Sonicraft, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 407 (N.L.R.B. 1985)

SONICRAFT,- INC 407
Sonicraft, Inc. and Warehouse , Mail Order , Office,
Technical and Professional Employees Union,
Local 743, International Brotherhood - of Team-
sters , Chauffeurs, Warehousemen and Helpers
of America . Case 13-CA-22448
,24 September 1985.
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 8 July 1983 the Board issued a Decision and
Order in this proceeding finding that the Respond-
ent, Sonicraft, Inc., had violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with
Warehouse, Mail Order, Office, Technical and Pro-
fessional Employees Union, Local 743, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America.' In that deci-
sion , the Board granted the 'General Counsel's
Motion for Summary Judgment, finding that the
Union was duly certified in Case 13-RC-15881 in a
unit of production, maintenance, and warehouse
employees. In the latter proceeding, the Board had
adopted the Regional Director's findings and rec-
ommendations overruling the Respondent's objec-
tions to conduct affecting the results of the 11 De-
cember 1981 election.
On 23 July 1983 the Respondent filed a petition
for review of the Board's Order in the United
States Court of Appeals for the Seventh Circuit,
and on 1 September 1983 the Board filed a cross-
application for enforcement of its Order. Thereaf-
ter, on 20 November 1983, the Board filed a
motion for leave to withdraw its application for en-
forcement, which the court granted on 4 January
1984. The Respondent subsequently requested the
court to stay consideration of its petition for
review pending resolution of the case before the
Board.
On 18 January 1984 the Charging Party filed a
"Motion for Immediate Remand and Expedited
Consideration," in which it requested a hearing on
the objections raised by the Respondent in Case
13-RC--15881. On 30 January 1984 the Board re-
manded the proceeding to Administrative Law
Judge Claude R. Wolfe on the issues raised in the
Respondent's Objections 4, 5, and 6 filed in Case
13-RC-15881. On 11, 25, and 26 June 1984 the
judge held a hearing on these objections.
1 266 NLRB ' No 189 ( 1983) (not reported in Board volumes ) Chair-
man Dotson , who did not participate in the Board's decision certifying
the Union , indicated that he did not necessarily agree with the Board's
certification order
On 16 November 1984 the -administrative law
judge issued the attached supplemental decision.
The Charging Party filed limited exceptions ' and a
supporting brief, and the Respondent filed a brief
in support of the judge's decision, cross-exceptions
and a supporting brief, and a brief in opposition to
the Charging Party's - limited exceptions. The
Charging Party filed an answering brief to the Re-
spondent's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. '
The Board has considered the decision and the
record in light of the exceptions and briefs and has
adopted the findings2 and recommendations. with
respect to Objection 4,3 and finds, upon reconsider-
ation, that -the election must be set aside.
ORDER
It is ordered that the Decision and Certification
of Representative in Case 13-RC-15881 be vacat-
ed.
IT IS FURTHER ORDERED that the complaint in
Case 13-CA-22448 be dismissed.
IT IS FURTHER ORDERED that Case 13-RC-15881
be remanded to the Regional Director for Region
13 for appropriate action consistent with this deci-
sion, including the direction of a new election if
desired by the Petitioner at such time as the Re-
gional Director deems the circumstances permit a
free choice on the issue of representation.4
2 The Charging Party and the Respondent have excepted to some of
the judge's credibility findings The Board 's established policy is not to
overrule an administrative law-judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
3 Because we adopt the judge's decision sustaining the Respondent's
Objection 4, we find it unnecessary to pass on the merits of the Respond-
ent's other objections
4 We note that on 14 February 1984 Administrative Law Judge Robert
A Giannasi issued a decision finding that the Respondent has committed
various unfair labor practices before and following the election in this
proceeding On 27 March 1985 the Board issued an Order remanding that
unfair labor practice proceeding to Judge Giannasi for further consider-
ation consistent with Ducane Heating Corp, 273 NLRB 1389 (1985) The
case is presently Before Judge Giannasi
Any W. Eggertson, Esq., and Thomas Nixon, Esq., counsel
for the General Counsel.
Gerard C. Smetana, Esq., counsel for the Respondent.
Margo R. Newman, Esq., counsel for the Union.
SUPPLEMENTAL DECISION -
CLAUDE R. - WOLFE, Administrative Law Judge. On
July 8, 1983, the Board issued a Decision and Order' in
i 266 NLRB No 189 (not reported in Board volumes)
276 NLRB No. 44
408 DECISIONS OF NATIONAL- LABOR -RELATIONS BOARD
this proceeding finding Respondent, Sonicraft,^ Inc., had
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain with Warehouse, Mail Order, Office, Technical
and Professional Employees Union, Local 743, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (the Union) in an ap-
propriate unite after a Decision and Certification of Rep-
resentative issued by the Board on July 16, 1982,3
wherein the Board adopted the Regional Director's find-
ings and recommendations overruling Respondent's ob-
jections to conduct affecting the results of the election
held on December 11, 1981, in Case 13-RC-15881, and
issued a Certification of Representative to the Union
covering a unit of Respondent's production, mainte-
nance, and warehouse employees. On July 23, 1983, Re-
spondent filed a petition for review of the Board's Order
with the United States Court of Appeals for the Seventh
Circuit. On September 1, 1983, the Board filed a cross-
application for enforcement. Thereafter, on November
20, 1983, the Board filed a motion for leave to withdraw
its application for enforcement. By Order dated January
4, 1984, the court granted the Board's motion. In-re-
sponse to the court's order, Respondent requested the
court to stay consideration of its petition for review filed
on November 14, 1983, pending resolution of the case
before the Board.
