Vitek Electronics

National Labor Relations Board - Board Decisions

Jan 12, 1984

268 N.L.R.B. 522 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vitek Electronics, Inc. and International Union of
Electrical, Radio and Machine Workers, AFL-
CIO-CLC. Case 22-CA-9695
12 January 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 30 June 1982 Administrative Law Judge
Howard Edelman issued the attached supplemental
decision. The Respondent filed exceptions and a
supporting brief. The Union filed cross-exceptions,
a supporting brief, and a brief in opposition to Re-
spondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the judge's supple-
mental decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings,' findings, 2 and conclusions3 and to
I The Respondent has filed a motion to amend its Exh. 118 to intro-
duce further evidence of employee turnover in the bargaining unit. In ad-
dition, the Respondent's exceptions renew motions, previously denied by
the administrative law judge, to reopen the record in Case 22-RC-7833
for the introduction of evidence before a hearing officer. We hereby
deny these motions as lacking in merit, for reasons set forth in the judge's
decision. In addition, we deny the Respondent's request for oral argu-
ment on the question whether the law of Midland National Life Insurance
Co., 263 NLRB 127 (1982), should be retroactively applied in this case.
Because we affirm the judge's finding that the Union did not make any
objectionable campaign misrepresentations under the law of General Knit
of California, 239 NLRB 619 (1978), which was overruled by Midland
Varional, we find no need to decide the applicability of the more lenient
standard in the later case.
Member Hunter, in adopting the judge's conclusion that the alleged
misrepresentations do not warrant setting aside the election, applies Hol-
lywood Ceramics Co., 140 NLRB 221 (1962), as the law of the case.
2 The Respondent has excepted to some of the judge's credibility find-
ings. 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.
In response to exceptions from both the Respondent and the Union, we
correct the judge's misidentification of the Union's employee observer at
the hearing. Mary Sheffield was the observer.
s In affirming the judge's findings and conclusions, we disavow any re-
liance on: (1) his statements that certain conduct by the Respondent
could arguably have violated Sec. 8(a)(l) of the Act; (2) his view that
witness Reilly's comparative wage analysis was flawed by the assumption
that cost-of-living provisions in union contracts were retrospective
"catch-up" clauses rather than prospective defenses against inflation; (3)
the implication that the Respondent needed to prove that its wages were
among the area's highest in order to meet its burden of proof for the
wage misrepresentation alleged in Objection 4; and (4) his comments
about the "frivolous" nature of the Respondent's objections.
Member Hunter and Member Dennis adopt the judge's recommenda-
tions that Respondent's Objections 3, 5, 7, and 8, involving alleged
threats, intimidation, and harassment of employees and alleged appeals to
racial prejudice, be overruled. In so doing, they find that even assuming
arguendo that the employees who engaged in such conduct were agents
of the Union. such conduct would not warrant setting aside the election
in the totality of the circumstances here.
268 NLRB No. 76
adopt the recommendation that the Board's Order
be reaffirmed. 4
ORDER
The Order issued by the Board in Vitek Electron-
ics, 249 NLRB 885 (1980), is reaffirmed.
4 We deny the Union's request for extraordinary remedial provisions in
the Order because we find such remedies inappropriate in this test-of-cer-
tification proceeding where the Respondent has raised debatable issues
and a conventional bargaining order will suffice to remedy the Respond-
ent's refusal to bargain.
Because the bargaining order in this case is based on the Union's certi-
fication, and in the absence of extraordinary circumstances here, Member
Hunter and Member Dennis find it unnecessary to pass on the judge's
discussion concerning the relevance of employee turnover and passage of
time as factors in determining whether a remedial bargaining order is ap-
propriate.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge: On
June 7, 1979, a majority of the employees of Vitek Elec-
tronics, Inc., herein called Respondent, in a secret-ballot
election conducted under the supervision of the Regional
Director for Region 22, designated by a vote of 70 to 45,
International Union of Electrical, Radio and Machine
Workers, AFL-CIO, CLC, herein called the Union, as
their representative for the purpose of collective bargain-
ing with Respondent. Thereafter, Respondent filed
timely objections to the conduct of the election. On Sep-
tember 7, 1979, the Acting Regional Director for Region
22 recommended the Employer's objections be overruled
in their entirety and that pursuant to Section 9(a) of the
National Labor Relations Act the Board issue a Certifi-
cation of Representative. On December 14, 1979, the
Union was certified as the collective-bargaining repre-
sentative of Respondent's production and maintenance
employees. Thereafter, Respondent upon an appropriate
demand by the Union refused to recognize the Union as
said collective-bargaining representative. On January I I,
1980, the Union filed unfair labor practice charges with
Region 22, alleging a refusal to bargain by Respondent in
violation of Section 8(a)(1) and (5) of the Act. On Febru-
ary 4, 1980, a complaint was issued against Respondent
alleging that Respondent had engaged in unfair labor
practices by refusing to bargain with the Union within
the meaning of Section 8(a)(1) and (5) of the Act. On
May 28, 1980, the Board issued a Decision and Order in
249 NLRB 885, finding that Respondent had violated
Section 8(a)(l) and (5) of the Act by refusing since on or
about January 7, 1980, and at all times thereafter to bar-
gain collectively with the Union as the exclusive collec-
tive-bargaining representative of Respondent's produc-
tion and maintenance employees. Thereafter, Respondent
petitioned to the United States Court of Appeals for the
Third Circuit for review and the National Labor Rela-
tions Board filed a cross application for enforcement of
its Decision and Order (Case No. 80-1867). On June 30,
1981, the United States Court of Appeals for the Third
Circuit entered its Decision, denying enforcement of the
522
VITEK ELECTRONICS
Board's Order, and remanding the case to the Board for
a hearing on Respondent's Objections 3-8, to the con-
duct of the aforementioned election. Thereafter, by
orders dated October 15 and 21, 1981, the Board ordered
that a hearing be held before an administrative law judge
"for the purpose of taking evidence on Respondent's ob-
jections in accordance with the Court's remand and this
direction" and that, upon the conclusion of such hearing,
"the Administrative Law Judge shall prepare and serve
on parties a decision containing findings of fact upon the
evidence received, conclusions of law, and recommenda-
tions."
Pursuant to the above orders, a hearing was held
before me in Newark, New Jersey, on January 6-8, 12-
15, 20-22, and 26-29, and February 2-5, were 3,995
pages. All parties were afforded full opportunity to par-
ticipate, to present relevant evidence, to examine and
cross-examine witnesses, to argue orally, and to file
briefs. '
Upon the entire record2 in this supplemental hearing,
and from my observation of the witnesses, and having
fully considered the briefs submitted by the parties, I
make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Scope of the Court Remand
Respondent filed the following objections to the con-
duct of the election which were remanded for a hearing
herein:3
3. OBJECTION No. 34
The International Union of Electrical, Radio and
Machine Workers, AFL-CIO, its officers, agents
and employees (collectively the "Union," the
"IUE" or the "Petitioner") engaged in a campaign
of fear, intimidation, coercion and threats directed
at the Vitek employees during the election cam-
paign, appealed to the employees' race and other ir-
relevant factors and otherwise created an atmos-
phere at the plant so that the employees were
unable to express their uncoerced desires in the
election.
(a) During the Union campaign at Vitek,
"Harold," believed to be an agent and representa-
tive of the IUE, stopped a Vitek employee in the
Vitek parking lot. "Harold" called the employee
"one of those house niggers." Both "Harold" and
the employee are black.
(b) An employee wrote a letter to "Harold" in
which the employee indicated his opposition to the
Union. The next day, another employee, whom the
first employee knew to be in favor of the Union,
threatened the first employee that if the Union won
The General Counsel, Respondent, and the Union each filed a brief.
