Uniroyal, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1968

169 N.L.R.B. 918 (N.L.R.B. 1968)

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uniroyal , Inc.' and United Rubber , Cork , Linoleum
and Plastic Workers of America , AFL-CIO. Case
23-CA-2018
February 18,1968
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On December 3, 1965, the National Labor Rela-
tions Board issued a Decision and Order2 in the
above-entitled proceeding, in which it affirmed,
without comment, the Trial Examiner's granting of
the General Counsel's motion for judgment on the
pleadings, adopted his findings that the Respondent
had violated Section 8(a)(5) by refusing to recog-
nize the Union after it was certified by the Board,
and ordered the Respondent to take specific action
to remedy such unfair labor practices. Sub-
sequently, the Respondent filed with the United
States Court of Appeals for the Fifth Circuit its
petition to review and set aside the Board's Order,
and the General Counsel filed an answer to the peti-
tion and a cross-petition for enforcement of the
Order. Thereafter, on February 20, 1967, the court
handed down its decision,3 setting aside the Board's
Order and remanding the case to the Board "to first
conduct a full hearing on Objections 8, 9, 10, 11,
and 12 to the election [conducted on November 6,
1964],' without limiting the evidence by considera-
tions of when discovered or whether previously
available, and thereafter to determine under ap-
propriate rules, regulations and procedures the un-
fair labor practice charge." On April 4, 1967, the
Board issued an Order reopening the record and
directing a hearing before a Trial Examiner for a full
hearing on the said objections, consistent with the
court's remand.
On September 22, 1967, Trial Examiner Morton
D. Friedman issued his attached Decision on Re-
mand in which he recommended dismissal of the
complaint. Thereafter, the Respondent filed limited
exceptions and brief in support of the supplemental
Decision and a supplemental brief, and the General
Counsel and Charging Party filed exceptions to the
Trial Examiner's supplemental Decision, and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the reopened hearing and finds
' The name of the Respondent has been changed from United States
Rubber Company to Uniroyal, Inc.
2 155 NLRB 1298.
a 373 F.2d 602.
Case 23-RC-2307.
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Trial Examiner's supplemental Decision on Re-
mand, the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer only to the extent consistent herewith.
1. The parties disagree as to the issues before
the Trial Examiner for decision, the Respondent
contending that he added an unnecessary factor and
the General Counsel and Union arguing that he ex-
cluded some questions improperly. We find merit in
the exceptions of the General Counsel and the
Union.
The objections to the election concerned alleged
misrepresentations by the Union, which the
Respondent contends precluded an informed choice
by the employees. The usual elements concerning
which inquiry would be made are (1) whether there
was a substantial misrepresentation of fact, (2) at a
time when the other party or parties were prevented
from making an effective reply, and (3) so that the
misrepresentation might reasonably be expected to
have a significant impact on the election.5 In addi-
tion, in evaluating the probable impact, the Board
considers, as one factor, whether the person making
the statement possesses intimate knowledge of the
subject matter so that the employees involved may
be expected to attach added significance to the
assertion.6
The Trial Examiner allowed the introduction of
evidence of all these matters, but in his Decision
states that the court of appeals had decided, and he
was bound by the holding, that the Respondent did
not have adequate time to reply and that the person
making the statement involved had special
knowledge of the facts asserted about the operation
at Pecos, Texas, with which a comparison of driv-
ing requirements was made, tending to inspire
reliance on his statements. The Trial Examiner
therefore determined that only two issues were be-
fore him: (1) Whether or not there was in fact a
misrepresentation,' and (2) if so, whether in fact it
had sufficient impact upon the election to warrant
setting the election aside and vacating the certifica-
tion.
Respondent argued that it was sufficient to
establish that a material misrepresentation of fact
occurred, and that it was superfluous to require in
addition, a showing that such misrepresentation had
significant impact on the election. The question to
be determined is whether "the misrepresentation
... may reasonably be expected to have a significant
impact on the election [emphasis supplied] ,"8 and
it is well settled that in making such a determina-
Hollywood Ceramics Company, Inc., 140 NLRB 221, 224.
s 1d. at fn. 10.
The Trial Examiner was of the view that the court had already decided
that, if it were a misrepresentation, it was material.
" Hollywood Ceramics Company, Inc., supra.
169 NLRB No. 128
UNIROYAL 919
tion , the subjective reaction of employees is im-
material. Accordingly , while agreeing with the Trial
Examiner that possible impact is a question to be
decided , we do not agree with the evidence upon
which he based his finding in this respect and do not
adopt his conclusions in that regard , as more fully
set forth below.
The General Counsel and the Union except, inter
alia, to the failure of the Trial Examiner to make
findings and conclusions on all issues , including
those which he viewed as having been determined
by the court . We agree that the court 's remand for
a "full hearing ... without limiting the evidence..."
and the Board' s Order pursuant thereto contem-
plated a hearing de novo on the specified objections
to the election as if no proceedings had been con-
ducted on the unfair labor practice charge. Further-
more, the Board's Order is specific in affording the
parties an opportunity to litigate all relevant aspects
of the conduct relied on by the Respondent. The
court found that the objections involved issues
which could be determined properly only by a hear-
ing, and that the Board erroneously relied on factual
findings by the Regional Director . If the court had
resolved those same factual issues on the record be-
fore it, the court itself would have engaged in the
very type of determination for which it criticized
the Board . This, together with the breadth of the
court 's remand order, persuades us that the Trial
Examiner was in error. However , as all matters
were fully litigated on the record , and as there is no
substantial dispute as to the facts but only as to the
conclusions to be drawn therefrom , we find it un-
necessary to remand the case to the Trial Examiner
for additional findings.
