between United Steelworkers of America,
AFL-CIO, herein called the Union , and Smith Industries,
Inc., herein called the Respondent , a consent election was
conducted in Case 23-RC-2646 on April 7, 1966, by the
Regional Director for Region 23 of the National Labor
Relations Board , herein called the Board, among
Respondent ' s employees in an agreed - upon appropriate
unit in which of approximately 215 eligible voters, 212
cast ballots, of which Ill were for, 85 were against, the
Union and 16 ballots were challenged Thereafter, on
April 14, 1966, Respondent timely filed objections to
conduct affecting the results of the election Thereupon,
the aforesaid Regional Director investigated the objections
178 NLRB No. 46
SMITH INDUSTRIES 295
and on July I, 1966, issued his report finding the
objections to be without merit and recommending that
they be overruled in their entirety and that the Union be
certified as bargaining representative of Respondent's
employees in the appropriate unit. Thereafter, on July 13,
1966, the Respondent timely filed exceptions to the
Regional Director's report on objections On August 26,
1966, the Board issued a Decision and Certification,
adopting the Regional Director's findings and certifying
the Union as exclusive bargaining representative of the
Respondent's employees in the appropriate unit.
Thereafter, upon a charge filed by the Union on
September 13, 1966, the aforesaid Regional Director
issued his complaint in the instant proceeding dated
September 20, 1966, alleging that Respondent refused to
bargain with the Union in violation of Section 8(a)(5) and
(1) of the Act. Respondent filed a timely answer to the
said complaint in which it admitted jurisdiction but denied
all the other material allegations. On October 7, 1966,
counsel for the General Counsel filed a motion for
summary judgment, which motion, upon order to show
cause issued by a Trial Examiner of the Board, was
answered by the Respondent which, in essence, stated that
the certification of the Union was improper because the
objection to the election tiled by the Respondent in Case
23-RC-2646 had merit and the Respondent should have
been given a hearing thereon and an opportunity to
present evidence in support thereof On January 11, 1967,
a Trial Examiner issued his decision on motion for
judgment on the pleadings in which General Counsel's
motion for summary judgment was granted and the
Respondent was found to have violated Section 8(a)(5)
and (1) of the Act. On March 23, 1967, the Board issued
its Decision and Order ' affirming, without comment, the
findings and recommendations of the Trial Examiner and
adopting as its Order the Recommended Order of the
Trial Examiner
Thereafter the General Counsel filed with the United
States Court of Appeals for the Fifth Circuit a petition
for enforcement of the Board's Order, to which petition
the Respondent filed an answer. On November 12, 1968,
the court of appeals handed down its opinion refusing to
enforce and setting aside the Board's Order and
remanding the case to the Board for a full hearing
Pursuant to the aforesaid remand, the Board, on
January 17, 1969, reopened the proceeding and remanded
it to the Regional Director for Region 23 for a full
hearing before a Trial Examiner for the purpose of
permitting the Respondent to adduce evidence in support
of its objections to conduct affecting the election in order
to test the validity of the election and the resulting
certification Said order further instructed the Trial
Examiner, upon the conclusion of the hearing, to prepare
and serve upon the parties a decision containing findings
of fact, conclusions of law, and recommendations
Pursuant to notice issued by the said Regional Director,
a hearing was held before me in Houston, Texas, on
March 11, 12, and 13, 1969, in which all parties appeared
and were afforded full opportunity to present evidence of
the subject matter of the remand, examine and
cross-examine the witnesses, present oral argument, and
file briefs Briefs were filed by counsel for the Respondent
and for the Union
Upon the entire record in this case, including the
court's opinion and decree, the Board's Decision and
Order and subsequent order reopening the record, the
record in Case 23-RC-2646, the evidence adduced at the
hearing before me, and all the briefs submitted by the
parties, and upon my observation of each of the witnesses
as they appeared before me , I make the following-
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE ISSUES INVOLVED
As noted above, the remand ordered by the court of
appeals and the Board involves the merits of the
Respondent's objections to conduct affecting the results of
the election conducted by the Board on April 7, 1966. The
objections relate to the contents of a handbill distributed
by the Union on April 5, 1966, alleged by the Respondent
to contain material misrepresentations which the
Respondent did not have sufficient time to effectively
answer and to alleged threats made by the Union and
others to employees which, according to Respondent,
created an atmosphere of fear surrounding the election
Because the case arises in the context of a
refusal-to-bargain proceeding, if the objections have merit,
the Respondent, which admittedly refused to bargain, did
not violate Section 8(a)(5) of the Act because the
certification of the Union was improper On the other
hand, if the objections do not have merit, the
Respondent's refusal to bargain constitutes a violation of
Section 8(a)(5) and (1) of the Act. Thus, the issues are-
(A) Did the Union's handbill circulated 2 days before
the Board-conducted election contain such
misrepresentations with regard to wages and fringe
benefits obtained by the Union in other comparable plants
as would warrant setting aside the election?