On January 18, 1984, Charging Party filed a.motion
for immediate remand and expedited consideration,
moving the Board to issue an order remanding this case
for hearing on the Employer's election objections raised
in Case 13-RC-15881. The Board then, on January 30,
1984, remanded this proceeding for hearing before an ad-
ministrative law judge on the issues by the Employer's
Objections 4, 5, and 6 filed in Case 13-RC-15881. The
hearing so ordered was conducted by me at Chicago, Il-
linois, on June 11, 25, and 26 and July 16 and 17, 1984.
All parties appeared at the hearing, were represented
by counsel, and were afforded full opportunity to intro-
duce oral and documentary evidence relevant to the ma-
terial issues . On the entire record4 and my observation of
the demeanor of the witnesses, and after considering the
briefs -of the parties,- I make the following findings and
recommendations. -
Respondent's objections before me for hearing read as
follows: .
4. The Petitioner, its agents and representatives
improperly induced' employees to support the Peti-
tioner by violating the Stipulation for Certification
Upon Consent Election by utilizing more than the
agreed upon number of observers without the con-
sent or knowledge of the Employer, and with the
2 The appropriate unit is
All full-time and regular part-tune production, maintenance and
warehouse employees employed at the Employer 's facilities at 8859
- South Greenwood and 9501 South Dorchester Avenue, Chicago, Il-
linois, excluding office clericals , engineers , draftsmen , technicians,
guards and supervisors as defined in the Act
s Not reported in Board volumes. - -
• On August 14, 1984 , 1 issued a four-page order to correct the record
with leave to the parties to object or except to the order by August 31,
1984 Neither did so Accordingly , the record is corrected in the 106 in-
stances the order indicates -
acquiescence of the Board. agent conducting the
election.
5. The Petitioner, its agent and representatives
further improperly induced and/or threatened em-
ployees to support the Petitioner or vote for the Pe-
titioner and/or to refrain from visibly opposing the
Petitioner or vote against it, all of which prevented
the holding of a fair secret ballot election.
6. By these and other acts the Petitioner, by and
through its agents, representatives or other persons,
interfered with the holding of a free and fair elec-
tion.
Objection 4 -
The Stipulation for Certification Upon Consent Elec-
tion (stipulation) in Case 13-RC-15881 was entered into
by the parties and approved by the Regional-Director on
October 22, 1981. It contains the following paragraph:
4. OBSERVERS.-Each party hereto will be al-
lowed to station an equal number -of authorized ob-
servers, selected from among the- nonsupervisory
employees of the Employer, at the polling places
during the election to assist in its conduct, to chal-
lenge the eligibility of voters; and to verify the
tally.
The stipulation further recites that the polling place at
Respondent's 95th Street location would be open from
1:30 to 1:45 p.m. on December 11, 1981, and the one at
Respondent's Greenwood location (88th Street location)
would be opened from 2:30 to 3:30 p.m.
The Union had three observers at the 95th Street poll.
Respondent had one. It is the disparity in observers that
gave rise to Objection, 4, with Respondent contending
the 3-to-1 ratio in election observers at 95th Street violat-
ed the agreement of the parties and was improperly con=
doned by the Board agent conducting the election. There
is, however, disagreement between the parties as to what
the agreement on observers in fact was. Bettye Kitch,
Respondent's counsel at the time of the election, testified,
to an oral agreement on observers made at the October
22 meeting when the stipulation was arrived at. Kitch's
testimony in this regard is supported by David Radelet
who was also acting as a company counsel at the -time;
William C. Robinson, Respondent's personnel administra-
tor; and Barbara Birthright, Respondent's secretary -treas- -
urer.
Kitch's testimony and that of the other three- named
above is that the parties specifically agreed on. October
22 that the Union and Respondent could each have one
observer at 95th Street and two at 88th Street. This-ver-
sion is contested by Roy Blake, the Union's business rep-
resentative, who was also present at the meeting and
denies the one and two observer agreement claimed by
Respondent' s witnesses . Blake contends that he told
Board Agent Grinage that he wanted two employees
from 88th Street and one from 95th Street, with all three
to be utilized as the Union saw fit, and that Grinage gave
him permission to use all three at the same time. Blake's
notes taken at the October 22 conference are on one
yellow, legal-size page which Blake avers contains all-the
SONICRAFT, INC. 409
agreed-upon details of the election except those pertain-
ing to . observers. Blake claims that the references` to
numbers of observers in his notes reflect the requests of
the parties rather than agreement . About two-thirds of
the way down the page the notes state "3-Observers."