2. As more fully set forth by the Trial Examiner,
the objections relate to a statement contained in a
handbill circulated by the Union 2 days before the
election . This was written in answer to Respond-
ent's handbill concerning wages, and reads in per-
tinent part as follows:
One thing that the Company failed to mention
is this; That we [at Pecos ] work six days and
the average miles that we drive per day, week
or month is only 350 miles. You average over
500 miles . In other words , you are doing six
day [sic] work in only five and getting paid
only for five.
The comparison was between the earnings of the
Respondent 's employees and the earnings of a unit
of employees represented by the Union at Automo-
tive Proving Grounds, Inc., Pecos, Texas, a con-
siderable distance from Respondent's Laredo, Tex-
as, location.
The Trial Examiner concluded, in the following
sequence, that the comparison contained untruthful
statements concerning (1) the average number of
miles per day driven at Laredo, (2) the average
number of miles driven per day at Pecos, and (3) the
payment of Laredo employees on a 5-day basis for
doing 6 days' work in contrast to Pecos drivers
receiving 5 days' pay for 5 days' work.
As to the Laredo employees, the Trial Examiner
found they drove an average of 365 miles per day,
rather than the 500 stated in the letter. But, this as-
sertion concerns the working conditions of the em-
ployees being organized and relates to a fact of
which they were or should have been fully aware.
In this connection, the record establishes clearly
that each of the drivers made daily reports of his
mileage for the day, and they all knew how many
miles they must complete under each of the tire
testings they were conducting. Finally, Mr. Wil-
liams, Respondent's proving ground manager,
testified clearly that "everybody was talking about
... this one paragraph ... that we all knew was
very untrue." [Emphasis supplied.]
As to Pecos, the letter asserts that the drivers
there average 350 miles a day, whereas Mr. Harper,
the owner and manager of the Pecos proving
ground, testified that they averaged about 375 miles
per vehicle shift.9 However, the miles per vehicle
shift cannot be compared with average miles per
day driven by employees, without some explana-
tion. In contrast, it is undenied that the statement
that Pecos drivers averaged 350 miles per day was
based on information furnished to the Union by the
personnel director at Pecos, and hence this figure
would seem to have some appearance of validity
and not to be a misrepresentation at all. 10
In any event, the Trial Examiner apparently
views the difference between an average of 400
miles per day as substantially and significantly more
than the 350 miles stated by Dominguez, in the
letter. We are constrained to conclude that even if
the 50-mile difference be accepted as fact, such a
difference is clearly not such a misstatement as to
require a new election in the circumstances of this
case. For the Laredo employees were in a position
to know (and apparently did know, according to the
" In the third paragraph of his Concluding Findings, the Trial Examiner
compares the approximate mileages as "per hour" distances , but this is
apparently an inadvertent error, because the letter under consideration
refers only to miles "per day, week or month" and not per hour as the
Trial Examiner says.
10 The Trial Examiner in his Concluding Findings states that because
Dominguez admitted that he drove an average of 400 miles per day at
Pecos and he was an average good employee, therefore "the other drivers
would have driven approximately what Dominguez drove " However, the
conclusion does not necessarily flow from the premise. The Trial Ex-
aminer gives no weight to the fact that the distances driven admittedly
vary depending on the type of car used and the speed of the particular test
being conducted , so that wide variations may occur . For example , one test
attains a speed of only 3 or 4 miles an hour for an average of 18, or 20 miles
a day Furtheremore , it is clear that during the time when Dominguez
averaged 400 miles per day, he drove at night , and this was a period when
night drivers made more mileage than day drivers. Because the Pecos
drivers have a paid lunch period which is part of their 8-hour day while the
Laredo drivers eat lunch on their own time, it is apparent from the record
that the Laredo drivers actually work for a half hour more per day than do
the Pecos drivers.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of Respondent's manager, Mr. Williams)
that their own average mileage per day was not sig-
nificantly different from that of Pecos employees.
The third statement which the Trial Examiner
found to be false was Dominguez' comment that
Respondent's employees did 6 days' work in 5, as
compared with the Pecos drivers. However, since
the Respondent's employees had independent
knowledge of their own daily mileages and hence
could know that their daily average was approxi-
mately the same as the asserted Pecos average, they
could obviously evaluate this comment as inaccu-
rate.