(B) Did the Union, or others, threaten unit employees
prior to the election, and if so, did such threats create an
atmosphere of fear which prevented a free and
untrammeled choice in the election?
(C) Did the Respondent unlawfully refuse to bargain
with the Union in violation of Section 8(a)(5) of the Act?
II. THE UNFAIR LABOR PRACTICES
A The Misrepresentations by the Union
To comprehend fully the significance of the handbill of
which the Respondent complains, it is necessary that some
of the history of the organizing attempts which the Union
undertook at the Respondent's plant be related. The
campaign by the Union to organize the Respondent's
employees began sometime in the spring of 1965 This
campaign resulted in a Board-conducted election, held on
May 27, 1965, which the Union lost.
Preceding the Union's campaign at the Respondent's
plant, the Union had organized the employees at
Respondent's competitor, Allied Chain Link Fence
Company, herein called Allied. The Union won the
election at Allied and at the time of Union's 1965
campaign at the Respondent's plant, the Union and Allied
were bargaining. However, this bargaining failed to
produce agreement and Allied employees went out on
strike. Evidently, the fact that Allied employees went out
on strike became very important to the Respondent's
employees and had a significant impact upon the 1965
election at the Respondent's plant which the Union lost '
'163 NLRB 583
'403 F 2d 889
'All of the foregoing from the uncontroverted testimony of Marion
Faulkner , personnel manager of the Respondent during the critical times
herein
29 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the 1966 campaign which culminated in the
election conducted by the Board on April 7, the strike at
Allied had been settled and it was reported that the Union
had obtained a very favorable contract for the employees
of Allied whom it represented During that period of time,
a number of the employees of the Respondent approached
Marion Faulkner, Respondent's personnel director, and
asked him questions about the Allied contract, whether
Faulkner knew if the employees at Allied had received a
50-cent-an-hour wage increase, if they had obtained 3
weeks' paid vacation, and the general question of whether
Faulkner knew what the package was at Allied
Thus, the Union's contract with Allied became one of
the important issues during the Union's campaign prior to
the 1966 election, and both sides campaigned with regard
thereto As the election date drew near the campaign, as
in many instances of union organizing activity, became
very intent, acidulous, and acrimonious During this
preelection period, the Respondent's theme, among other
things, was a constant questioning in its handbills as to
the whereabouts of the Allied contract and what were the
details thereof In effect, the Respondent wanted to know
what the Union had produced for the employees of Allied
and wanted to know why the Union did not publish what
it had obtained at Allied In other words, it asked the
Union to "put up or shut up " Finally, coming down to
the end of the campaign, this questioning of the Union's
motives and the Union's accomplishments resulted in the
issuance by the Respondent of several handbills or letters
circulated within a week or two before the election Thus,
on March 31, a Respondent letter was devoted almost
entirely to the "Allied contract " In that letter the
Respondent wanted to know "where is the Allied
contract?" Then again after reciting the history of the
labor problems at Allied, the letter read" . We
understand that a contract has now been signed BUT
WHERE IS ITS" Then, in that same letter, the
Respondent asked the employees to obtain copies of the
Allied contract and compare it to the benefits they were
receiving currently at the Respondent's plant The letter
ended up with telling the employees not to make their
choice in the dark, to make the Union show how little the
strike brought the employees at Allied, and asking the
employees whether they needed such a Union It requested
the employees to vote "NO" at the election
On April 2, a similar letter was circulated by the
Respondent That letter contains the following paragraph
Look at that blue letter again Is the union interested
in building or destroying - adding to or taking apart9
Then think of the Allied and Proler employees who
bought the union line WHERE IS THAT ALLIED
CONTRACT?