Three lines later, after intervening notes on other elec-
tion details, appears-the following: 2-Greenwood 1-Dor-
chester.
Greenwood is the 88th Street plant and Dorchester
the 95th. Finally, on the fourth and fifth lines from the
bottom of the page appears the following: "2-Observers
for Greenwood 1-Observer for Dorchester." Last, at the
very end of the page is the statement: "Union requested
the use of 3-Observers at both locations." If, as Blake as-
serts, his notes of the October 22 meeting reflect every-
thing agreed to by the parties except for the references
to 'observers, one must wonder why these references
were included at all and why they were repeated along
with other admittedly agreed-upon details . Moreover, it
is not entirely improbable but the probability is slight in
my view,- assuming Blake took notes in an orderly pro-
gression from top to bottom of the page, that the very
last line would expressly, in -a precise sentence quite
unlike the preceding short notes, recite the Union's re-
quest for three, observers at both locations without also
noting the response to that request. Both Kitch and Ra-
delet' deny there was any. discussion of three observers
for each party to use as they wished.
Board Agent Grinage sent the parties a letter dated
October 23, 1981, purporting to set forth agreements of'
the- parties. The first item -reads: "NUMBER OF OB-
SERVERS FOR EACH PARTY (2) Petitioner (1) Em-
ployer." Kitch testified that she received the letter and
called Grinage who agreed with her that the letter was
wrong and there would be two observers at 88th Street
and one at 95th Street for each party. Blaketestified'that
he also called Grinage and said the letter was wrong'be-
cause they had agreed on three observers. To which
Grinage replied Blake should not worry because Grinage
would take care of it. Sometime after the conversations
with Grinage but before the preelection conference on
December 11,5 the parties agreed that each would fur-
nish an additional employee to notify employees at the
88th Street plant when it was time for them to vote. The
function of a releaser is to notify employees it is time for
them to vote if they wish to do so. This is usually ac-
complished by the releasers carrying signs which state it
is time to vote6 into working areas and displaying them
to the employees. This requires no conversation between
releasers and voters. In short, a releaser is nothing more
than an election observer whose duty is to alert employ-
ees that the polls are open for them to vote if they wish
to do so.
There was a preelection conference at the 95th Street
polling area immediately before the polls opened on De-
cember 11. The parties' version of what transpired differ
5 It is rather obvious that the agreement to have employee releasers
was reached before the preelection meeting because the employees desig-
nated by the parties to so act were in attendance at that meeting and had
been earlier notified of their selection
6 The signs are prepared and furnished by the Board without assistance
of the parties
sharply. Blake avers that Kitch at that time asked him
why the Union had three observers present. He says that
his reply to Kitch was that there-had been an agreement
on three observers and he could use them any way he
saw fit as could the Employer. Blake continues that he
turned to Board Agent Grinage, asked if this was cor-
rect, and was told by Grinage that it was. Blake says
that Kitch said no more, but then released two of the
Company's observers. According to Blake the only dis-
cussion with Kitch on December 11 regarding the
number of 'observers took place at_ this preelection con-
ference. Blake kept all three union observers and testifies
he told one, Ernest Barlow, to act as a releaser at both
locations. Barlow did so. There was no releaser acting
for Respondent at the 95th Street election, nor was there
any agreement to have a releaser at that location.
Kitch and Radelet agree that during the preelection
conference the agreement on observers was briefly dis-
cussed by the parties and the Board agent and reiterated
as an arrangement whereby .each party would have two
observers at 88th Street, one at 95th Street, and a releas-
er at 88th Street. Both deny' that Blake said each party
could have three observers to use as they saw fit.
Jamie Moore, Pearlie Miles, and Purcellyn Jackson,
the Employer's election observers, and Yolanda Shelton,
the Employer' s assistant personnel administrator who
was present at the preelection conference, recall no dis-
cussion about :the number of election observers during
that conference. Marion Sherron, Lula Armstrong, and
Ernest Barlow, the Union's election observers, support
Blake's testimony about his conversation with Kitch' at
the preelection meeting. At the conclusion- of this meet-
ing the company lawyers and officials left as did two of
the Company's observers. Blake also left, but three union
observers remained.
The election at 95th Street commenced with Pearlie
Miles the only observer for the Company and Sherron,
Armstrong, and Barlow as union observers, with Barlow
going through the workplace notifying the employees
the polls were open. When the polls closed. at this loca-
tion, the four observers present signed the Certification
on Conduct of Election for that location.' With the clos-
ing of the polls- the .company lawyers and Blake re-
turned . What happened next is again the subject of con-
flicting testimony.
Kitch testified that when she observed the three union
observers she asked why they were all there when there
was only supposed to be one union observer. Blake said
nothing. Board Agent Grinage replied, according to
Kitch, that it was all right and no big deal. Radelet testi-
fied that when Kitch protested the number of observers
present during voting was not as previously agreed,
Grinage made a calming gesture with his hands and said
something to the effect it was all right and do not worry
about it. Yolanda Shelton's testimony is in accord with
that of Kitch and Radelet. Moore, Miles, and Jackson
agree that Kitch protested the observer ratio after she
entered the polls. Jackson notes that Grinage did, wave
his hand, but neither. she, Moore, nor Miles heard any re-
sponse to Kitch's protest.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blake testified that Kitch made no such protest at the
end of the polling period as she claims she did. Ernest
Barlow, Lula Armstrong, and Marion Sherron testified
that they did not recall if she did or not.