As we have found that the representation as to
conditions at Pecos was not substantially wrong but
in any event was not so different from the condition
of Respondent's employees themselves, so that no
disparagement of Respondent's conditions could
result, and the comparison between the average
miles per day and the length of the work at Pecos
and Laredo was a fact which the employees could
evaluate based on their own information, we con-
clude that there is no basis for finding that the
misrepresentation might reasonably be expected to
have a significant impact on the election. We note,
further, that any misstatement by Dominguez, who
worked at Pecos, in saying that Respondent's em-
ployees at Laredo averaged 500 miles per day, re-
lated to a matter about which he cannot be said to
have had independent knowledge or to speak with
authority. 11
In view of the above, we conclude that the objec-
tions to the election were without merit.12 We there-
fore reaffirm the validity of the Union's certification
and status as the exclusive bargaining representa-
tive of the employees in the appropriate unit.13
3. Since we have found that the Union's certifi-
cation was proper, the Union has been the exclu-
sive representative of the Respondent's employees
for purposes of collective bargaining since January
15, 1965. It is not disputed that beginning March
16, 1965, the Union requested the Respondent to
bargain with it, and since March 16, 1965, the
Respondent has refused to do so. Under these cir-
cumstances, the Respondent, by refusing to bargain
collectively with the Union, upon request, has vio-
lated Section 8(a)(5) and (1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in part
3, above, occurring in connection with its opera-
tions, have a close, intimate, and substantial rela-
tion 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.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices violative of Section 8(a)(5)
and (1) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It has
been found that the Respondent has refused and
still refuses to bargain collectively with the Union
as the exclusive representative of the employees in
the appropriate unit described herein. We shall
order that the Respondent bargain collectively,
upon request, with the Union as the exclusive
representative of these employees and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, the Board
makes the following:
CONCLUSIONS OF LAW
1. Uniroyal, 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 Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All employees employed by the Respondent
at its Uniroyal, Inc., Proving Ground at Laredo,
Texas, including test drivers, driver-mechanics,
mechanics, tire inspectors, photographers, janitors,
maintenance men, and operations clerical em-
ployees, but excluding office clerical employees,
" In view of the conclusion we reach on the facts, it is not necessary to
decide whether any misrepresentation occurred at a time when the
Respondent could not have responded . However, we note that Williams
testified specifically that "Well, I discussed it with just about everybody.
... Within fifteen or twenty minutes, I discussed [the letter] with
probably fifteen different people." It is thus obvious that the Respondent
did, in fact , respond to the assertions of the letter.
12 Contrary to the Respondent 's contention , the opinion in N.L.R.B. v.
Bata Shoe Company, Inc., 377 F.2d 821 (C.A. 4), cert. denied 389 U.S.
456, does not require a different conclusion . The principle there applied is
not that when false statements are made they necessarily constitute an in-
terference with employee free choice, but that when such statements do
interfere with free choice, whether for or against a bargaining representa-
tive, an election should be set aside.
'3 The appropriate unit consists of all employees employed by the
Respondent at its Uniroyal Proving Ground at Laredo, Texas, including
test drivers , mechanics , driver-mechanics , tire inspectors , photographers,
janitors, maintenance men, and operations clerical employees , but exclud-
ing office clerical employees , confidential employees , guards, watchmen,
and supervisors as defined in the Act.
UNIROYAL
confidential employees , guards, watchmen , and su-
pervisors as defined in the Act , constitute a unit ap-
propriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. On January 15, 1965 , and at all times
thereafter , the Union was and now is the represent-
ative of a majority of the Respondent 's employees
in the appropriate unit described above for the pur-
pose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing on and after March 16, 1965, to
bargain collectively with the Union as the exclusive
representative of all its employees in the above-
described appropriate unit , the Respondent has en-
gaged 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Uniroyal, Inc., Laredo, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from refusing to bargain col-
lectively with United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, as the ex-
clusive representative of all its employees in the ap-
propriate unit with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment.
2. Take the following affirmative action which
it is found will effectuate the policies of the Act:
(a) On request, bargain collectively with United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, as the exclusive representa-
tive of the employees in the appropriate unit, and
embody any understanding reached in a signed con-
tract. 9
(b) Post at its facility at Laredo, Texas, copies of
the attached notice marked "Appendix." 14 -Copies
of said notice, to be furnished by the Regional
Director for Region 23, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
921
14 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL bargain collectively, upon request,
with United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, as the
exclusive bargaining representative of all our
employees in the appropriate unit described
below, with respect to rates of pay, wages,
hours of employment, and other terms and con-
ditions of employment and, if an agreement is
reached, embody such understanding in a
signed contract. The appropriate unit is:
All employees employed by us at our
Uniroyal, Inc., Tire Proving Ground at
Laredo, Texas, including test drivers,
driver-mechanics, mechanics, tire inspec-
tors, photographers, janitors, maintenance
men, and operations clerical employees,
but excluding office clerical employees,
confidential employees, guards,
watchmen, and supervisors as defined in
the Act.
UNIROYAL, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk
Avenue, Houston, Texas 77002, Telephone
228-0611, Extension 4721.
TRIAL EXAMINER'S DECISION ON REMAND
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: On October
15, 1964, the Regional Director for Region 23 of the Na-
tional Labor Relations Board issued a Decision and
Direction of Election in Case 23-RC-2307, pursuant to
which a secret ballot election was conducted among the
Respondent's employees in an appropriate unit on
November 6, 1964, in which 97 ballots were cast, of
922 DECISIONS OF NATIONAL
which 55 votes were for the United Rubber, Cork,
Linoleum & Plastic Workers of America, the Charging
Party herein, and referred to herein as the Union, and 42
were against the Union. Thereafter, on November 13,
1964, Uniroyal, Inc.,' Respondent herein, filed timely
"Objections To Election And To Conduct Affecting
Result Of Election." After investigation, the aforesaid
Regional Director issued his Supplemental Decision,
Order and Certification of Representative in which the
Regional Director decided that the Respondent's objec-
tions were without merit and were overruled. On January
25, 1965, the Respondent petitioned the Board for review
of the Regional Director's Supplemental Decision and on
March 1, 1965, the Board issued its Order denying
request for review.