2 Errors in the transcript are hereby noted and corrected.
I Respondent did not seek review of objectional conduct alleged in its
Objections I and 2, which involved alleged misconduct during the elec-
tion held on June 7, 1982.
4Applicable exhibits filed in connection with Respondent's objections
were introduced separately by Respondent during the course of this hear-
ing.
it would do nothing to help him if he had a prob-
lem with Vitek and that "could get in a lot of trou-
ble with the Union." The first employee believed
that if the Union won the election they would try
to get rid of him and he would lose his job.
(c) Various employees were threatened that they
would be "given a hard time" if they were not for
the Union and otherwise "felt afraid" because they
would not indicate their unequivocal support of the
Union during the campaign.
4. OBJECTION No. 4
On the day of the election itself, and possibly on
June 6, 1979, the day prior to the election, the
Union distributed to employees, by hand and possi-
bly by mail to their homes, a handbill attached
hereto as "Exhibit I" containing misrepresentations
of material facts particularly within the knowledge
of the Union at a time when the Employer lacked
an adequate opportunity to respond. Examples of
misstatements from this handbill, which is objected
to in toto, include:
In the "good ole" days, before the Union came
on the scene, the Company had every opportuni-
ty to make Vitek a decent place to work.
But they goofed.
Rates of pay were the lowest in the area. Se-
niority meant nothing when it came to promo-
tions or overtime.
Few safety precautions were taken to protect
the people from carbon monoxide fumes, and
when they got sick because of the fumes, many
of the workers lost pay.
Employees could be fired with no chance of
appeal and all in all, management was completely
in the drivers seat.
These statements are completely false and mislead-
ing. For example, Vitek's rates of pay are among
the highest in the area for similar work. Moreover,
the statements were made at a time-at most, one
day before the election, and perhaps on the day of
the election itself-when Vitek obviously did not
have an adequate opportunity to obtain the neces-
sary information and to prepare and distribute an
appropriate response to these material misrepresen-
tations.
5. OBJECTION NO. 5
On the day of the election itself, and possibly on
June 6, 1979, the Union distributed to employees,
by hand and possibly by mail to their homes, a
handbill attached hereto as "Exhibit 2" containing
misrepresentations of material facts particularly
within the knowledge of the Union at a time when
the Employer lacked an adequate opportunity to re-
spond. Examples of misstatements from this hand-
bill, which is objected to in toto, include:
523
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"As a black man myself, I have learned the
hard way that nothing is handed to anyone on a
silver platter and that we are conditioned from
childhood to struggle to get to first base."
"As a result of the efforts of unions like the
IUE-AFL-CIO, we have been able to join to-
gether, shoulder to shoulder, and make our gains
together in the face of attempts by companies to
keep us apart and thereby keep us all down."
"This has also been the case at Vitek. Workers
have been separated into different shifts and on to
different types of jobs in order to keep us apart
so that the company would have the advantage
over all of us."
These statements clearly were designed to create
an atmosphere of fear, divisiveness and racial ten-
sion among Vitek employees. The references in the
above letter to Mr. Morrison's race was particularly
intended by the Union to emphasize the fact that
Vitek employees are of many racial and ethnic ori-
gins, and thus to create an atmosphere of hostility
and suspicion among the employees which the
Union exploited to its own advantage.
"Exhibit 2" also stated, in part:
"Ever since IUE came on the scene, it is obvi-
ous to all that the company has been 'born again'
and in order to defeat the union is offering all
sorts of tidbits for the time being, such as basket-
ball, softball, free drinks, disco, etc."
"From my personal observation, the company
cannot win the vote of Vitek workers through
these obvious handouts."
The plain implication of these assertions-that
Vitek tried to win the election by offering tempo-
rary "handouts" to its employees-is patently false
and implies that the employees will lose benefits by
voting for the company (see, also, Objection No. 7).
6. OBJECTION No. 6
On the day of the election itself and possibly on
June 6, 1979 the Union distributed to employees, by
hand and possibly by mail to their homes, a handbill
attached hereto as "Exhibit 3" containing misrepre-
sentations of material facts particularly within the
knowledge of the Union at a time when the Em-
ployer lacked an adequate opportunity to respond.
Examples of misstatements from this handbill,
which is objected to in toto, include:
"The cost of living is going up at a rate of
14%."
"In other plants in this area, where the people
have previously voted in the IUE, the Union has
negotiated cost of living protective clauses.
"Under their union contract
* AT EDISON PRODUCTS (WHITE-WEST-
INGHOUSE), EDISON, N.J.
* AT GULTON INDUSTRIES, METUCHEN,
N.J.
* AT DELCO BATTERY, NEW BRUNS-
WICK, N.J.
the wages of IUE members are increased regular-
ly, throughout the year, to keep pace with the
cost of living increase announced by the U.S. De-
partment of Labor.
This is the kind of protection we need at Vitek
where wages are low enough without being fur-
ther 'cut' by runaway prices."
Upon information and belief, the collective bar-
gaining agreements at Edison Products, Gulton In-
dustries and Delco Battery do not guarantee to em-
ployees absolute and unlimited protection against
cost of living increases, as stated in the Union leaf-
let. Rather those cost of living formulas are
"capped" and keyed to a specific formula. Again,
these material misrepresentations were made at a
time when Vitek obviously did not have an ade-
quate opportunity to obtain the necessary informa-
tion and to prepare and distribute an appropriate re-
sponse to these misrepresentations.
7. OBJECTION No. 7
In letters distributed to the employees throughout
the campaign, many at the "last minute" so that the
Employer lacked a sufficient opportunity to re-
spond, the Union stated or intimated that employees
would lose benefits or suffer other detrimental con-
sequences if the Union lost the election. Examples
of these threats include statements and intimations
that benefits will be "take[n] away" [Exhibits 1, 2, 4
and 5] if the Union loses the election. Again, Exhib-
its 4 and 5 are objected to in toto.
8. OBJECTION No. 8
The Union, its officers, agents and employees in
other respects intimidated and threatened unit em-
ployees and engaged in other conduct coercing
Vitek employees in the unit into voting for the
Union and thereby prevented a free and uncoerced
vote on the part of the employees in the unit con-
cerned.
B. Background
In 1976, Respondent employed a handful of employees
and was engaged in the exclusive production of an elec-
tronic filter trap used in the cable TV industry. From
1976 through the latter part of January 1979, Respond-
ent's single facility was located in Middlesex, New
Jersey. In the latter part of January 1979, Respondent
moved to its present location of Edison, New Jersey.
The Edison, New Jersey facility was a new custom built
facility, constructed by Respondent through a building
contractor. As of June 1979, Respondent employed a
total of 127 unit employees. Of this total, 35 employees
were male and 88 employees were female. Respondent's
employee complement was a highly integrated racial
524
VITEK ELECTRONICS
complement comprising 54 black employees, 33 white
employees, 15 Hispanic employees, and 11 Asian em-
ployees. Election notices were printed in English, Span-
ish, Hindu, and Korean.
The unit covered by the certification was essentially a
production and maintenance unit.5 The unit employees
were invariably unskilled who received anywhere from 2
days to 2 weeks on-the-job training, which enabled them
to become skilled enough to perform the job required.6
C. The Union's Organizing Campaign-Respondent's
Antiunion Campaign
The union campaign in connection with organizing
Respondent's employees commenced sometime around
mid-March 1979,7 when Respondent employees contact-
ed the Union and expressed interest. International union
representative Harold Morrison was placed in charge of
the Union's campaign. Assigned initially to work with
Morrison was International representative Louis Rivera.
Beginning in May, International representatives Theo-
dore Kenney, Tom Deary, and Lenni-Ann Rebor were
assigned to assist Morrison in the Union's campaign.
Morrison is black, Rivera is Hispanic, and Kenney,
Deary, and Rebor are white.