(1) Blake's explanation of his October 22 note is un-
convincing. (2) It is extremely unlikely that a Board
agent charged with conducting the election would give
the parties unfettered discretion to utilize their observers
as they saw fit. (3) There was no reason for. Kitch to
protest the presence of three union observers at the pree-
lection conference on December 11 because the Employ-
er also had their three present for preelection instruc-
tions (4) It,is not likely that the Employer's entourage
would have included two of its observers as it left the
preelection conference if ' the Employer knew or had
reason to believe its remaining observer was to be out-
numbered three to one by the Union's observers. (5)
There was no agreement io use a releaser at 95th Street,
nor does the evidence support any finding the Employer
knew or even suspected the Union would have a releaser
at that location. (6) The failures of Barlow, Armstrong,
and Sherron to recall whether or not Kitch made a pro-
test at the end of the polling period are not impressive
because the same witnesses purport to recall -what hap-
pened at the preelection conference on the same date, at
the same place, and within minutes of the events they do
not recall. For these reasons and the further reason that
the Employer's version of events is more believable, I
conclude and find the parties had -an agreement there
would be one observer each at 95th Street, two each at
88th Street, and one releaser each at 88th Street. There
was no agreement for releasing at 95th Street, no agree-
ment that each party could utilize three observers how-
ever they wished, and no knowledge by,the Employer of
the Union's intent to utilize or actual utilization of three
observers, including a releaser, at 95th Street until after
those ' polls closed and Kitch came in and protested the
disparity in observer numbers.
The issues of imbalance in the number of observers
and noncompliance with-the terms of a stipulation have
been dealt with in Board and court decisions. In 1956,
the Board, in Breman Steel Co.,7 held that a stipulation
was binding on the parties thereto, that its provision on
observers was a material term of the agreement, and that
the use of observers is a right. Fourteen years later, in
Westinghouse Appliance Sales Co.,8 the Board made the
following finding: -
the mere fact that the Employer had only one
observer available to it at the election while the Pe-
titioners, had two is not sufficient grounds for set-
ting aside the election. We find that this imbalance
in the number of observers did not create the im-
pression that the Board favored the Petitioners over
the Employer, or otherwise prejudice the election.
Furthermore, we note that the Board agent specifi-
cally advised the Employer of its right to an equal
number of observers which is entirely consistent
with the provision in the Stipulation for Certifica-
tion that each party would be allowed an equal
number-of observers. Last, to the extent that it may
have constituted a variation from what the Employ-
er alleges was a prior oral understanding that only
one observer represents each party, we find that the
variation was immaterial and in no way compro-
mised the fairness of the election.
The Board held in 1977 in Grant's Home Furnishings9
that noncompliance with the terms of a stipulation is to
be judged on the basis of whether the -breach was preju-
dicial or sufficiently material to warrant setting aside an
election. In 1980, the United States Court of Appeals for
the Ninth Circuit denied the Board's application for en-
forcement in Summa10 and set aside an election conduct-
ed pursuant to a stipulation because the Board agent con-
ducting the election permitted the union to use an addi-
tional observer at the first of two voting sessions without
consulting Summa's observers. The court explained its
decision' i as follows in-pertinent part:
We agree with the current position of the Board
. . . an election will not be set aside for every
breach of an election agreement. Rather, election
results should_ be overturned only if the breach is
material or prejudicial, in the sense that the conduct
causing the breach significantly impairs the fairness
of the election process. .. .
We find that the stipulation providing for an
equal number of observers is material to the election
process. The language of the stipulation itself indi-
cates that the parties intended to rely upon their ob-
servers to carry out the important functions of chal-
lenging voters and generally monitoring the election
process. Each party reasonably desired to prevent
the other from enjoying a relative advantage in this
function. Moreover . . . there is a significant risk
that an imbalance in the number of observers,-with
the acquiescence of the Board agent, could create
an impression -of predominance on the part of the
Union and partiality on the part of the Board.
. . . We think that a party to -a consent election
. .. has a right through pre-election contract to
guard against misconduct material to. the election
process.
Summa is entitled to insist- that the Board and all
parties adhere to provisions of the election stipula-
tion that are designed to ensure a fair election. We
will set aside an election for a material breach of
such a provision, without requiring a showing of
actual prejudice.
The administrative law judge in Herider-Farms, 261
NLRB 762 (1982), where -the' Board agent allowed the
employer to have an extra observer over-the union's ob-
jection, overruled an objection to this conduct and dis-
tinguishes Herider from Summa. Herdda has no preceden-
9 229 NLRB 1305, 1306 (1977)
7 115 NLRB 247 (1956) 10 Summa Corp v. NLRB, 625 F.2d 293 (9th Cir 1980).