In a questionnaire attached to a letter dated April 4,
the Respondent asked, "Do you know what is in the
Allied contract? If the answer to any of these questions is
NO, vote NO next Thursday "
On April 5, 1966, the Union replied to the
Respondent's March 29 and April 2 letters with a handbill
which is the subject of the Respondent's objections
herein '
The Union's April 5 handbill finally set forth what
purported to be the salient features of the contract
between the Union and Allied Among these features
were that under the contract the employees at Allied
This handbill and its attachment are attached and marked "Appendix
B "[Appendix B omitted from publication 1
received gains of approximately 30 percent over what they
had been receiving before voting in the Union Wages
were increased 42 cents per hour according to the
handbill In addition, another benefit, according to the
handbill, was that the Christmas bonus had been tied
down in writing in the contract In an attachment to the
handbill the Union set forth the names of a number of
companies located throughout the country which were in
comparable businesses to the Respondent and which were
organized by the Union Then, were set forth a few
examples of wages paid in the said unionized plants
Among these wages was one paid to a classification called
in the handbill "general worker" at a rate of $2 43 per
hour
The foregoing three items are the basis for the
Respondent's objections and complaints The claim in the
handbill that a 42-cent-per-hour increase was given to the
Allied employees the Respondent contends is inaccurate,
misleading, and a misrepresentation in that the contract
actually called for the 42-cent-per-hour increase to be paid
in steps over a period of 3 years and not immediately
With regard to the Christmas bonus the Respondent
contends that the bonus was not tied down in writing in
the contract and, in fact, was not tied down at all With
regard to the rate wage of $2 43 per hour for a general
worker, the Respondent claims that none of the plants
named in the handbill at which the Union claimed it
obtained benefits for its represented employees had a
classification of general worker which was paid the wage
rate of $2.43 an hour
The Respondent claims that it had insufficient time in
which to answer these alleged falsehoods and
misrepresentations, but, in fact, although at the time the
Respondent did not have, nor had its officers ever seen, a
copy of the Allied contract, it nevertheless managed to
circulate, on April 6, a handbill which, at least, was
somewhat successful in answering the Union's claims This
handbill or letter stated in part that the increases were
spread over a number of years and were not effective
immediately The handbill of April 6 then went on to
compare various working conditions and fringe benefits of
the employees at the Respondent's plant as compared with
what the Union had alleged in its handbill of April 5 and
further argued and graphically showed that, according to
Respondent at least, the employees at the Respondent
plant were still better off than the employees at Allied
even with the gains that they procurred through the
Union It should be noted, however, that at the time the
April 6 handbill by the Respondent was written and
distributed, the Respondent still had no direct knowledge
of the terms and conditions of the Union-Allied contract
and had, in fact, been unable to procure a copy of the said
contract up to that time '
However, at the hearing herein the Allied contract was
introduced into evidence A reading of this contract
reveals that the pay increase of 42 cents was to be
received by the Allied employees in three annual steps of
14 cents each step Each step was to be a year apart so
that the raise of 42 cents was actually spread over a
period of 3 years. As noted above, the April 5 handbill of
the Union, of which the Respondent complained, merely
stated flatly that the employees had received a 42-cent
wage increase at Allied.
With regard to the statement that the Christmas bonus
had been tied down in writing in the contract, a reading of
the contract reveals that the Christmas bonus is not even
'From the uncontradicted testimony of Faulkner
SMITH INDUSTRIES 297
mentioned therein
With regard to the 42-cent-per-hour increase as set
forth in the April 5 handbill, former Union Representative
Charles Elder admitted in testifying that when he wrote
the handbill he did not know how the 42 cents was to be
allocated
In testifying with regard to the classification of
"general worker" represented as receiving up to $2 43 per
hour, Elder stated that he received these figures from the
research department of the International Union. The
research department sent to Elder the contracts for five
firms located throughout the country. The nearest
classification that Elder could find on examination by
counsel for the Respondent was one called "general
helper" and not "general worker" whose rate was $2 43
per hour This was in the Los Angeles Galvanizing
Company contract. Asked how he could have decided that
a "general helper" in the Los Angeles firm contract was
the same as a "general worker" at the Respondent's plant,
Elder was at a loss and could not explain how or why he
had changed the name of general helper to general worker
except to admit that he had changed the name to fit a
classification of a number of the employees at the
Respondent's plant However Elder refused to admit that
this was a direct attempt at misrepresentation. In
connection therewith, it should be noted that with regard
to other classifications and wages claimed by the Union in
its handbill of April 5, there were classifications with the
salaries claimed in one of the contracts used by Elder in
order to make up the statement in the handbill.
Accordingly, the reported amounts and the classifications
were accurate except for that of "general helper"
transposed to "general worker."