Shortly after the employees contacted the Union, Mor-
rison held several meetings with Respondent's employ-
ees. According to Morrison's credible and uncontradict-
ed testimony, attendance at the first two meetings was
approximately 90 percent of Respondent's total employee
complement, of which, in Morrison's estimation, 80 per-
cent were strongly prounion. During these meetings, a
large number of signed union authorization cards were
obtained. On April 5 a petition for an election was filed
with Region 22. During the entire union campaign, the
Union held approximately 10 to 15 meetings outside the
plant. Meetings were often held in a nearby Holiday Inn
or similar private locations. Beginning on April 3 and
continuing at regular intervals until June 6, the Union
distributed to the employees 16 separate campaign leaf-
lets.8
Initially, Morrison and Rivera were present at Re-
spondent's facility 2 to 3 days a week. They were later
joined in May by Kenney, Deary, and Rebor. During
these plant visits, the union representatives would speak
with employees concerning plant problems, listen to
complaints or reports by various employees concerning
s The unit set forth in the complaint herein consists of:
All full time and regular part time production and maintenance em-
ployees, including punchers, respoolers, crimpers, connectors, cut-
ters, soderers, benders, tiers technicians, testers, braiders, driver, jani-
tor, group leaders, material handlers, and shipping and receiving em-
ployees employed by Respondent at the Edison plant, but excluding
all other employees, including superintendents, floor persons, pro-
duction control persons, office manager, payroll clerk, purchasing
agent, sales employees, marketing employees, personnel administra-
tor, chief engineer, office clerical employees, managers, professional
employees, temporary employees, guards and supervisors as defined
in the Act.
' Respondent also employed two unit technicians who had high school
degrees and who required about I year experience in the field or on-the-
job training.
7 Unless otherwise noted, all dates referred to herein are in 1979.
' Many of the union leaflets and Respondent's leaflets will be discussed
in detail below.
Respondent's antiunion campaign, and distribute union
leaflets. Of the 16 leaflets distributed to the employees,
15 of these leaflets were distributed by Morrison and
other International union representatives to employees as
they came to and left work. The 16th leaflet was mailed
to all employees on or about June 5.9 Generally the
union representatives stationed themselves on the public
street in front of Respondent's facility and adjacent to
Respondent's parking lot. All union leaflets were distrib-
uted to at least the majority of Respondent's employees.
All leaflets (with one exception not relevant in connec-
tion with the disposition of this case) were distributed in
English only.
Robert Giessler, Respondent president, first became
aware of the union campaign sometime during late
March 1979, when one of his supervisors brought him a
union authorization card and told him that the employees
were being solicited by this Union to sign these cards.
Thereafter, Respondent commenced an admittedly exten-
sive antiunion campaign. This campaign included many
speeches to assembled employees delivered by Giessler
and various other Respondent officials. Respondent con-
ducted approximately one such meeting each week
during the campaign including a speech to all shifts de-
livered by Giessler 24 hours prior.to the election. Addi-
tionally Respondent issued 20 antiunion leaflets through-
out the course of the union campaign to its employees.
Further, during the course of the Union's campaign, Re-
spondent initiated major employee benefits which includ-
ed a 17-percent wage increase, life insurance, dental cov-
erage, major medical coverage, and additional vacation
and holidays. o
D. Agency Allegations
Respondent contends that employees Elestine Randolf,
Mary Sheffield, Fanny Taylor, Rudy Newsome, Doro-
thy Kmiec, Shelly Woodly, Florence Davis, Dorothy
Owens, and Ellen Garza were agents of the Union. Re-
spondent further noted that all of the above employees
with the exception of Kmiec and Garza were black.
Harold Morrison credibly testified without contradic-
tion that during the union organizing campaign no union
committees were formed. According to Morrison's credi-
ble testimony, in view of the 90-percent turnout of em-
ployees at the initial union meetings and the overwhelm-
ing support of employees for the Union, it was deter-
mined by Morrison that there was no need to form inter-
nal working union committees. Morrison testified that
the "IUE-Vitek Organizing Committee," which is set
forth on some of the Union's campaign literature, was
9 This leaflet is the subject of Respondent's Objection 5 and is dis-
cussed herein below
'o As a result of the granting of such benefits, and other conduct de-
scribed below, the Union filed unfair labor practice charges against Re-
spondent alleging violations of Sec. 8(aXI), (3), and (5) of the Act. The
Region ultimately determined that a complaint should issue alleging that
the granting of these benefits and other conduct alleged constituted viola-
tions of Sec. 8(a)(l), (3), and (5) of the Act The complaint also alleged
that a bargaining order was appropriate in view of the alleged unfair
labor practices. However, the parties thereafter entered into a informal
settlement agreement containing a nonadmissions clause. The settlement
did not provide for a bargaining order in view of the Union's opinion
that it would win the election
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not really a committee, but rather consisted of all of the
employees.
Morrison conceded that the above-named employees
alleged by Respondent as agents were prounion employ-
ees. All of them regularly attended union meetings, but
did not address employees at these meetings. However,
attendance was very high at union meetings with any-
where between 15 to 50 employees in attendance at each
meeting and over 90-percent attendance at the first two
meetings.
Garza, Kmiec, and Randolf acted as designated ob-
servers for the Union in the June 7 election. They also
sold tickets for a union picnic held in May. Additionally,
Randolf, Sheffield, and Garza on two occasions distribut-
ed some union leaflets to employees. On one occasion,
Florence Davis distributed some union authorization
cards among the employees and obtained their signa-
tures. She returned the signed cards to union representa-
tives. With the exception of Ellen Garza, discussed in
detail below, none of these employees was paid in any
way by the Union. Additionally, these employees as well
as a majority of Respondent's employees from time to
time conversed with union representatives outside the
plant as they came to and left work.
As to Dorothy Owens, Elestine Randolf, Mary Shef-
field, Fanny Taylor, Rudy Newsome, Dorothy Kmiec,
Shelly Woodly, and Florence Davis, the evidence estab-
lishes that, at most, these employees were prounion em-
ployees and not agents of the Union. I attach no signifi-
cance to Respondent's observation that all of the above
employees except for Kmiec and Garza were black.
Their activities were generally limited to attendance at
union meetings, acceptance of union literature, and brief
conversations with union agents on various occasions as
the employees entered and left work. The evidence es-
tablishes that a majority of the employees engaged in
similar conduct. As set forth above, the evidence estab-
lished that attendance at union meetings was generally
high with anywhere from 15 to 50 employees attending
each meeting and over 90-percent of the employee com-
plement attending the initial two meetings conducted by
the Union. Additionally, a majority of the employees fre-
quently stopped to converse with union officials when
entering and leaving the plant. In this connection, it is
admitted that the majority of employees received direct-
ly from union representatives each piece of union litera-
ture as they entered or left the building. Moreover, Re-
spondent Supervisor Ed Conquest testified that, in addi-
tion to the above employees alleged as agents, he ob-
served over 50 employees who stopped to talk with
Morrison in similar manner as the alleged agents.
Nor do I find particularly significant that Randolf,
Kmiec, and Garza acted as union observers during the
election and sold tickets to the union picnic held in May,
or that Randolf and Sheffield distributed on two occa-
sions union leaflets to employees and Florence Davis on
a single occasion distributed authorization cards to em-
ployees. I conclude that such minimal activities are insuf-
ficient to establish an agency connection between the
Union and the employees sufficient to attribute acts of
employees to the Union.
The Board has consistently held the facts that an em-
ployee serves as a union observer or is prominent in an
organizing campaign does not make him an agent of the
Union, and the Board is reluctant to set aside an election
because of the misconduct of such employee. Connecticut
Foundry, 247 NLRB 1514, 1520 (1980); Tennessee Plastics,
215 NLRB 315 (1974); Zero Foods Co., 214 NLRB 764
(1974); Owens-Corning Fiberglas Corp., 179 NLRB 219
(1969); Mine Workers of America District 30 (Terry Elk-
horn Mining Co.), 163 NLRB 562 (1967).