8 182 NLRB 481 fn 1 (9th Cir 1970). 11 625 F 2d at 295
SONICRAFT, INC.' 411
tial value because the Board expressly stated it was pro
forma adopting the judge's recommendation to overrule
because no exceptions to the judge's decision on this
point had been filed. -
Finally, the Board in March 1984 adopted the hearing
officer's report in overruling objections in Best Products
Co., 269 NLRB 578 fn. 2 (1984), noting:--
The parties' stipulation [pre-printed NLRB form]
provided that ``[e]ach party hereto will be allowed
to station an equal number of authorized observers.
During the preelection conference before
the first voting session, the Petitioner requested that
the ' number of observers be increased to two per
party on the grounds that an additional observer
was necessary to enable the Petitioner to identify all
the voters. The Board agent granted the request,
and requested the Employer to provide an equal
number of observers . The Employer declined for
several reasons . In agreement with the hearing offi-
cer, we find that the instant facts are clearly distin-
guishable from those in Summa Corp v. NLRB, 625
F.2d 293 (9th Cir. 1980), where the Board agent al-
lowed the union an additional observer without first
notifying the employer.
Here, the question of the number of observers
arose at .the preelection conference, and the Em-
ployer had sufficient time (15 to 30 minutes before
the first session, and several hours before the second
session) in which to secure additional observers if
he so chose. The,. Employer did not even attempt to
do so. Furthermore, the parties' stipulation did not
specify the number of observers, but only provided
that both parties; would have an equal number. The
.Board agent acted within her discertion in allowing
each party two observers. Contrary to his ' col-
leagues, Member Hunter finds that the parties had
an agreement that each would have one observer,
and that the Board agent breached the agreement.
Member Hunter finds, however, that the Employer
has failed to show that it was prejudiced or that the
presence of the extra observer had any impact on
the election or that there was any material breach
under the circumstances.
The rule followed by both the Board and the court
seems to be that' a mere imbalance in observers is a
breach of the stipulation which must be examined in con-
text with the circumstances in each case to determine if
the breach was prejudicial or material enough to require
the setting aside of the election. In the instant case the
use of three observers by the Union at 95th Street had to
have been with the acquiescence or specific permission
of the Board agent who was present during the election.
If this were not so the Board agent would not have per-
mitted it. The 3-to-1 ratio of observers was a violation of
a material term of the agreement. The Employer, unlike
those in Westinghouse Appliance, supra, and Best Products,
• supra, was given no notice there would be such an im-
balance nor was it given an opportunity to furnish more
,observers. Moreover, the Union was permitted to use
Barlow as • a releaser at 95th Street without any prior
notice to or agreement with the Employer . Nine of the
.ten eligible voters at 95th Street voted . The Union won
the election by a 45-to-35 margin. A 'shift- of five votes
from the Union to an against ' vote would have produced
a tie, which means 'the Union would have lost. I am per-
suaded that the use of Barlow as the sole releaser at 95th
Street and the two to one imbalance in observers at the
polls, all without notice to or permission of the Employ-
er, might well have created an' impression among the
electorate that the Board was partial to the Union, and
that the Union was responsible for running the election.
The existence of such an impression is inimical to funda-
mental fairness in election proceedings and is sufficient,
particularly in a case such as this where the outcome is
determined by so few votes , to warrant setting aside an
election . Accordingly , Objection 4 is sustained.
The Employer raises two other matters which might
more exactly fit under . Objection 6 but will be here con-
sidered because they are directly related to the actual
conduct 'of' the election . The first contention is that
Marion Sherron , an election observer for the Union, was
outside the election room talking with " prospective voters
while - balloting was in progress . The primary evidence
proffered in support of this contention is the testimony of
Jerome ' Pogue. When called by_ the Employer, he first
testified that on December 1.1, 1981, just before the poll-
ing commenced at 88th Street , he heard Marion Sherron
tell another employee in the cafeteria that women on the
south side of the production line would get their "asses
kicked" if they did not vote , for the Union. He added
that she also said something about "they would pay to
vote for the union." He then testified, still on direct ex-
amination:
After that I heard that the women on the south side
,of the line,'some of them, were paid to vote; and if
they hadn't voted for them, they would, you know,
get beat up or what have you.
In an affidavit given to a Board agent on January 14,
1982, Pogue stated: •
,On the day of the election, right after the votes
"were counted, 'I overheard Marion Sherron telling
employees Estella Anderson and Bernie Wells, that
if some of the ladies didn't vote yes for the Union,
that someone was going_to kick their asses. Marion
mentioned the name of a man, however, I did not
hear what name she mentioned . Marion continued
to talk, -however, she talked so softly that I was
unable to hear anything else. This conversation oc-
curred on the assembly line.'From the way Sherron
was talking I assumed that the ladies that she was
referring to had been paid to vote yes for the
Union. I have' no knowledge that they were paid.
When confronted 'with this pretrial statement, Pogue
gradually, in response to questions, reconstructed his tes-
timony to reflect that' he in fact heard Sherron say, "If
they don't vote, they are going to get beat up because
they were paid."