Elder further admitted in testifying that with regard to
the claim that the Christmas bonus had been tied down in
writing, he received this information from Union Business
Representative C T Ray Ray testified that he told Elder
that other matters such as wage increases and other fringe
benefits have been incorporated in the Allied contract and
that the bonus had been fixed also However Ray stated
that he did not tell Elder that the bonus had been fixed in
writing. Thus, if the testimony of these two witnesses is
credited to the extent above, then it can clearly be seen
how a telephone conversation could have left with Elder
an incorrect impression that the bonus had been tied down
in writing
However, Ray further testified that he had obtained as
negotiator at Allied a promise from the Allied negotiators
to the effect that if the Company could afford it, it would
pay the Christmas bonus as the Company had done in
prior years and that, therefore, verbal agreement as to the
bonuses existed On the other hand, both Robert
Bambace, an attorney who represented Allied at the
negotiations with the Union, and George B. Drummond,
who as assistant general manager had been a negotiator
for Allied during the period of the negotiations with the
Union, both testified that there had been no promise of
bonuses in the future at Allied because the Union had
given up the idea of a bonus in exchange for an additional
2-cent pay increase According to Bambace and
Drummond, Allied, up to that point, had been willing to
give a 40-cent wage increase and Ray had stated that he
did not care about the Christmas bonus, that the Union
would give that up if Allied would increase the wages by
an additional 2 cents This the Allied negotiators agreed
to and the subject of the bonus was then dropped
Although Ray additionally testified that as proof of the
fact that an oral arrangement had been made with regard
to the bonus, Allied had paid a bonus to employees in the
year 1966, after the contract had been signed. However,
both Drummond and Ronald L Seifried, an accountant
for Allied, testified that no bonus had been paid at Allied
since the contract was entered into to any member of the
unit represented by the Union From my observation of
these witnesses as they appeared before me and because
both Bambace and Drummond are no longer in any way
connected with Allied and have no interests therein, and
can, therefore, be considered to be disinterested witnesses,
I credit their version of the negotiations between Allied
and the Union and find as a fact that no arrangement was
made either oral or written for bonuses to be paid to the
Allied employees after the contract of 1965 was entered
into
B The Alleged Atmosphere of Threats
It would seem that a number of employees were told by
their fellow employees that if they did not join, assist, or
vote for the Union in the election they might lose their
jobs. Thus, employee Murphy Smith, credibly testified,
without contradiction, that about 2 weeks before the
election fellow employee Lee Bostick asked Smith to sign
a union card Bostick told Smith that a majority had
already signed and that if Smith did not sign he would
lose his job. About the same time, according to Smith, an
unknown and unidentified man came to Smith's house and
asked Smith to sign a card Smith refused and the man
told him that if he did not sign a card he would stand a
chance of losing his job. Smith on cross-examination
admitted he was not frightened and he further admitted
that neither his conversation with Bostick nor with the
unidentified man induced him to sign a card or kept him
from voting in the election He did not vote in the election
but he did not fail to vote because of any threats against
him He knew he could vote against the Union in the
election if he so chose.
Employee Ivory Clark testified, without contradiction,
that about 3 weeks before the election he had a
conversation with fellow employee, Charles Sanders.
Sanders told Clark that the latter would not be working
for the Respondent if he did not help get the Union in.
Clark was not frightened and told Sanders that the latter
was not running anything and that he was not ready to
sign a card. He also cursed at Sanders. Clark admitted
that he had a right to do anything he wanted to do
without Sanders telling him what to do. As far as he
could see nobody was really afraid to speak out. On
cross-examination Clark further admitted he voted in the
election and voted the way he wanted to and nothing that
Sanders said had any effect on his vote. Nor did any of
his fellow employees say that their vote in the election was
affected because of fear.