Thereafter, upon a charge filed by the Union on April
5, 1965, the aforesaid Regional Director issued his com-
plaint in the instant proceeding dated April 16, 1965, and
amendments thereto dated April 28 and May 7, 1965, al-
leging that Respondent refused to bargain with the Union
in violation of Section 8(a)(5) and (1) of the Act. Respond-
ent filed a timely answer in which it alleged that the
Union had not been legally or properly designated or
selected by the Respondent's employees and that the cer-
tificate heretofore issued by the Regional Director is in-
valid because, in essence, the objection to conduct affect-
ing the results of the election filed by the Respondent in
the representation case had merit and that, among other
things, the Respondent was entitled to a hearing on the
objections. On January 29, 1965, counsel for the General
Counsel filed a Motion for Judgment on the Pleadings
which motion, upon a Notice to Show Cause issued by a
Trial Examiner of the Board, was answered by the
Respondent which reiterated the allegations of its
Answer to the Complaint. On October 14, 1965, the Trial
Examiner issued his Decision on Motion for Judgment on
the Pleadings in which the Motion was granted and the
Respondent was found to have violated Section 8(a)(5)
and (1) of the Act. On December 3, 1965, the Board is-
sued its Decision and Order,2 affirming, without com-
ment, the findings and recommendations of the Trial Ex-
aminer and adopting as its order the Recommended
Order of the Trial Examiner.
Thereafter, the Respondent filed, with the United
States Court of Appeals for the Fifth Circuit, a petition
for review of the Board's Order, requesting that it be set
aside, and the General Counsel filed an answer and cross
petition to enforce the said Order. On February 20, 1967,
the court handed down its opinion setting aside the
Board's Order3 and remanding the case to the Board for
further proceeding with the following instructions:
To first conduct a full hearing on Objections 8, 9, 10,
11 and 12 to the election, without limiting the
evidence by considerations of when discovered or
whether previously available, and thereafter to deter-
mine under appropriate rules, regulations and
procedures the unfair labor practice charge.
Pursuant to the aforesaid order of remand, the Board,
on April 4, 1967, issued its Order reopening the proceed-
ing and remanding it to the Regional Director for a full
hearing on Objections 8, 9, 10, 11, and 12 before a Trial
Examiner, with instructions that the Trial Examiner shall
prepare and serve on the parties a Supplemental Decision
LABOR RELATIONS BOARD
containing findings of fact and such conclusions of law
and recommendations as the Trial Examiner would deem
appropriate based upon the evidence received pursuant
to the provisions of the said order and the entire record in
the proceeding.
Pursuant to notice issued by the Regional Director, a
hearing was held before me in Laredo, Texas, on May 23
and 24, 1967, in which all parties appeared and were af-
forded full opportunity to present evidence on the subject
matter of the remand, examine and cross-examine wit-
nesses, present oral argument, and file briefs. Briefs were
filed by all parties.
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-2307, 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 ISSUE INVOLVED
The remand ordered by the court of appeals and the
Board involves , as noted above, the merits of Objections
8, 9, 10, 11, and 12 upon which the court has ordered that
a full hearing be held . All of these objections relate to a
single paragraph in a handbill distributed by the Union to
the Respondent's employees within a short time before
the election . The handbill , in the form of a letter to the
employees is addressed to "My fellow men," and signed
by Y. L. Dominguez , as temporary representative of the
Union . That handbill, written in answer to a handbill dis-
tributed by the Respondent concerning wages, contains
a paragraph which reads in pertinent part , as follows:
One more thing that the Company failed to mention
is this; That we work six days and the average miles
that we drive per day, week or month is only 350
miles. You average over 500 miles. In other words,
you are doing six day [sic] work in only five and
getting paid only for five... .
This above quotation makes a comparison with the
earnings of employees at the Pecos, Texas, tire testing
ground of Automotive Proving Grounds , Inc., located
some distance from the Respondent 's premises. Y. L.
Dominguez , in addition to his affiliation with and activi-
ties on behalf of the Union , was and is an employee of the
said Automotive Proving Grounds , Inc. At the time the
letter was written Dominguez was on leave of absence
from his said employer for the purpose of assisting active-
ly in the organization of the Respondent 's employees on
behalf of the Union.
The Respondent contends that the statement recited
above is a material misrepresentation of facts made under
circumstances which warrant setting aside the election
and vacating the certification . Citing N.L.R.B. v. Bata
Shoe Company, Inc., 377 F. 2d 821 (C.A. 4), Respondent
contends that the results of representation elections and
certifications based upon such results will be set aside in
cases where there have been misrepresentations in cam-
paign propaganda when:
1. There has been a material misrepresentation of fact.
' The name of the Respondent has been changed from United States 2 155 NLRB 1298.