In connection with Ellen Garza, Archer Cole, presi-
dent of District 3 of the Union, testified that he personal-
ly knew Ellen Garza and her husband, who was affili-
ated with another labor organization. Sometime in the
beginning of February, Ellen Garza met with Cole in his
office to inquire about employment at one of the neigh-
boring plants. Cole referred her to a list kept by the
Union of organized and unorganized plants. One of the
plants on the union list for organization was Respondent.
Sometime around the end of February, Ellen Garza
again contacted Cole and informed him that she had ob-
tained employment at Respondent. She asked him wheth-
er the Union could provide financial assistance to her for
her child's nursery school so she could keep her job at
Respondent. Cole agreed to pay her $50 a week, which
was charged on the Union's books as an "organizing ex-
pense." Weekly payments of $50 began on the week
ending March 2, and concluded on the week ending June
8, the day after the election.
Additionally, between April 4 and June 6, Garza vis-
ited Cole's office on about five separate occasions. On
each occasion Garza contacted Cole by telephone and
requested the meeting. During these meetings, Garza
would discuss the progress of the campaign with Cole
and offer various suggestions. On each occasion the
Union reimbursed Garza for food and traveling expenses.
There is no evidence to establish that employees regard-
ed Garza as an agent of the Union. Indeed there is no
evidence that employees were aware of her payments by
the Union or meetings with Cole.
In view of the fact that the only objectional conduct
attributed to Garza was directed to employee Madeline
Girgess, whom I have concluded below, to be a totally
incredible witness, entirely unworthy of belief, I do not
make any findings as to whether Ellen Garza is an agent
of the Union.
E. Threats, Intimidation, and Harassment of
Employees, and Appeals to Racial Prejudice
Respondent's Objections 3, 5, 7, and 8
The only alleged objectionable conduct directly attrib-
utable to a union representative during the entire cam-
paign took place between International representative
Harold Morrison and employee Anthony Pollard. Some-
time during the April-May period of the union campaign,
employees Charlie Witlock and Anthony Pollard (both
of whom are black) arrived at Respondent's facility in a
car driven by Witlock to begin work. At this time Mor-
rison, also black, was in front of Respondent's facility,
distributing union leaflets. Pollard usually rode to work
526
VITEK ELECTRONICS
with Witlock. Witlock, a known prounion employee,
stopped his car and accepted a leaflet from Morrison. At
this point he raised his fist to Morrison and said, "The
Union is getting in." Witlock and Morrison laughed. Pol-
lard, a known antiunion employee, sitting next to Wit-
lock, said to Morrison, "Fuck you and your Union."
Morrison replied, "Tony, don't be a house nigger for
nobody." Morrison and Witlock then laughed. No other
employees were present at this time. No further conver-
sation took place between Morrison and Pollard at this
time. Pollard and Witlock then entered the plant and
began work.
When Pollard was questioned by Respondent's counsel
how he interpreted Morrison's "house nigger" statement
to him, he replied, "I took it like he [Morrison] was
saying that I was some kind of go-fer for the Company."
When Respondent counsel asked Morrison whether he
believed that his use of the phrase "house nigger" as di-
rected to Pollard was a bad word Morrison replied,
"Not to me. Not to use it among ourselves, among our
race no." When Respondent counsel pursued this line of
inquiry and questioned what he meant by his "house
nigger" statement, Morrison replied that the phrase in his
mind denoted a master-slave mentality.
Shortly after Pollard entered the plant and com-
menced work following Morrison's "house nigger" state-
ment, he wrote a letter to Morrison which he gave to
fellow employee George Allen to deliver. Allen deliv-
ered the letter to Morrison. The letter stated, "Take your
IUE and shove it up your ass." The letter was signed,
"Little House Nigger."" After Pollard had the letter de-
livered to Morrison, he testified he asked his supervisor
if he could be assigned overtime work because he "didn't
want to go out there and face those people [union repre-
sentatives] after I wrote that letter." Pollard was as-
signed the overtime he had requested and was able to
leave work after Morrison and other union representa-
tives had departed.
A day or so after Pollard wrote the above letter to
Morrison, Pollard testified that employee Dorothy
Owens approached him and told him he should not have
written the letter to Morrison because, if the Union came
in, Morrison would be the employees' representative and
it would be hard to work with Morrison as a result of
this letter, and that if he needed Morrison's help, Morri-
son might not help him.
Several days later, during lunch hour, employees
Frances Kelly, Fred Henderson, Charlie Witlock, and
Rudy Newsome were outside Respondent's facility talk-
ing to Morrison. At this point Pollard walked over and
Witlock said, "Here comes the house nigger." All of the
above employees were black. There is no evidence that
other employees were present at this time. Pollard
walked away. Morrison said nothing. Following the
lunch hour, the above employees accompanied by Pol-
lard returned to work. Frances Kelly, a slight, female
employee, continued to rib Pollard by laughingly calling
him "an Uncle Tom" and "house nigger." Pollard testi-
'' Morrison testified that the letter he received from Pollard stated,
"Kiss my ass." I see no real distinction concerning the discrepancy be-
tween the testimony of Morrison and Pollard as to the contents of the
letter Morrison testified he did not retain the letter.
fied he was angered by Kelly's ribbing and turned on her
and told her that if she called him that again he was
going to "knock her out." Present during this altercation
between Pollard and Kelly were the above-named em-
ployees. Additionally, Respondent Supervisors Ed Con-
quest and Walt Frank were also present. When Pollard
threatened to "knock Kelly out," Rudy Newsome, who
was Kelly's boyfriend at the time, began scuffling with
Pollard. During this scuffle, he attempted to pull a knife
from a sheath on his belt which he had always worn and
which was plainly visible on his belt. Supervisor Con-
quest broke up the scuffle and both employees returned
to work. Neither Pollard or Newsome was disciplined by
Respondent in any way for their conduct. To the con-
trary, Newsome was subsequently promoted to the posi-
tion of supervisor and continued to carry a knife affixed
to his belt. Additionally, prior to and subsequent to the
incident Pollard and Newsome were and are presently
friends.
Several days after Pollard's conversation with Morri-
son and following his conversation with Dorothy Owens
and his confrontation with Frances Kelly and Rudy
Newsome, Pollard testified that he approached Morrison
outside Respondent's facility and told him he wanted to
straighten things out. He told Morrison he did not like
being called a "house nigger." Morrison apologized if he
offended him and told him, "I don't care if you vote for
the Union or the Company, everyone has a right . . . to
make up their own mind." Pollard then told Morrison
that some of the employees had told Pollard that Morri-
son would not help him if the Union was elected and he
had a problem. According to Pollard's testimony, Morri-
son replied, "Pollard, if we win or lose the election I'll
stand behind you." Morrison's testimony corroborates
Pollard's testimony as to this conversation.
Morrison specifically denied ever telling Pollard that if
he did not vote for the Union his job as leadperson was
not secure or that he would lose his job.
I conclude that Morrison's statement to Pollard im-
ploring him not to be a "house nigger" did not contain
any threat, expressed or implied, nor could it be reason-
ably concluded that such remark was intended to or did
intimidate Pollard or Witlock. In this respect Witlock
laughed when Morrison made the statement and Pollard
interpreted the statement as imploring him not to be a
"go-fer" for Respondent. Therefore, the only contention
that Respondent could reasonably make would be that
the statement was intended to and did inflame the racial
feelings of the voters in the election.