Paul R. Steffenhagan, another employee, had separate
conversations about a week before the election with
employees Durrell Derbigney and Sammy Williams. The
Derbigney conversation took place about a week before
the election in the garage of the plant Derbigney asked
Steffenhagan whether the latter was going to vote for the
Union and Steffenhagan refused to give him a yes or no
answer. Then Derbigney told Steffenhagan that the latter
should vote for the Union because if he did not in the long
run he would be sorry When Steffenhagan asked
Derbigney what the latter meant by that remark,
Derbigney answered that Steffenhagan could be fired
within 90 days after the Union had gotten in. About a
week and a half before the election Steffenhagan had a
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation with fellow employee Sammy Williams This
took place also in the garage Williams asked
Steffenhagan if the latter had heard anything to the effect
that if they did not join the Union they would be fired
within 90 days and Steffenhagan answered in the
affirmative Williams said that he was told the same thing
and he wanted to know if there was any truth behind it
Steffenhagan answered that he did not know and that
Williams would have to go beyond Steffenhagan to check
the truth of the matter Steffenhagan admits that he
talked to Vice President Kendall about the matter and
Kendall told him not to worry about losing his job in 90
days after the Union came in Steffenhagan admitted that
he believed Mr Kendall and did not believe Mr
Derbigney He further admitted that he voted in the
election the way he wanted to and that he thought
Derbigney was just puffing. Steffenhagan also admitted
that he was aware and knew of the effect of the Texas
right-to-work law and the meaning of that law He further
admitted that he was not afraid to vote in the election in
any way that he wanted to and he stated that he did not
know any other employees who did not vote the way they
wanted to
About 2 weeks before the election employee Joseph M
Beke had a conversation with employee Robert Bostick
There were three other employees present whom Beke
could not name Bostick told Beke to join the Union and
Beke said, "Hell, no " Then Bostick said that "We will
fix you " Beke testified that he did not know how to take
Bostick's remark but he was a little worried about it and
he told his supervisor, a Mr. Welch, about it Welch said
that they would just have to wait and see what happened
Welch told him not to be afraid Beke then took the
precaution to protect himself by putting a gun in the glove
compartment of his car The gun was not loaded and had
no shells in it On cross-examination Beke admitted that
he voted the way he wanted to in the election and that
what Bostick said did not have any influence on him on
the way he voted He admitted that he did not feel afraid
to speak out about how he felt about the Union although
he did not do so He further admitted that after Bostick
said he was going to fix him, Beke paid no more attention
to the remark
Employee Shedrick Little also testified as to remarks
made to him by an employee whom he identified as "Doc
Squale" and another employee by the name of "Derail "
Although Little testified to certain incidents concerning
these two individuals, I cannot and do not credit any of
Little's testimony inasmuch as he made several
statements, prior to the hearing, to the General Counsel
with regard to these threats and then retracted them twice
in letters to the General Counsel asking that his
statements be ignored Accordingly, I do not credit any of
Little's testimony and do not rely on it to any extent
Employee Harry Swierkowski overheard a conversation
a few weeks before the election between employee I C
Clark and Charles Sanders. Sanders asked Clark if the
latter wanted to sign a union card and when Clark
answered in the negative Sanders told him that when the
Union came in Clark would not have a job Sweirkowski
testified that Clark still refused to sign a card, even after
this remark by Sanders Swierkowski admitted on
cross-examination that he knew that Sanders could not
fire anybody and further testified that he knew the content
and import of the Texas right-to-work law Swierkowski
admitted further that he thought that he could work at the
Respondent's establishment without belonging to the
Union regardless of what Mr Sanders or anybody else
said Further, Swierkowski voted in the election and this
conversation had nothing to do with the way in which he
voted
Employee Sammy Williams, during the campaign, was
asked by employee Jim English to sign a card English
told Williams that he would better himself by signing a
card and the quicker the Union came in the more money
they were going to make However, Williams then
admitted that this was after the election and not before
However, both before and after the election employee
Durrell Derbigney spoke to Williams Derbigney wanted
Williams to sign a union card and he said the quicker he
signed the card the better it would be Derbigney said that
if Williams did not sign a card that Williams would not
go any further, meaning, probably, that he would not
receive any further promotions On cross-examination,
however, Williams admitted that he knew about the Texas
right-to-work law and that he did not have to belong to a
union to work in Texas Williams admitted that he voted
in the election the way he wanted to despite the
conversations with other employees.
In sum , then, the testimony of the foregoing employees
showed that some of them were told that if they did not
join or assist the Union they would lose or possibly lose
their jobs However each of these employees in turn
admitted that they knew they could not be fired if they
did not join the Union and they were aware of the Texas
right-to-work law and/or that they voted in the election
the way they wanted to and were not influenced in any
way by the so-called threats of losing their jobs
However, in the case of Elijah Fieast, the results of his
speaking out against the Union amounted to more than
mere threats Fieast's testimony, supported by testimony
of Melvin Williams, reveals that Fieast made a speech at
a safety meeting in favor of the Respondent and against
the Union several weeks before the election Thereafter
Fieast was subjected to threats by fellow employees with
regard to his physical safety Although Fieast was never