Rubber Company to Uniroyal, Inc. 3 373 F.2d 602.
UNIROYAL
2. This misrepresentation comes from a party who had
special knowledge of, or was in an authorized position to
know, the true facts.
3. No other party had sufficient opportunity to correct
the misrepresentation before the election.4
The General Counsel and the Charging Party agree
with the Respondent that the three above set forth condi-
tions will warrant setting aside an election. However,
they each contend that added to this criteria is a fourth
condition which must be found before the Board will set
an election aside. That condition is that the alleged
misrepresentation must have had a significant impact on
the election.
The Board, has held, after acknowledging that in these
cases it must balance the right of employees to an untram-
meled choice in an election, and the right of the parties to
wage a free and vigorous preelection campaign, the rule
with regard to misrepresentation is 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 substan-
tial departure from the truth, at a time which
prevents the party or parties from making an effec-
tive 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 vague-
ly worded and subject to different interpretations will
not suffice to establish such misrepresentation as will
lead us to set the election aside. Such ambiguity, like
extravagant promises, derogatory statement 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 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 as-
sertion. Or, the Board may find that the employees
possess independent knowledge with which to evalu-
ate the statements.5
From the foregoing I conclude that a misrepresenta-
tion, under the Board's interpretation, may be substantial,
i.e., material, without having a significant impact on the
employees and thus on the election. Thus, it would seem
that even assuming the three conditions, which the
Respondent urges as prerequisites to the Board's setting
aside an, election, are found to exist in a set of circum-
stances, nevertheless, unless there is added to those con-
ditions the additional factor that the misrepresentation
has a significant impact, the Board will not interfere with
the election.
Nor' is the Board alone in insisting upon this last condi-
tion for setting aside an election. Indeed, the courts have
4 The Respondent also cites in support of its contention the recently de-
cided case of N L R B. v. Ortronix , Inc, 380 F 2d 737 (C A. 5), in which
the court held that an employer in a somewhat similar situation to the one
above was entitled to a hearing on its objections However , in that case
the court did not make any reference to the standards as recited by the
Respondent in the instant case, confining its discussion to a determination
923
also held that impact must be considered. Thus, the same
court of appeals which considered the Bata Shoe Com-
pany case, relied on by the Respondent, in a more recent
decision6 held:
We conclude that the gross misrepresentation as to
strike benefits paid to the union's members at
another plant in the area and that not one person lost
a thing during a recent strike was material and had a
significant impact on the election.7
Indeed, even in the Bata Shoe Company case the court
spoke in terms of impact and stated:
We are inclined to agree with the Company in its
view of the impact of this language on the Bata em-
ployee, although subsequent language in the leaflet
admittedly injects some ambiguity."
Accordingly, I conclude that the conditions under
which the Board will set aside an election by reason of
misrepresentation on the part of one of the parties to the
preelection campaign are four in number, the three enun-
ciated by the Respondent and the fourth, whether the al-
leged misrepresentation had a significant impact on the
election.
If the instant case were before me without having been
reviewed by the court of appeals, which has already set-
tled the law and some of the facts of the case, I would be
obliged to hold that at the hearing herein the Respondent
would have the burden of proving that each of the four
foregoing conditions existed. At the hearing, the Respond-
ent contended that it had to prove only that there was, in
fact, a misrepresentation in the paragraph of the notice or
letter with which the Objections 8, 9, 10, 11, and 12 are
concerned. The Respondent contended that the court had
already settled that the misrepresentation came from a
party who had special knowledge and was in an authorita-
tive position to know the true facts. The Respondent also
contended that the court of appeals had settled and found
that the Respondent had had insufficient opportunity to
answer and correct the misrepresentation before the elec-
tion. In addition, Respondent argued that the court had
settled that if the misrepresentation, in fact occurred, that
it was a material misrepresentation and that therefore the
only matter that was before me for my decision and
recommendation was whether or not there was, in fact, a
misrepresentation. In other words all that Respondent
had to show was the falsity of the statement made by
Dominguez and the Charging Union.
On the other hand, the General Counsel and the Charg-
ing Party contended that the words of the court in its re-
mand order were that there be a "full hearing" on the ob-
jections and that therefore the entire question as to the
existence of all four of the conditions was litigable before
me. I temporarily ruled at the hearing that I would take
evidence as to the existence or nonexistence of all of the
conditions and as to the entire matter since I had not had
time to give full consideration to the court's decision.
However, I have reconsidered the entire matter and
upon further study of the court of appeals' remand deci-
sion and of the briefs and arguments of the parties, I con-
clude that there is merit in the Respondent's contentions.
Thus, I find that in its decision the court of appeals stated
that a question of fact requiring a heanng existed.
5 Hollywood Ceramics Company, Inc., 140 NLRB 221, 224.
6 Graphic Arts Finishing Co v. N L R B, 380 F 2d 893 (C A 4).
7 Emphasis supplied.
" N L.R.B. v. Bata Shoe Company, Inc, 377 F 2d 821
924 DECISIONS OF NATIONAL
that the Regional Director found that the Respondent did
not have adequate opportunity to reply to the letter in
question. The court did not take exception to that finding.
Furthermore, the court found and held that "Dominguez
and the union had special knowledge of the facts asserted
about Pecos, tending to inspire reliance by U.S. Rubber
drivers on what Dominguez said."