At the outset it is noted that the remark was made by
a black man to another black man in the presence of a
third black man. Moreover, the testimony of Pollard and
Morrison establishes that Morrison intended and Pollard
understood the intention of Morrison to convey to Pol-
lard Morrison's feeling that Pollard by his pro-Company
position was exhibiting a master-servant type of mentali-
ty. The "house nigger" statement, in my opinion,
amounted to no more than a plea by Morrison that Pol-
lard abandon his servant-type mentality, and join those
employees in favor of the Union. Moreover, Morrison
later apologized to Pollard for making such statement. I
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do not find such an isolated statement made by one black
man to another, to a single employee, out of 120 unit em-
ployees, to constitute objectionable conduct. The Board
held in Sewell Mfg. Co., 138 NLRB 66 (1962), that cam-
paign propaganda calculated to inflame the racial preju-
dices of employees by deliberately overemphasizing
racial feelings through irrelevant and inflammatory ap-
peals is the basis for setting aside an election. I conclude
that Morrison's statement to Pollard does not fall within
the rationale set forth in Sewell Mfg. Co., supra. Accord-
ingly, I do not consider Morrison's statement to be ob-
jectionable conduct.
I find no merit in Respondent's contention that Pollard
was so intimidated by Morrison's "house nigger" state-
ment to him that he requested that he be assigned over-
time in order to avoid meeting the union representatives
upon leaving work. The evidence established that, fol-
lowing Morrison's statement to Pollard, Pollard wrote
Morrison a letter in which he stated, "Take the IUE and
shove it up your ass." The letter was signed, "Little
House Nigger" so that Morrison would know who sent
it. I conclude that it was Pollard's letter to Morrison
which was responsible for any fear that Pollard may
have felt and it was his letter which prompted his re-
quest for overtime to avoid meeting Morrison upon leav-
ing the plant. Pollard admitted this.
Nor do I find employee Dorothy Owens' statement to
Pollard to the effect that he should not have written
Morrison the letter because Morrison, as union represent-
ative, might not represent him. In this connection, the
evidence established that Dorothy Owens was not an
agent of the Union. Therefore, her statement to Pollard
amounted to no more than an employee's statement of
opinion to another employee of the possible consequenc-
es of his actions. Moreover, Pollard conceded that, fol-
lowing his conversation with Owens, he spoke with
Morrison who specifically disavowed Owens' prediction
and assured Pollard that he would stand behind him and
represent him. Therefore, even if it could be argued that
Owens was an agent of the Union, the evidence clearly
established that Morrison fully disavowed any objection-
able conduct by Owens. Accordingly, I do not find the
statement by Dorothy Owens to Anthony Pollard to
constitute objectionable conduct.
Similarly, I do not find the incident involving Pollard,
Frances Kelly, and Rudy Newsome to constitute either
threatening or intimidating conduct or an appeal to racial
prejudice. In this regard Kelly's statement to Pollard
calling him a "Uncle Tom" and "house nigger" consti-
tuted obvious ribbing. As set forth above, the entire inci-
dent involving Kelly and Newsome took place in the
presence of black employees. Moreover, I have conclud-
ed that Kelly was an employee and not an agent of the
Union. Therefore, her expression of opinion cannot be
attributed to the Union. In connection with the subse-
quent scuffle between Pollard and Newsome, wherein
Newsome attempted to pull a knife from his belt, I con-
clude that the scuffle resulted directly from Pollard's ill-
considered threat to "knock [Kelly] out." Moreover, Su-
pervisors Ed Conquest and Walt Frank were present
during the entire incident and broke up the scuffle. Nei-
ther Pollard nor Newsome was disciplined; in fact New-
some who carried the knife in his belt prior to and subse-
quent to the union campaign was ultimately promoted to
a position of supervisor.
Sometime during the second or third week in April,
employees Elestine Randolf and Maria Diaz, working on
the second shift, became engaged in an argument as to
which employee would perform cutting operations and
which employee would perform connecting operations.
It appears that the different work was performed on an
alternating day basis by these two employees. On this
particular occasion, Randolf claimed that it was her day
to cut and Diaz' to do connect. At some point during
their argument, Supervisor Ed Witkowski intervened.
Randolf told Witkowski that it was her day to cut. Daiz,
who spoke broken English, motioned employee Jorge
Chavez over to act for her as an interpreter. Witkowski
told Randolf to let Diaz continue to cut and Randolf to
connect. Randolf testified that upon departing she told
Diaz that she would be glad when the Union came in,
then seniority would mean something. She specifically
denied telling Diaz how she should vote or that she had
better vote for the Union as contended by Respondent.
Witkowski testified that upon leaving Randolf pointed
a finger at Diaz and said, "Things were going to change
when the Union gets in and that she better vote for the
Union." 1 2
An examination of Witkowski's testimony established
that he generally had a vague recollection of the facts
surrounding the incident. Such testimony was contrasted
by Randolls clear recollection of the facts of this inci-
dent as well as other incidents to which she testified.
Moreover, based on comparative demeanor, I was more
impressed with Randolf's demeanor. She answered all
questions put to her forthrightly and in detail on both
cross- and direct examination. Further, her answers on
cross-examination were consistent with those on direct.
In contrast, on cross-examination Witkowski's version of
Randolf's statement to Diaz varied to an extent.
Additionally, it appears to me that Randolf's version is
more logical. The testimony throughout this hearing es-
tablishes that the employees were generally dissatisfied
that seniority was not considered by Respondent with
regard to work assignments, overtime, and promotions.
Therefore, upon losing the work assignment to Diaz, it
would appear logical that Randolf, a prounion employee,
would comment that, after the Union came in, seniority
would mean something, such comment implying that
with the Union as a representative she would have been
awarded the work assignment rather than Diaz. It does
not appear logical to me that, in the context of this dis-
cussion, Randolf specifically denied telling Diaz during
this discussion how she should vote or that she had
better vote for the Union. Accordingly, I credit Ran-
dolf. ' a
t [)iaz was not called by Respondent as a witness.
: I credit Randolf notwithstanding her candid admission during cross-
examination that she had received warnings for lateness, absence, and
work quality that she was subsequently terminated and that on one occa-
sion had been consvicted of welfare fraud.
528
VITEK ELECTRONICS
As set forth above, I have concluded that Elestine
Randolf and other employees alleged as agents by Re-
spondent were not agents of the Union, but rather
merely rank-and-file employees. The Board has long held
that far less weight is to be accorded to the conduct of
rank-and-file employees than that of parties to an elec-
tion in considering election objections. Six Flags Over
Mid-America, 253 NLRB 111 (1980); Beaird-Poulan Divi-
sion v. NLRB, 649 F.2d 589 (8th Cir. 1981); NLRB v.
Mike Yurosek & Sons, Inc., 597 F.2d 661 (9th Cir. 1979).
Additionally, the Board has held that where it is alleged
that rank-and-file employees have engaged in objection-
able conduct, an election will be overturned only if the
conduct is sufficient to have created an atmosphere of
fear and reprisal such as to render a free expression of
choice impossible. Six Flags Over Mid-America, Beaird-
Poulan, and Mike Yurosek & Sons, Inc., supra.
Applying this rationale to the conversation between
Diaz and Randolf, I conclude that Randolfs statement
does not nearly come within that standard of conduct re-
quired to set aside an election. Moreover, my conclusion
would be the same if I had credited Witkowski's testimo-
ny.
Elestine Randolf was one of several employees selling
tickets for the union picnic scheduled for May 20. She
approached employee Kim Smith who worked on the
second shift with her and Smith purchased $6 worth of
picnic tickets. Several days after the picnic had been
held on May 20, Smith, evidently unable to attend the
picnic, approached Randolf and asked for her money
back. Randolf told Smith she could not return the money
because she had turned it over to the Union before the
picnic and it was too late for refund. An argument
ensued between Smith and Randolf, both black employ-
ees, during which Smith started screaming at Randolf.