physically assualted, his property was either destroyed or
damaged by persons unknown Thus, Fieast stated that
thermos bottles were taken from his locker and smashed
and other personal property was destroyed But even more
serious was the fact that Fieast's pickup truck was
damaged on two separate occasions. On the first occasion,
Fieast came out to the parking lot of the plant and could
not start his car. When he looked under the hood he
found that someone had removed and smashed an
electrical component and he had to buy a new one in
order to get the car started Even more serious was the
fact that one day Fieast came out to the parking lot and
found that his truck had been painted with threatening
and obscene words to such an extent that Fieast was
unable to remove these threatening and obscene words It
was necessary for him to have his truck repainted 6
However, despite this damage to Fieast's property and
despite threats made to him by employees with regard to
his physical well-being, Fieast testified that he had no fear
of speaking out and that he voted in the election exactly
the way he wanted to. He admitted that the threats and
the damage to his property did not in any way alter his
vote in the election
`I would not credit employee Melvin Williams' testimony with regard to
threats made to Fieast if Williams' testimony stood alone , because of the
fact that Williams' prehearing affidavits made no mention of these threats
to Fieast However, because I was impressed with the testimony of Fieast
which went uncontradicted, I credit that part of Melvin Williams'
testimony which is supported by the testimony of Fieast
SMITH INDUSTRIES
Paul D Lewis, a foreman for the past 2 years, who was
a rank-and-file employee at the time of the election on
April 7, 1966, testified that he was an ardent union
supporter and gave out approximately 15 cards during the
organizing campaign He further testified that he attended
approximately 15 to 20 union meetings before the election
and at one of those meetings Charles Elder, who presided
at the meetings and who was a union representative for
the Steelworkers, stated that if the Union would win the
election and an employee had not become a member
within 30 days, that the employee would not receive the
benefits negotiated in the union contract and would
possibly lose his job Lewis places this statement at
approximately a month before the election. According to
Lewis there were approximately 50 to 100 people at that
meeting
According to Lewis, at another meeting held
approximately 3 weeks before the election, Elder said that
if the employees went on strike and those walking in the
picket line tried to stop someone from coming to work,
the Union would back them up Lewis admitted that at
the time his reaction to Elder's statement was negative.
With regard to Elder's remarks at the first meeting, Lewis
testified that he interpreted that to mean that this was to
be a union job, that the only way to keep the job was to
become a union member However, under pressure of
cross-examination Lewis admitted that he knew about the
Texas right-to-work law and knew that no one had to
belong to a union to work in Texas He knew that nobody
could lose his job for not joining the Union He admitted
that he knew this from company pamphlets that were
passed out during the campaign Furthermore Lewis voted
in the election and he admitted that the remark made by
Elder did not affect the way he cast his ballot in the
election, he voted the way he wanted to Lewis further
admitted that physical violence was not in his mind when
he was listening to Elder tell the assembled employees that
the Union would back them up if they did not permit
anybody to cross the picket line He admitted that to him
this meant that the Union would see to it that no one lost
his job because of walking the picket line. In fact, Lewis
admitted that Elder made it clear that it was against the
law to strike anyone on the picket line
Elder denied that he ever stated to any of the
employees in the unit at any organizing meeting or at any
other time that an employee who did not join the Union
might lose his job He denied that he stated at any
meeting that employees who did not become members of
the Union within 30 days would not get the benefits and
would possibly lose their jobs Elder explained that the
only 30-day period which he mentioned to the employees
assembled at the union meeting was that the Union had
waived initiation fee for the first 30 days and that those
employees who joined thereafter would not get the benefit
of the free initiation fees. He further stated that so far as
backing up any employees on the picket line as concerned,
the only thing he might have said was that the Union, in
its customary way, would try to provide for those
employees who lost their earnings due to strikes and
picketing.
Elder was subjected to very lengthy and thorough
cross-examination I have carefully considered his
testimony on both direct and cross-examination and find
that nothing that he said on cross-examination seriously
contradicted his testimony on direct Moreover, in
connection with the alleged misrepresentations, Elder
readily admitted that the statement with regard to the
Christmas bonus was untrue but explained his reasons for
299
placing such statement in the April 5 handbill.
Accordingly, and from my observation of the witness, I
credit Elder's testimony and find that he did not in any
way threaten any employee at any union meeting with
regard to loss of job if the employees did not join the
Union within 30 days.
It should be noted in connection with the foregoing
threats that the Respondent issued among its letters to the
employees, in the preelection period, a number of notices
to the effect that the Union would not know the manner
in which an employee voted. For instance, in the letter to
the employees dated March 26, 1966, the Respondent
stated as follows
Don't be pressured by the fact that people may come
by your home Remember, you vote in secret and no
one - union or company - will know how you voted.
Don't let anyone tell you otherwise
Again on April 5, 1966, 2 days before the election, in a
letter to its employees the Respondent stated
You can vote NO whether you signed a card or not
You vote in secret and no one-company or union-will
know what you did unless you tell them.
C Discussion and Concluding Findings
The Board's rule with regard to misrepresentation has
been set forth as follows.