At a later point in cross-examination, Pogue testified
that he heard Sherron say, "Those women on the south
. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line, if they don't vote . for, the . union , they are going to
get -their asses kicked," and that a man, whose name
Pogue did not hear , who paid them would do it.
In a signed statement taken by the Employer , not bear-
ing a jurat or any other indicia that it was a sworn state-
ment , dated December 30, 1981 , Pogue said:
The day of • the election I heard Marion Sherron
telling Estella Anderson and Bernie Wells that if
some ladies , didn ' t vote yes for the Union,- that
(some guy-a name of a man was said but I
couldn ' t hear it) was going to kick their asses. I
couldn 't hear anything else,because they , Were talk-
ing in low voices. -
On redirect examination Pogue claims Sherron made the
statements referred to above on election day before the
votes were counted and before he and others had voted,
but while balloting was going on. In response to ex-
tremely leading questions by Employer's counsel, Pogue
testified that when he signed his January 14, 1982 affida-
vit he "must have -missed " the part relating , that the
Sherron conversation was after the votes were counted,
and that he is-now certain it occurred before the elec-
tion. _
In addition to Pogue 's testimony, employer witness
Karen Adams states that Pogue rushed up to her during
the election , pointed out a lady in the hallway by the
bathrooms , and said that lady had said that if the ladies
on the line did not vote the "proper way" they would
get their "asses kicked." Adams does not know the iden-
tity of the woman pointed out by Pogue.. Adams had
stated in a pretrial affidavit, which she now claims is in-'
correct , that Pogue's conversation with her occurred 5
days after the election.
The simple fact is that Marion Sherron was sitting at a
table in the polling room acting as the Union 's observer
checking off the names of voters as they came in to vote
throughout the voting, and therefore could not have
been lounging in the hall or talking to employees on the
line while balloting was in progress . Moreover, Pogue
was an unbelievable witness who seemed to be willing to
tailor his testimony to comport with whatever suggestive
or leading question was-put to him . The following is a
prime example of his malleability . His December 30,
1981 statement says nothing about any pay. His January
14, -1982 affidavit states he assumed the ladies had been
paid , but he had no knowledge of any such payment.
Before me , he first testified Sherron said something about
"they" would pay to vote. He then alters his testimony
to "I heard .. . the women .. were paid to vote." He
next testified that Sherron definitely said "they were
paid ." Later, he expanded on this to state he heard Sher-
ron say the man who paid the ladies would do the kick-
ing. It was truly remarkable how Pogue 's recollections
improved, and- continue to improve , since December 30,
1981, only 19 days after the alleged conversation he now
so vividly recalls . This man is not credible on demeanor
grounds as well as grounds . of prior inconsistent state-
ments, internal inconsistency of his testimony, and the
manufacture obvious from a bare reading of his testimo-
ny. Adams ' testimony is of little value because what
Pogue told her was hearsay , she does not even know
who the woman pointed out was, and because she has
given a prior inconsistent statement that Pogue talked to
her 5 days after the election . It. is worthy of note that
Adams recites , in her January 11, 1982 affidavit given to
the Board , that Pogue told her Sherron had said women
would get their "asses kicked" if they did not vote like
they were supposed to, but only after she asked what
this meant to him did Pogue say it meant they had been
paid to vote the right way because they would not go on
promises from the Union. Thus, according to Adams,
Pogue was but giving an opinion when he concluded
employees - had been paid to vote a certain • way and, if
her recollection is accurate , what he reported is contrary
to-his final testimony on the matter.
The .Employer 's first contention is rejected for the
reason that the evidence in support thereof is deficient in
several respects as indicated above , and for the further
reasons that Marion Sherron 's denial of any such conver-
sation ' with any employees is credited , and there is no
evidence , other than the Employer 's attenuated conjec-
ture based on largely ephemeral evidence , that anybody
was paid to vote for or against the Union.
The other matter the Employer refers to is the possi-
bility that observers physically handled ballots during the
election. Janie Moore and Purcellyn Jackson, both of
whom were Employer observers at the 88th Street polls,
claim to have passed out ballots to voters. It is difficult
to see how this, if it happened, could have prejudiced
the election against the Employer. The other three wit-
neses speaking to this topic , union observers Sherron,
Armstrong , and Barlow , agree that no observer passed
out ballots . Armstrong and Barlow specifically recall the
Board agent 's instructions that they should not touch the
ballots . There were no significant - differences in demean-
or among these five witnesses . Standing alone their op-
posing testimony is in equipoise , neither outweighing the
other . The Employer points out ,. however, that the
Board 's casehandling manual, which is an internal guide
rather than a document with the force • of-law , instructs
at Section 11306 that before, during, and after an elec-
tion , no one should be permitted to handle any ballot
except a Board agent and the individual voting the
ballot . It seems to me that a Board agent may reasonably
be expected to follow written instructions far more often
than not . That being the case, and the Employer's evi-
dence being balanced by opposing evidence, I conclude
the Employer has not in this instance carried its burden
of proof. This failure of proof and the probabilities in the
circumstances Warrant a conclusion , which I make, that
the Employer 's objection , if it . be an objection, to em-
ployees handling the ballots must be overruled.