At this point their supervisor, John Kulaszewski, came
over and asked Smith what was wrong. When Smith
complained about Randolf's refusal to give her a refund,
Kulaszewski handed Smith $6 from his pocket and both
parties walked away. Respondent contends this confron-
tation between Smith and Randolf was objectionable
conduct. 4
I conclude that the confrontation between Smith and
Randolf did not meet the Board's standards for creating
an atmosphere for fear and reprisal nor was it an appeal
to racial prejudice, such as to render free expression of
choice impossible. Accordingly, I do not find Randolfs
statement to Smith in this connection objectionable con-
duct. Moreover, as set forth above, Randolf is an em-
ployee and not a union agent. It is clear that under these
circumstances such conduct by an employee falls infinite-
ly below applicable Board standards for objectionable
conduct by an employee.
Kim Smith further testified, pursuant to leading ques-
tions put to her by Respondent counsel, that on one oc-
casion, sometime during the union campaign, Randolf
told her that if she crossed a union picket line she would
be hit by sticks and that she had to vote yes for the
Union. Smith also testified pursuant to leading questions
14 It could be argued that the payment of $6 to Smith by Supervisor
Kulaszewski was a grant of a benefit by Respondent and a violation of
Sec. 8(a)(1).
that, on another occasion, Randolf told her that Re-
spondent was giving the employees raises to keep them
from voting for the Union and that, with the Union, em-
ployees would have job security and, without a Union,
they could be terminated at any time. Randolf then asked
her if she was going to vote for the Union and Smith re-
plied she did not know.
Randolf credibly testified that she had but a single
conversation with Smith during the union campaign con-
cerning the Union. During this conversation she told
Smith that she would like her to vote for the Union but
whatever she did she should vote. Randolf specifically
denied stating to Smith she would lose her job if she did
not vote for the Union. She also denied telling Smith
that she would be hit by sticks if she crossed the union
picket line and that she had to vote for the Union. For
the reasons set forth immediately below, I credit Ran-
dolf.
As described above, I found Randolf to be a credible
witness.
Moreover, I find Smith to be a totally incredible wit-
ness, entirely unworthy of belief. I base this assessment
on several factors. During her testimony, Smith admitted
that her testimony in this hearing, under oath, would
have been different if certain persons present in the hear-
ing room, whose names Smith refused to disclose, were
not present. Such admission by Smith is tantamount to an
admission that her testimony was not truthful. Secondly,
Smith's testimony was directly contradicted by her
Board affidavit (which Smith, upon being shown her
statement, could not recall) wherein she stated that Ran-
dolf never spoke to her about the Union during the
entire union campaign, except to remind her to vote.
Moreover, Smith specifically denied in her Board affida-
vit that Randolf or any other employee told her that if
she did not vote for the Union she would lose her job.
Additionally, Smith's testimony was primarily obtained
by counsel for Respondent through extensive and de-
tailed leading questions necessitated by her poor recol-
lection. Smith further exhibited a poor recollection of
events when during cross-examination she denied attend-
ing any Respondent meetings or receiving any Respond-
ent literature. In this connection, it is admitted that Re-
spondent held weekly meetings at which all employees
attended and it distributed 20 separate copies of cam-
paign literature to all employees.
Employee Madeline Girgess, currently employed by
Respondent, testified that, during the union campaign,
she went to several union meetings. Pursuant to a series
of leading questions put to her by Respondent counsel,
Girgess testified that in her opinion, during the union
campaign, a serious division developed between black
and white employees, that black employees were con-
stantly trying to push the Union which caused a real di-
vision within the plant. She also testified, again pursuant
to leading questions by Respondent counsel, that the
Union used these tactics to divide employees along racial
lines and to enable them to win the election. Through a
series of further leading questions by Respondent coun-
sel, Girgess testified that the Union was trying to make
the blacks and whites come apart so the Union could
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
win the election. Girgess was unable to supply facts to
support her conclusory testimony alleged by Respondent
as objectionable conduct.
Girgess did testify that, at a union meeting, union rep-
resentative Ted Kenney, who is white, told her that the
Union was trying to create the impression that black
people were poor people and trying to convince all
black people to vote for the Union. Kenney further told
her that white people take advantage of black people and
do not give blacks an opportunity to become a boss. Gir-
gess also testified that Kenney told her that, if the Union
had a strike, she would lose her job and that if there was
a strike and she tried to go to work the Union would
stop her.
On cross-examination Girgess admitted that what
Kenney told her was that black people did not enjoy the
good jobs enjoyed by whites and that blacks, in order to
elevate themselves, had to work harder than whites. Gir-
gess further admitted during cross-examination that
Kenney told her that he believed blacks and whites
should be treated equally and fairly. Further, on.cross-
examination, Girgess repudiated her direct testimony and
admitted that Kenney had not told her that if there was
a strike she would lose her job. Rather, she admitted that
Kenney told her if there was a strike the Union would
give her strike money every week.
Kenney testified that he spoke to Girgess about a pos-
sible union strike during a union meeting which took
place about a year after the election. Kenney credibly
denied making a statement to Girgess or any employee
about attempting to create a situation where blacks and
whites would come apart so the Union could win the
election. Kenney further denied making a statement to
Girgess or any employees that black people in the plant
had to work harder than whites or that white people
would take advantage of blacks.
Girgess also testified that, at one point during the
union campaign, employee Ellen Garza told her that the
Union had good benefits and could get employees more
money and that she, Girgess, should vote for the Union.
She also told Girgess that the Union was strong and
going to win. Girgess testified that she told Garza that
she liked Respondent without a union and that Garza re-
sponded that if she, Girgess, did not vote for the Union,
maybe something was going to happen, like she could
not find her car or something like that.'
Girgess further testified that, following this conversa-
tion with Garza, she spoke to other employees, whose
names she refused to disclose, but who she claims told
her that the Union was Mafia oriented.
Girgess additionally testified that, sometime during the
campaign, she had a conversation with Loretta, a black
employee, who told her the Union was good but that if
there was a strike she would have to go on strike. Gir-
gess stated that she would work rather than strike and
Loretta replied that the Union would stop her-nobody
would be able to work during the strike.
I totally discredit Girgess' entire testimony for the fol-
lowing reasons. During the course of Girgess' testimony,
Girgess admitted that her testimony would have been
I' Union counsel stated the Union was unable to produce Garza to tes-
tify because they were unaware of her present address.
different if union official Harold Morrison and employee
Elestine Randolf were not present in the hearing. Such
admission is sufficient in my opinion to discredit her
entire testimony."' Secondly, Girgess' recollection of the
facts was so vague throughout the course of her entire
testimony that almost all of her testimony was obtained
through extensive leading questions put to her by Re-
spondent counsel. Additionally, during cross-examina-
tion, Girgess denied that Robert Giessler, Respondent's
president, or any other Respondent representatives at
any time during the entire union campaign, spoke to the
employees concerning the Union either singularly or in
groups, or distributed any campaign literature to employ-
ees. It is admitted by Respondent that weekly meetings
were conducted by Giessler and other Respondent repre-
sentatives which all employees attended and that, during
the course of the campaign, Respondent, distributed ex-
tensive antiunion literature to all employees. Girgess' in-
ability to recall such Respondent meetings and literature
suggests either a poor recollection or a blatant hostillity
toward the Union. In either event, it sheds serious doubt
as to her credibility. Additionally, an affidavit taken by
Respondent counsel shortly after the election did not in-
clude anything regarding statements by Kenney or
Garza. Further, during cross-examination by both coun-
sel for the Union and the General Counsel she was fre-
quently evasive, nonresponsive, and flagrantly hostile.
For all of the above reasons, I conclude that Girgess'
testimony is totally incredible and entirely unworthy of
belief.