We believe that an election should be set aside only
where there has been a misrepresentation or other
similar campaign trickery, which involves a substantial
departure from the truth, at a time which prevents the
other party or parties from making an effective reply,
so that the misrepresentation, whether deliberate or not,
may reasonably be expected to have a significant
impact on the election. However, the mere fact that a
message is inartistically or vaguely worded and subject
to different interpretations will not suffice to establish
such misrepresentation as will lead us to set the election
aside Such ambiguities, like extravagant promises,
derogatory statements about the other party, and minor
distortion of some facts, frequently occur in
communication between persons. But even where a
misrepresentation is shown to have been substantial, the
Board may still refuse to set aside the election if it finds
upon consideration of all the circumstances that the
statement would not be likely to have had a real impact
on the election. For example, the misrepresentation
might have occurred in connection with an unimportant
matter so that it could only have had a de minimis
effect Or, it could have been so extreme as to put the
employees on notice of its lack of truth under the
particular circumstances so that they could not
reasonably have relied on the assertion. Or, the Board
may find that the employees possessed independent
knowledge with which to evaluate the statements.'
With the foregoing as a guide, I examine now the items
in the Union's handbill of April 5 which the Respondent
claims constituted such misrepresentations as would
warrant setting aside the election.
I consider first the representation made in that handbill
to the effect that the employees at Allied received a
42-cent-per-hour wage increase. The Respondent does not
dispute that the Allied contract did provide for a 42-cent
increase in wage rates but maintains that because this
increase was to be given over a 3-year period the Union
misrepresented by not stating that fact.
'Hollywood Ceramics Company . Inc. 140 NLRB 221, 224
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The short answer to the Respondent's contention is that
the Board in considering a case almost similar to one at
bar, where the union failed to add that a wage increase
described in a preelection leaflet would be effective over a
3-year period, held that the addition of this phrase would
have made the statements unmistakably clear but that the
omission thereof was scarcely enough in itself to justify an
inference that the Union's failure to add this phrase was
deliberately intended to mislead the employees. The Board
held that the characterization of a three-step wage
increase in terms of a total package is now a relatively
common method of announcing such benefits in
newspapers, trade publications, and the like and that
therefore, at worst, this was an exaggeration of fact
subject to different interpretations and as such would not
constitute a sufficient basis for setting aside an election '
As heretofore set forth, a reading of the record shows
that the contracts between the Petitioner and the
employers named in the handbill of April 5 contain the
classifications shown therein, with one exception, that of
"general worker," which is listed in one contract, that of
Los Angeles Galvanizing Company where the
classification is listed as "general helper" but pays $2 43
an hour similar to the classification of "general worker"
listed in the handbill. Elder testified that the transposition
of the word "helper" to "worker" was not readily
explicable but, he testified, that it was not a deliberate
misrepresentation While the classification of general
worker may be numerous in Respondent's plant, I do not
find that this was campaign trickery which could
reasonably be expected to have a significant impact on the
election. I do not believe this item is sufficiently
misleading to warrant setting the election aside.
There remains for consideration one item of alleged
misrepresentation which, perhaps, is the most serious of
all. This is the allegation in the April 5 handbill to the
effect that the Christmas bonus had been tied down in
writing As heretofore established, this representation is
false. It is unnecessary, under the rule of the Hollywood
Ceramics Company, Inc , case' to determine whether the
misrepresentation aforesaid was deliberate. The test would
seem to be whether it involved a substantial departure
from the truth at a time which prevented the Respondent
from making an effective reply so that the
misrepresentation, whether deliberate or not, may
reasonably be expected to have a significant impact on the
election. I note that the Christmas bonus claim, although
false, was only one out of many items set forth in the
handbill which were truthful. Far more significant were
the other items which the Union alleged it had obtained
for the employees at Allied and which claims were
truthful Inasmuch as the claim of the Christmas bonus
being tied down in writing is only one of a number of
claims made by the Union, most of which could
reasonably be said to have had more impact than the
claim of the Christmas bonus, I conclude that the Union's
representation as to the Christmas bonus was not one
which was sufficiently misleading or of sufficient impact
so as to interfere with the exercise of a free choice by the
employees who voted in the election.
In addition to all of the foregoing, although it is true
that the Respondent was unable to obtain a copy of the
contract between Allied and the Union before the election
on April 7, 1966, nevertheless on April 6, the day
following the distribution of the union handbill in
'See Russell-Newman Manufacturing Co, Inc, 158 NLRB 1260, 1264
'140 NLRB 221, 224
question, the Respondent did make a reply While this
reply did not directly contravene the allegation with
regard to the tying down of the Christmas bonus, I
nevertheless find that it was of sufficient import to have
overcome much of the significance and of the impact on
the voters of the Union's April 5 handbill.