Objections 5 and 6
In support of these objections the Employer argues
that the Union interfered with the election by means of
"payoffs" to employees , and that Frank Nissan, Ernest
Barlow , and Marion Sherron made objectionable threats
and promises.
The Employer states its position on the payoff allega-
tion to be that the Union attempted to buy votes by
SONICRAFT, INC.
paying off employees in at least four distinct ways: (1)
paying certain employees to organize and gather support
for the Union; (2). paying certain employees to vote for
the Union; (3) providing free meals and liquor to em-
ployees; and (4) financing a trip for at least one employ-
ee to Washington, D.C.
To support these contentions, the Employer- relies on
(a) the testimony of Pogue about Sherron's alleged re-
marks to other women on election day; (b) the Union's
conduct in furnishing employees with free food and
drink at union meetings conceifning organizing of em-
ployees at Sonicraft; and (c) employee testimony with re-
spect to statements made by Frank Nissan. The testimo-
ny of Pogue with respect to Sherron's conduct has been
found lacking in credence and therefore does not support
the Employer's contentions. With respect to (b), it is true
the Union provided free food and drink for employees at
union meetings , some of which took place before the pe-
tition for election was filed,12 held in the Queen of the
Sea and Woodlawn Garden restaurants and a private
home. It is, also true, however, that the Board has long
held such conduct to be legitimate' campaigning.' 3 There
is no evidence that the food and drink were conditioned
on the recipients signing union authorization cards or
voting for the Union, or were anything other than a per-
missible device to encourage meeting attendance and
generate a kindly feeling toward the Union.
In addition to the alleged comments of Sherron which
I have found were not made, testimony was adduced re-
garding statements by Ernest Barlow, Frank Nissan, Vir-
ginia Vasquez, and Darrel Smith which arguably fall
within the scope of the Employer's objections.
Barlow 's Statements
Ernest Barlow , Janie Moore , Pearlie Miles , and Va-
detta Brown testified regarding Barlow 's comments to
the women either on election day or a few days before.
There is no agreement among the four on the date. The
recitation of what transpired is a distillation of the com-
posite testimony of all four into what I -believe to be
most probable given the comparative certainty and testi-
monial demeanor of the witnesses . Barlow asked Brown
how she would vote in the election . She declined to tell
him. Barlow said that he would be the union steward
after the election ; the Company would be Barlowcraft
rather than Sonicraft , and the women would be working
for him . He also told Brown that she was a chicken if
she did not vote for the Union, and then walked away,
flapping his arms like a chicken. Janie Moore testified
that , because Barlow specifically named four women
who would be working for him but did not mention her
name , she concluded she would have no job and was
frightened . Anything is possible , but Moore's claim she
was frightened by Barlow 's comments strikes me as ex-
aggeration . The Employer's assertion that "It is clear
that Barlow had employees believing he would be run-
ning personnel matters through the collective -bargaining
agreement at the . Company after the election and that
12 The petition for election was filed on October 7, 1981
is See, eg., L. M. Berry & Co, 266 NLRB 47, 51 (1983), Northern
States Beef, 226 NLRB 365, 376 (1976)
413
Company President Jerry Jones -would accordingly
march to the beat of Barlow's drum," is novel but unper-
suasive . All this incident really amounts to is display by
Barlow of insouciant braggadocio (his statements) and in-'
nocent horseplay (his chicken imitation), which I cannot
help but believe were recognized as such by his fellow
employees.
On another occasion, date unknown, Barlow told
Brown'she should vote for the Union because-she would
then have pregancy benefits not now available to her.
This is nothing more than an unobjectionable statement
of opinion.
Conduct of Frank Nissan -
Jerome Pogue testified that Nissan told him about 3
weeks before the election that he was a. union organizer
who would get a $2100 check for his services when the
Union came in. Pogue, who has been'found lacking in
credibility in another instance previously recited, places
this incident at 10:30 a.m., and explains he had earlier
told a -Board agent it took place in the afternoon because
10:30 a:m. is midafternoon to him. This explanation, is in-
credible; but the substance of his testimony is uncontra-
dicted and credited.14
A week or two before the election, Nissan told Janie
Moore the Union had paid for his trip' to join the Soli-
darity March in Washington, D.C., from which he had
just returned. He also told her she would have a guaran-
teed job and it raise if the Union got in.
Karen Adams states that Nissan, about the latter part
of September 1981, had a general conversation with her
wherein he explained, in response to her questions, some
benefits of union representation. When she asked if em-
ployees could come to work in the event of a strike, he
said they could, but it would not be healthy. She asked
what he meant. He said people would vandalize her car
and throw things at her. She asked who would do this.
Nissan said. he would not do it, but employees would be-
cause they would consider her a scab.
Within the same month or about a month later, ac-
cording to Adams, she heard Nissan tell other employees
"he was not worried about Jerry Jones firing him, who
cared about him- organizing because when he finished
this job, here he has a .check waiting for him." Nissan
mentioned $2100- or $2500 as the amount of the check,
and said he had another job waiting.