Respondent was unable to present any other witnesses
who could give direct testimony concerning threats, in-
timidation, or appeals to racial prejudice during the cam-
paign.1 7 Respondent's counsel did present the following
witnesses who gave hearsay or subjective testimony as to
threats, intimidation, or appeals to racial prejudice by
union agents or employees.
Respondent Supervisor Ed Witkowski testified that,
sometime during the latter part of March or early April,
he was talking with employee Jorge Chavez when an-
other employee, Kathy Torrez, joined them. Torrez then
stated "that Spanish speaking employees were afraid be-
cause they had been threatened." Witkowski was unable
i' Under a sequestration rule imposed by me during the hearing pursu-
ant to a motion by counsel, union representative Harold Morrison and
employee Randolf were persons authorized to be present at all times
during the course of this hearing.
"1 Objections to such testimony were made by counsel for the General
Counsel and counsel for the Union. Respondent counsel contended that
the rule of evidence applicable to representation proceedings set forth in
Sec. 102.66 of the Board's Rules and Regulations provide in part that
"the Rules of Evidence prevailing in courts of law or equity shall not be
controlling" and would permit introduction of such hearsay and subjec-
tive testimony. Upon listening to the hearsay and subjective testimony in-
troduced by Respondent pursuant to this section, I sustained objections
by the General Counsel and by counsel for the Union to the introduction
of such testimony, based on my conclusion that such testimony was so
vague and conclusory as to be totally worthless and unreliable. Such ob-
jections were sustained by me with the further ruling that whether pursu-
ant to the rules of evidence followed traditionally in unfair labor practice
proceedings, or whether pursuant to rules of evidence set forth in Sec.
102.66 as applicable to representation proceedings, the testimony elicited
was so unreliable, worthless, and so subjective as not to have any proba-
tive value.
530
VITEK ELECTRONICS
to testify as to what threats were made or who made
such threats.
Witkowski also testified that, on being promoted to a
shift supervisor, sometime during the end of March, he
observed that, during coffee and lunch breaks, employees
generally wandered freely through the plant in little
groups and were, to his observation, friendly. However,
commencing with the beginning of the union campaign,
the Spanish-speaking employees began congregating to-
gether in a single group. This appeared to suggest to
Witkowski that the members of the Spanish group did
not want to be singled out. Witkowski testified that he
observed such groupings of Spanish-speaking employees
a total of six times during the union campaign.
Supervisor John Kulaszewski, also called John K, tes-
tified that, sometime during the union campaign, he had
a conversation with employee Frank Chaves who told
him that Chaves had a conversation with employee
Brenda Blakely and that, during Chaves' conversation
with Blakely, employee Florence Davis approached
Chaves and Blakely and gave Blakely a dirty look.
David then told Blakely that she did not want Blakely to
talk to Chaves. Kulaszewski then testified that Chaves
told him that shortly afterward Davis told Blakely and
Chaves that the Union would take care of Blakely's baby
when she gave birth. (Florence Davis credibly testified
that she saw Blakely talking to Chaves and assumed it
might be about the Union and, because of Respondent's
regulations prohibiting employees talking about unions
on working time, she told Brenda she was not supposed
to talk about the Union on company time. Davis denied
any statement concerning the Union taking care of Bla-
kely's baby.)
John Kulaszewski also testified that he had several
conversations with employee Susan Boordman during
the union campaign and that, during such conversations,
she told him that she did not want a Union. Kulaszewski
then testified that, shortly before the election, he ob-
served Boordman wearing a union button. He asked
Boordman why she was wearing a union button and she
responded, "Do you think I'm crazy? Do you want me
to get killed?" She then told Kulaszewski that there was
a lot of tension in the Company. (It is noted that such
testimony was obtained as the result of an interrogation
by Kulaszewski, which could constitute an unlawful in-
terrogation within the meaning of Section 8(a)(1) of the
Act.)
Kulaszewski also testified that he had a conversation
with Supervisor Ed Witkowski who told him that one of
the Spanish employees felt he and other Spanish employ-
ees were being threatened. Kulaszewski was unable to
identify the Spanish employee who spoke with Wit-
kowski or those Spanish employees who felt they were
being threatened. Nor was Kulaszewski able to testify as
to the nature of the alleged threat.
Kulaszewski also testified that, on the day before the
election, employee Gita Patel, who was scheduled to
vote with the second-shift employees, asked him if she
could vote with the first-shift employees because she was
afraid. Kulaszewski was unable to testify as to why Patel
was afraid. (Gita Patel who testified as a witness for Re-
spondent during this hearing did not testify as to such re-
quest.)
After exhausting Kulaszewski's testimony counsel for
Respondent offered, as a past recollection recorded, from
Kulaszewski's affidavit, the following:
"Edward Robles [an employee] seemed to change
his personality about a week before the election.
Before that time Robles had not been afraid to
speak out about things. About a week before the
election however, he became scared and cautious
and did not want to talk about anything. This was
very unusual for him."
"Carmen Chavez is an employee on the third shift
at Vitek. On the day of the election, which I
worked all day, several black women employees
woke up Carmen from a nap which she was taking
at lunch time, and asked her to go to the lunch
room because they wanted to talk to her. I walked
into the lunchroom with Carmen and told Carmen
that I needed to discuss her vacation plans with her
and Carmen then left the lunch room with me.
Soon however, the black women employees told
Carmen to come back into the lunch room. Later
Carmen seemed very cold toward me, which was
unusual because we're good friends."
Supervisor Ed Conquest testified that about 3 weeks
prior to the election he had a conversation with employ-
ee Gita Patel, who told him that employee Pushpa Patel
(no relation to Gita Patel) had told her Gita Patel that
Pushpa Patel had been threatened by employee Elestine
Randolf. Conquest then testified that, following this con-
versation with Gita Patel, he asked employee Pragna
Patel (no relation to Gita or Pushpa Patel) if she (Pragna
Patel) was aware of threats to Pushpa Patel. Conquest
testified that Pragna Patel told him that Pushpa Patel
had told Pragna Patel that Pushpa Patel was threatened
by someone. According to Conquest, Pragna Patel did
not disclose to him the name of the employee who alleg-
edly threatened Pushpa Patel nor the nature of the
threat. Conquest then testified that, several days after his
conversation with Gita Patel and Pragna Patel described
above, he asked Pushpa if she had been threatened by
anyone and Pushpa Patel told him she was threatened
but she was not going to mention any names. Conquest
testified that during his conversation with Pushpa Patel
she appeared upset when he was talking to her.
Conquest also testified that, someone shortly before
the election, during a conversation with employee Pat
Hriczko, Hriczko told him that she intended to vote
against the Union. A few days later Conquest observed
Hriczko wearing a union button and asked her why she
was wearing it. Hriczko told him she felt safer and was
afraid not to wear the union button. Conquest testified
that during this conversation Hriczko appeared to be
afraid. (It is noted that such interrogation of Hriczko by
Conquest could constitute an unlawful interrogation in
violation of Section 8(a)(1) of the Act.)
Conquest also testified that, during the election cam-
paign, he questioned about 40-45 employees on his shift
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asked them whether they were intimidated or har-
assed by the Union. He admitted that no employees told
him of any intimidation, but about 30 of them informed
him that they felt "tension."
Supervisor Leon Shorey testified that sometime during
mid-May employee Kim Smith asked him if she was
going to lose her job if she voted for the Union. Shorey
asked her why and Smith replied she was told by other
employees (whom she did not name) that she would lose
her job unless she voted for the Union.
Shorey also testified that, several days before the elec-
tion, he noticed employee France Gangitano wearing a
union button. Shorey asked Gangitano why she was
wearing a union button and Gangitano replied she had to
wear it or else. (It is again noted that such interrogation
of Gangitano could cosntitute an unlawful interrogation
in violation of Section 8(a)(1) of the Act.) Shorey also
testified that sometime in April he had a conversation
with employee Marcello Robles where Robles indicated
he was not in favor of a union. Shorey then testified that,
in mid-May, Robles told him he was going to be voting
for the Union because there would be trouble for the
Spanish employees if he did not. (There was no evidence
submitted as to what trouble Robles was allegedly refer-
ring to.)