With respect to the threats and the alleged atmosphere
of fear, a review of the testimony of each employee who
was threatened shows that none of them, under the
subjective tests recommended by the court of appeals in
this case, felt threatened or felt that they could not vote
the way they chose in the election. Each of these
employees was systematically asked on cross-examination
if each voted the way he wanted to in the election and the
answer was uniformly in the affirmative In addition, one
employee, Shedrick Little, made and withdrew his
statement several times during the investigatory period so
that his testimony with regard to threats I find to be
completely unreliable. Additionally, a number of the
employees admitted that they were aware of the Texas
right-to-work law and knew that the threats made by
fellow employees had no force or vitality Accordingly, I
find and conclude that, for the most part, the threats
amounted to nothing more than statements made by
rank-and-file employees to other rank-and-file employees
in the hurly-burly that normally abounds during the
preelection period in an industrial plant 1, therefore, give
no weight to the testimony with regard to these threats
There is, however, the matter of the actual physical
damage done to the property of Elijah Fieast. However, in
the case of Fieast, even he, after suffering property loss
and after being threatened with physical violence, if his
testimony is to be accepted, stated that he voted in the
election the way he chose and was not fearful of his
position as an employee in the plant. He further stated
that he did not worry about speaking out with regard to
his favoring the Respondent in the election despite the
threats and the damage to his property. Under these
circumstances, and given the subjective test recommended
by the court of appeals, I find that Fieast did not suffer
from any fear with regard to the manner in which he
voted in the election The most that can be said with
regard to the Fieast incidents is that other employees
could possibly have become fearful because of what
happened to Fieast However, the record is devoid of any
showing that any other employees had been influenced by
these incidents
Additionally, I note that the number of employees who
were threatened are an insubstantial number (less than a
dozen out of approximately 225) compared to the total
number of employees in the plant. Under these
circumstances, I cannot find that an atmosphere of fear
prevailed throughout the plant sufficient to have had an
impact upon the results of the election. Accordingly, I
find and conclude that although some employees were
threatened to the effect that if they did not join the Union
they might lose their jobs, and one employee suffered
some physical damage to his property, these threats and
this physical damage had insufficient impact upon the
election to warrant setting the election aside.
In coming to this conclusion I note also that the
Respondent's handbills circulated before the election
emphasized the fact that the elections were to be by secret
ballot and that regardless of what choice the employees
may have made with regard to signing cards, they could
vote in secret in whatever manner they desired and that no
SMITH INDUSTRIES 301
one could affect their position with the Company because
of the manner in which they voted.10
D The Refusal To Bargain
The Respondent admits, and I find, that the
Respondent refused to bargain with the Union herein in
order to test the validity of the Union's certification as
representative of Respondent's employees in the
appropriate unit I have heretofore found that there is no
merit in the Respondent's objections to the election and
therefore find that the certification of the Union by the
Board was proper in the first instance Accordingly, I find
that no valid defense has been raised by the Respondent
to the complaint alleging that it unlawfully refused to
honor the Union's certificate by recognizing and
bargaining collectively with it pursuant to its request I
therefore find that on and since September 12, 1966, the
date of the Union's request to bargain, the Respondent
has violated Section 8(a)(5) and (1) of the Act.
III THE LFI ECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section If,
above, occurring in connection with the operations of the
Respondent have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
IV THL REMEDY
Having found the Respondent engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act,
I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
'0i have taken into consideration the fact that in the case of Smith
Industries , Inc , 164 NLRB No 77, the Trial Examiner did not credit the
testimony of former employee Di Pasquale denying that Di Pasquale had
made threats to employees that they would lose their jobs if they did not
join the Union However , the only employee who testified in the instant
proceeding as to threats by Di Pasquale was Shedrick Little whose
testimony , for reasons heretofore set forth , I have not accepted
policies of the Act. It has been found that the Respondent
has refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit herein It will therefore be recommended
that the Respondent bargain collectively upon request with
the Union as the exclusive bargaining representative of
these employees and, if an understanding is reached,
embody such understanding in a signed agreement
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following.
CONCLUSIONS OF LAW
1. Smith Industries, Inc , is an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act
3. On April 7, 1966, and at all times thereafter, the
Union was and now is the representative of a majority of
Respondent's employees for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act
in the appropriate unit described in the following
paragraph
4. All production and maintenance employees,
employed by the Respondent at its Houston, Texas, plant,
composed of the Tysco Division, Fastener Division,
Galvanizing Division, and Special Coating Division,
excluding all office clerical employees, guards, watchmen
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
5 By refusing on and after September 12, 1966, to
bargain collectively with the Union as the exclusive
representative of all its employees in the above-described
unit, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act
6. The aforesaid- unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]