The Union denies Nissan is or was its agent or was
paid any money by the Union. Apart from Nissan's state-
ments to the effect he was being paid $2100 or $2500 for
his organizing services and his trip to Washington, D.C.,
had been paid for by the Union, there, is no evidence he
was a union agent . The Union denies paying for any trip
for Nissan. A search of the Union's expenditure records
revealed no payments of any kind to Nissan or any other
Sonicraft employee. It may be, given the nature of Nis-
san's claims, that employees did regard Nissan to be an
agent of the Union. That does not make him one. State-
ments indicating agency made by the employee who is
the purported agent does not establish the relationship.
14 Nissan did not testify.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firestone Steel Products Co 235 NLRB 548 550 (1978)
Tuf Flex Glass v NLRB 715 F 2d 291 296 (7th Cir
1983) The only evidence proferred or adduced to show
his travel and organizing endeavors were paid for by the
Union and/or show he was a union agent is hearsay un
supported by the slightest modicum of persuasive evi
dence The Employer has not carried its burden of prov
ing that Nissan was a union agent or was paid or re
ceived union funds nor has it established a prima facie
case to that effect
Statements of Darrel Smith
Jerome Pogue testifies to a conversation with Darrel
Smith on an unknown date probably late October 1981
where Smith told him that windows would be broken
and there would be name calling and obscene telephone
calls if the Union knew one was not voting for it Ac
cepting this testimony as accurate inasmuch as Smith did
not testify it reflects nothing more than an expression of
opinion by one employee to another in the absence of
any evidence the speaker is a union agent or possesses
certain knowledge that the predicted events will in fact
occur
Answers of Virginia Vasquez
Pogue also relates a conversation with Virginia Vas
quez t 5 on the assembly line about a month after the elec
tion According to Pogue he had heard that Vasquez had
some problems with vandalism about 10 years before
during a union campaign He therefore asked her if it
were true that union adherents break car windows cut
tires etc She said they do because it had happened to
her 10 years before
At a later point in his testunony Pogue refers to a
sunilar conversation with Vasquez prior to the election
wherein he asked if people did not want to strike would
they have to She answered that they did not but would
probably be faced with trouble at work or as they left
work
Vasquez is neither alleged nor shown to be an agent of
the Union She merely answered questions asked on the
basis of her past experience of which Pogue had some
prior knowledge Her comments after the election are
plainly not objectionable Goodyear Tire & Rubber Co
138 NLRB 453 (1962) and her answers to Pogue s ques
tions before the election assuming they occurred after
the petition for election was filed are unobjectionable
expressions of opinion solicited by the hearer
15 The name may be Valasquez
Conclusions on Objections 5 and 6
The evidence does not support the Employers conten
tions that the Union paid employees to organize and
gather support on its behalf paid employees to vote for
the Union or financed a trip for any employee of Soni
craft The Union did provide free food and drink to em
ployees at their meetings with union representataives
but as I have noted heremabove this conduct was not
objectionable
Turning to the various statements of Sherron Nissan
Barlow Smith and Vasquez their conduct before the
petition for election was filed and after the election was
held may not be found objectionable 16 None of these
employees have been shown to be union agents The
conduct of rank and file employees is accorded less
weight by the Board and courts in considering election
objections than that of the parties to the election 17 and
the Employer has not carried its burden i 8 of showing
any of the conduct of such employees of which it coin
plains either disrupted voting procedure or destroyed the
atmosphere necessary to the exercise of free choice by
the voters Where the conduct in question is not attnb
uted to a party such a showing must be made 119 The
evidence relating to Objections 5 and 6 does not show
that the conduct of employees which is questioned by
the Employer rendered impossible the rational un
coerced selection of a bargaining representative Accord
mgly, I find and conclude Objections 5 and 6 must be
overruled
CONCLUSIONS OF LAW
1 Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
2 The Union is a labor organization within the mean
mg of Section 2(5) of the Act
3 The Employers Objection 4 should be sustained
4 The Employers Objections 5 and 6 are without
merit and should be overruled
5 Respondent Employer has not violated Section
8(a)(5) and (1) as alleged in Case 13-CA-22448 because
the Union s majority status has not been established
[Recommended Order omitted from publication ]
16 Ideal Electric d Mfg Co 134 NLRB 1275 (1961) Goodyear Tire &
Rubber Co 138 NLRB 453 (1962)
17 Six Flags Over Mid America 253 NLRB 11 1 (1980) enfd 638 F 2d
59 (8th Cir 1981) Tuf Flex Glass v NLRB 715 F 2d 291 (7th Ca 1983)
1s It is well established that the objecting party has both the burden of
going forward with the evidence and the ultimate burden of proof See
e g Vitek Electronics 268 NLRB 522 (1984) Boston Insulated Wire &
Cable Systems 703 F 2d 876 (5th Cir 1983)
19 NLRB v Advanced Systems 681 F2d 570 (9th Cir 1982) Emerson
Electric Company v NLRB 649 F 2d 589 (8th Cir 1981) IDAB Inc 269
NLRB 554 (1984)