The foregoing I construe to be the rule of the case and
find myself bound in this respect by the court's decision.
Accordingly, I find that there are not but two issues be-
fore me. The first is whether or not there was in fact a
misrepresentation . The court has already decided that if
it was a misrepresentation it was material. The second
issue is whether the alleged material misrepresentation
had sufficient impact upon the employees involved and
upon the election to warrant setting aside the election and
vacating the certification.
II. THE FINDINGS OF FACT
With regard to the question of whether there was a
misrepresentation and whether the statements made in
the Dominguez letter were false, there are really three is-
sues when the statement is broken down into its various
components. The first issue is whether the Pecos drivers
averaged only 350 miles per day as alleged in the handbill
in question. The second question is whether the Laredo
drivers averaged over 500 miles per day as alleged. The
third is whether in comparison with Pecos drivers, were
the Laredo drivers, required to perform 6 days' work in
only 5 and yet get paid for only 5 days' work while doing
a full 6 days of labor for the Respondent?
The Respondent's proving ground manager, Maurice
G. Williams, testified that at the time of the union cam-
paign and the election, in November 1964, the Respond-
ent's Laredo proving ground operation had been in
operation for only about a year and had not gone into full
operation and did not have its official opening until Janua-
ry 1964. In fact, at the time of the election, some of the
test drivers had only been working for a few months. Wil-
liams further testified, without contradiction, that the
Respondent had never published any statistics or any in-
formation as to the overall average driven per shift by a
driver at Laredo. In fact no average figure was kept or ar-
rived at until Williams was asked by the Respondent's
counsel, just before the present hearing, to prepare
statistics showing the actual number of miles averaged by
Laredo drivers per day during the year 1964. Williams
testified that the average miles driven by Respondent's
test drivers at the Laredo proving ground, during 1964, as
compiled from the records, was 365 miles per 8-hour
driver shift.
None of the above testimony of Williams was con-
troverted and from this fact and from Williams' ap-
pearance and deportment on the witness stand, I con-
clude that Williams was a most dependable witness and
I credit all of his testimony in this respect.
Williams further testified credibly that a shift consisted
of an 8-hour workday with certain time off for cof-
feebreaks and gasoline pump time.
Thus, I find as a fact that, contrary to the letter which
alleged that the drivers at Laredo drove over 500 miles
N 1 have taken into consideration the other testimony of both Williams
and some of the drivers that when they drove at the 90-mile -per-hour test
that they actually did drive over 500 miles per 8-hour shift. However,
when the other tests were averaged in where the speed of the vehicles was
LABOR RELATIONS BOARD
per day, that their actual driving per day averaged out to
about 365 miles per day during the critical time.9
In connection with this 365-mile average, the General
Counsel argues that the men know how far they drive on
a shift because Williams testified that the shifts are logged
and that each test whether it be a 90-mile-an-hour test, a
60-mile-and-hour test, a 45-mile-and-hour test or a so-
called city test are all logged, so that a certain mileage
must be reached each shift. The testimony of Williams
does show that the men would know what the log for each
shift would be. The question of whether or not they could
therefore have been deceived by the representations
made in the Dominguez letter is discussed hereinafter.
With regard to the question of whether the drivers at
the Automotive Proving Grounds at Pecos drive only 350
miles per day as alleged in the Dominguez letter, Frank
E. Harper, president of Automotive Proving Ground at
Pecos, testified that, like the employees at the Respond-
ent's proving grounds in Laredo, the Pecos drivers work
8-hour-per-day shifts. They also drive at various speeds
depending upon what test is being run. However, their
records are not kept by driver shift but by vehicle shift.
Otherwise put, the drivers at Pecos may drive several
vehicles in one 8-hour period. This is so because each
vehicle that runs at least 100 miles is considered to have
covered a shift. Therefore, it is almost an impossibility to
compare the figures kept by the Automotive Proving
Grounds and by the Respondent's proving grounds. It is
like the comparison of the proverbial apples and oranges.
However, Harper stated that he had placed a notice on
his bulletin board that in a test run at 50 miles per hour
the drivers were expected to cover between 325 and 350
miles per shift; at 60 miles per hour they were expected
to drive 380 to 400 miles per vehicle shift; at 70 miles per
hour they were expected to drive 450 to 465 miles; and at
85 miles per hour 550 to 565 miles. These mileages would
all be for an 8-hour period, the same as the 8-hour period
which the drivers at Laredo must put in.10
With regard to a concrete example of how far cars are
driven in an 8-hour period at the Automotive Proving
Grounds at Pecos, Dominguez himself testified upon
being called as an adverse witness and admitted that he
drove on an average of 400 miles a day which was 50
miles a day more than he stated in his letter that the Pecos
drivers drove. Additionally, Harper estimated, in addition
to the foregoing requirements as set forth above, that the
average mileage per day for Pecos drivers was 375 miles
per day.
In addition to the foregoing, it was shown clearly in the
record that at the Pecos track the cars used auxiliary gas
tanks whereas at the Respondent's proving grounds no
auxiliary gas tanks were used. Thus, at the Pecos proving
grounds the drivers were not required to make gasoline
stops as often as they were at the Respondent's proving
grounds which would indicate that in any given period,
because of a lack of necessity to stop for gasoline, the
drivers at Pecos would have driven a greater distance
than the drivers at the Respondent's Laredo proving
grounds. Additionally, Harper testified that if Dominguez
averaged 400 miles per 8-hour shift then all of the em-
ployees at Pecos would have driven approximately that
far by reason of the fact that Dominguez was a good
much lower than that of the 90-mile test, the average mileage for each
driver is only 365 miles per driver.
11 From the uncontroverted testimony of Frank Harper who is a disin-
terested witness and whom I credit.
UNIROYAL
average employee and would represent, to Harper's
knowledge, what other employees would have done.
Thus, I find and conclude that the average of miles
driven at Pecos was above and in excess of the average
stated by Dominguez in his letter to the Respondent's
employees.
As noted above, the last segment of the representations
made in the Dominguez letter was that the Respondent's
test drivers do 6 days' work in only 5 and get paid for only
5 days while doing 6 days' work. The record shows, as
developed in the testimony of both Williams and Harper,
that the employees at both the Pecos proving ground and
the employees at the Respondent's Laredo proving
grounds work for 8-hour periods each day. It is true that
the Pecos drivers get paid for 6 days' work but, as
testified by Harper, the men work 6 days, 8-hour shift per
day. At Laredo, on the other hand, as testified by Wil-
liams, the Respondent's drivers work 5 days a week for
8 hours a day. Since the employees at both installations
do approximately the same kind of work and since it has
already been demonstrated in this report that the Pecos'
drivers drive, if anything, more miles in the 8 hours a day
on the average than do the drivers at the Respondent's
proving grounds, it is quite apparent that the Respond-
ent's employees do only 5 days' work and get paid for 5
days' work. On the other hand the employees at Pecos at
Automotive Proving Grounds do 6 days' work and get
paid for 6 days' work. Accordingly, I find that there is no
difference in the work for which the employees at each of
the proving grounds are paid, but that they are each paid
for the amount of work they do - no more, and no less.
The remaining testimony to be considered is that relat-
ing to the impact of the representations upon the Respond-
ent's employees and, therefore, upon the outcome of the
election. Three employees testified as to this particular
aspect of the problem presented by this proceeding Tony
Escovedo, a Respondent test driver, testified that he first
saw a copy of the Dominguez letter on Thursday,
November 5, the day before the election. He knew
Dominguez and was aware that the latter was an official
of the Union. After reading the paragraph which is the
subject of this inquiry, Escovedo felt that the employees
were "getting beat out of pay wages compared to their dif-
ference in mileage that we were running and they were
running there." He felt that the Respondent was getting
more work out of its employees than were the people who
were running the proving track at Pecos. He discussed
this with employee John Moreno and another employee
whose name was Garza. Each of these men thought they
were being, as testified by Escovedo in the vernacular,
"screwed.""
Leo Garza testified that at the time of the election he
was doing work as an office technician for the Respond-
ent but before that he had been a test driver and had
been in the office only a short time and was not certain
that he would not be a driver again. Accordingly, when he
received a copy of the Dominguez letter his reaction was
that he felt sorry for the drivers. He figured they were
getting "screwed." This made him very angry. Garza
heard another employee, Gonzalo Molina, talk about the
letter. Molina said that the letter helped the men a lot
because they received it just in time. Molina was a strong
union adherent. Garza further stated that he knew that
Dominguez was a representative of the Union and that he
1 From the uncontroverted testimony of Escovedo, which I credit.
z From the uncontroverted testimony of Garza, which I credit.
925
had worked at Pecos and therefore assumed that what the
letter said was true. 12
J. D. Carmichael testified that he has been a test driver
at the Respondent's Laredo proving grounds since Oc-
tober 1963. About the time of the election, however, he
was temporarily working in the office. He had a conversa-
tion with employee Guillermo Ponce, who was a cochair-
man of the union committee and has since become the
president of the Union's local. Ponce told Carmichael
that with the letter the Union had put out (the Dominguez
letter), the Company did not have a chance to win the
election. 13
Shortly after the election, Carmichael rode in an au-
tomobile with three other employees, Don Garza, Adan
Garza, and Bonito Villareal, all drivers. They told Car-
michael that each had been undecided about the election
until he received the letter and, thereafter, each voted for
the Union strictly on the basis of that letter. Carmichael
admitted on cross-examination that the letter had had no
effect on his own vote.
In connection with the foregoing testimony, Respond-
ent's counsel stated at the hearing that there were
present a number of other witnesses, who, if he called
them, would testify to the same effect. However, these
witnesses were not called because their testimony would
have been accumulative.
III. CONCLUDING FINDINGS
The court of appeals in its decision remanding this case
for hearing decided that the representations made in the
letter signed by Dominguez and approved by the Union
were made by a party who had special knowledge of and
was in an authoritative position to know the true facts.
Moreover, the court has also decided that the Respond-
ent did not have sufficient opportunity to correct the
misrepresentation if there was one, in fact. Thus, I come
now to the issue of whether there was a misrepresenta-
tion. I find and conclude that the paragraph which is the
basis for the Respondent's claim of misrepresentation did
contain several untruthful statements.
In the first place, I note from the testimony of Respond-
ent's proving ground manager, Maurice G. Williams,
which I credit, that the average miles driven by the test
drivers at the Respondent's Laredo proving ground was
365 miles per day. The statement in the letter alleged that
the drivers at Laredo drove over 500 miles per day on the
average. It does not require lengthy analysis to conclude
that, accordingly, the allegation of 500 miles per day was
an untruth and a misrepresentation.
Secondly, although not perhaps as apparent, is the
statement in the complained of paragraph that at Pecos
the drivers average only 350 miles per day. This, of
course, as noted above, does not conform to the
testimony of Harper, the owner and manager of the Pecos
proving ground, who testified that his best estimate was
that per vehicle shift the drivers at Pecos drove approxi-
mately 375 miles per day and not 350 miles per day as al-
leged by Dominguez in his letter. Moreover, Dominguez
himself admitted that he drove an average of 400 miles
per day and Harper testified that Dominguez was an
average, good employee and that the other drivers would
have driven approximately what Dominguez drove. Ac-
cordingly, I find and conclude that on this second count
13 1 credit Carmichael's testimony over Ponce's denial that he had ever
had any conversation of any kind with Carmichael
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the statement issued by Dominguez just prior to the elec-
tion was untrue and a misrepresentation.
Perhaps the most important statement of all, however,
was the statement to the drivers to the effect that they
worked 6 days in 5 and were paid for only 5 days whereas
the employees at Pecos enjoyed a 6-day workweek and
were paid for 6 days. I find that the facts adequately dis-
close that the amount of work done in any particular 8-
hour shift whether at Pecos or at Laredo is approximately
the same . Each employee is paid so much per hour for his
8-hour shift regardless of how much work is done during
that 8 -hour period . While the employees do get paid for 6
days ' work it is because they work six 8 -hour shifts. The
employees at Laredo who get paid for only 5 days' work
do so because they only work five 8-hour shifts. In-
asmuch as the representations as to mileage have already
been shown to be false , it is apparent that the employees
at Laredo do not work any harder in any 8-hour shift than
do the employees at Pecos. Accordingly , I find , from all
of these facts , that the representation that the employees
at Laredo work 6 days ' work but only are paid for 5 was
a complete and, in fact , extremely harmful misrepresenta-
tion . Such a misrepresentation when combined with the
misrepresentation heretofore found , could not but have
had a very great impact upon the employees.
Furthermore , with regard to impact, I note the uncon-
troverted testimony of the three employees which demon-
strates that the votes of the employees were greatly af-
fected by the statement in question . This, it seems to me,
belies any contention on the part of the General Counsel
and the Union that the statement had no impact upon the
employees or too little impact to warrant setting aside the
election . This is so because even if it can be argued that
the employees at the Respondent 's proving ground did
know to a certain extent how far they drove in any par-
ticular day , nevertheless they were affected by the letter
sufficiently to make some of them change their votes.
From this it must be concluded , a fortiori, that the letter
had a significant impact on the outcome of the election.
The Union and the General Counsel contend that, in
any event , the statement was ambiguous and had no real
meaning and that , therefore, it cannot be found , under the
Board's case law , to have been such a misrepresentation
as would warrant setting aside the election . But this issue
has already been answered by the court in its decision
remanding this proceeding for hearing . Thus the court
stated:
The Regional Director ' s report characterized the
above quoted statement in the letter as ambiguous,
subject to different interpretations and highly im-
probable to mislead the voters. To us it is neither
minor nor meaningless but means exactly what it
says - that as compared with the Pecos competitor,
the employer requires its employees to do 6 days
work but pays them for 5... .
Thus, it is apparent , that the court has already decided
that the paragraph in question is not ambiguous and does
in fact state untruthfully that Respondent underpays its
employees in comparison to the Pecos proving grounds,
by paying one day's less wages than the employees earn.
Inasmuch as this proceeding came before me in the
context of a refusal to bargain proceeding within the pur-
view of Section 8(a)(5) of the Act, I find and conclude
that because of the preelection conduct of the Union as
set forth herein , the Respondent properly refused to bar-
gain with the Union inasmuch as the certification was im-
proper in the light of the merits of the objections to the
election which were filed by the Respondent . I do not say
this lightly. But neither the Regional Director nor the
Board had the benefit , as have I, of having had the hear-
ing testimony before them which , in my opinion,
establishes facts of which neither the Board nor the Re-
gional Director could have been aware.
Accordingly, I find and conclude that the Respondent
did not violate Section 8 (a)(5) of the Act when it refused
to bargain with the Union.
IV. RECOMMENDATIONS
It having been found that the Respondent did not vio-
late Section 8(a)(1) and (5) of the Act when it refused to
bargain with the Union , I will issue a Recommended
Order dismissing the complaint in this proceeding.
In order to put the parties in status quo and to give the
employees involved an opportunity to vote in an election
held under ideal conditions as required by the Board, I
recommend that the election heretofore held be set aside
and that the certification heretofore issued in Case
23-RC-2307 be vacated.
CONCLUSIONS OF LAW
1. The Respondent is an employer as defined in Sec-
tion 2(2) and is 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-
ing of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is ordered that the complaint in this proceeding be, and
the same hereby is, dismissed.