Employee Kim Smith testified that, sometime during
the union campaign, employee Pat Hriczko told her that
she, Hriczko, spoke to employee Dorothy Owens who
told Hriczko that, if Hriczko crossed the picket line, she
would be hit.
Smith also testified that, sometime during the cam-
paign, she was told by Pragna, Pushpa, and Gital Patel
that, if they crossed the picket line, they would be hit.
(In view of my findings that Kim Smith is a totally in-
credible and unreliable witness as described above, I
would additionally discredit this hearsay testimony.)
Pragna Patel testified that, sometime during the cam-
paign, she had a conversation with Pushpa Patel during
which conversation Pushpa told her and Gita Patel that
Pushpa Patel does not talk about the Union because em-
ployee Elestine Randolf had told Pushpa Patel that, if
she sided with Respondent or voted for Respondent, the
Union would give her a hard time. Pragna Patel further
testified that, during this conversation with Pushpa Patel,
Pushpa appeared to be afraid. (Elestine Randolf testified
that, during the election campaign, she did indeed speak
to Pushpa Patel concerning the Union. During a conver-
sation with Pushpa Patel, she told her that employees
were having a "hard time" with no union to represent
them but that with a union the employees would enjoy
greater benefits and seniority would mean something.
Randolf further testified that during this conversation she
asked Pushpa to please vote in the upcoming election.)
By an offer of proof, Respondent's attorney contends
that Gita Patel would have testified that she, Gita Patel,
knew Pragna and Pushpa were afraid of the Union be-
cause they were unusually quiet and never talked about
the Union during the union campaign. By further offer
of proof, Respondent's attorney contends Gita Patel
would have testified that other employees were also
afraid of the Union generally based on her observation of
their general demeanor.
Carol Falcone, employed by Child Craft as a person-
nel manager (Child Craft was subpoenaed by Respondent
concerning Respondent's objection as to an alleged mis-
representation of Respondent wages described below),
testified that she was present on January 6, the opening
day of this hearing pursuant to a subpoena served upon
her by Respondent counsel, and that seated in the hear-
ing room was a woman who Falcone assumed was a
former employee of Respondent, talking to another
woman seated next to her about the pending hearing and
the Union generally. Falcone testified that, during this
discussion, the women whom she assumed to be a former
Respondent employee stated to the other women, "Re-
member when they made us wear the buttons." The
other women responded, "I don't remember any of
that," and according to Falcone insinuated that she
would testify at the hearing that she did not remember it
and that it was not important. (Falcone was unable to
identify any of the individuals referred to above.)
Respondent contends that the first paragraph of a
union leaflet distributed by employees on April 26 was
designed to and did intimidate employee voters.
The paragraph alleged to have created such intimida-
tion is set forth as follows:
As a result of your confidence in our Union, the
IUE, AFL-CIO, we were able to get an election to
be held on THURSDAY, JUNE 7, 1979 to be con-
ducted and supervised by the U.S. National Labor
Relations Board. This election will be by secret
ballot, which means that no one will ever know
how you voted. All Vitek employees in the bargain-
ing unit as of April 27, 1979 are eligible to vote,
whether they are U.S. citizens or not." [Emphasis
added.]
When counsel for Respondent questioned Morrison as
to why this paragraph was included in the April 26 leaf-
let, Morrison credibly and without contradiction testified
that a number of employees had informed him at a union
meeting that company supervisors had told them that, if
they did not vote against the Union, they could be de-
ported.
I find nothing contained in the above paragraph to be
intimidating in any manner. The objected-to paragraph
merely sets forth the date of the scheduled election and
informs all empoyee voters that the vote will be a secret-
ballot vote and that all employees whether U.S. citizens
or not, are entitled to exercise their right to vote if they
were employed as of April 27, 1979. Moreover, when
questioned as to why it was necessary to include the
phrase "whether U.S. citizens or not" Morrison credibly
testified, without contradiction, that the sentence was
added because of concern expressed to Morrison by
some of the voters about threats of deportation made by
Respondent's supervisors.
I do not find the paragraph above, or any part thereof,
to be threatening, coercive, or intimidating. Accordingly,
I do not find the above leaflet to constitute objectionable
conduct by the Union.
On June 5, the Union rmailed the following leaflet to
all employees:
532
VITEK ELECTRONICS
Dear Friends:
As this election campaign comes to a close, I
would like to express my sincere appreciation to all
Vitek employees for the cooperation and under-
standing you have shown us.
We are hopeful that the type of campaign con-
ducted by the union will lead to a better life for
each of you. The election on Thursday will be your
opportunity to assure your independence and digni-
ty for the future.
As a black man myself, I have learned the hard
way that nothing is handed to anyone on a silver
platter and that we are conditioned from childhood
to struggle to get to first base.
The history of the United States shows that all of
us at one time or another were minorities and have
had to struggle to make progress for ourselves and
our children.
As a result of the efforts of unions like the IUE-
AFL-CIO, we have been able to join together,
shoulder to shoulder, and make our gains together
in the face of attempts by companies to keep us
apart and thereby keep us all down.
This has also been the case at Vitek. Workers
have been separated into different shifts and on to
different types of jobs in order to keep us apart so
that the company would have the advantage over
all of us.
By bringing the IUE in, we expect to bring the
Vitek employees together in one strong union with
proper representation for all and a common pro-
gram to be negotiated with the company for the
benefit of all.
As some of you know, my son just graduated
from Duke University. For four years, he played on
the Duke basketball team and his play has been fol-
lowed by scouts from the NBA.
1, myself, am a basketball player and resent the
fact that the company, in putting up a basketball
court behind the plant, would use it to try to influ-
ence votes in this election.
Ever since IUE came on the scene, it is obvious
to all that the company had been "born again" and
in order to defeat the union is offering all sorts of
tidbits for the time being, such as basketball, softball,
free drinks, disco, etc.
From my personal observation, the company
cannot win the vote of Vitek workers through these
obvious handouts.
When you vote on Thursday, there's only one
point at issue and that is the future of yourself and
your family. By voting YES for IUE, your wages,
your conditions on the job, and your insurance are
all protected through a negotiated IUE contract.
Without it, you will go back to the "good old
days" before IUE came on the scene and the com-
pany won't even have to offer you softball or soft
soap.
I look forward to our working together for a
long time to come.
In connection with this letter, Respondent counsel
contends that the following paragraphs were designed to
create an atmosphere of fear, divisiveness, and racial ten-
sion among Respondent employees.
"As a black man myself, I have learned the hard way
that nothing is handed to anyone on a silver platter and
that we are conditioned from childhood to struggle to
get to first base."
"As a result of the efforts of unions like IUE-AFL-
CIO, we have been able to join together, shoulder to
shoulder, and make our gains together in the face of at-
tempts by companies to keep us apart and thereby keep
us all down."
"This has also been the case at Vitek. Workers have
been separated into different shifts and on to different
types of jobs in order to keep us apart so that the Com-
pany would have the advantage over all of us."
Respondent further contends that the following para-
graphs set forth in the Morrison letter were false and im-
plied that employees would lose benefits by voting for
Respondent:
"Even since IUE came on the scene, it is obvious to
all that the company has been "born again" and in order
to defeat the union is offering all sorts of tidbits for the
time being, such as basketball, softball, free drinks, disco,
etc."
"From my personal observation, the company cannot
win the vote of Vitek workers through these obvious
handouts."
Viewing the entire letter to the employees as a whole
and each paragraph separately, I find nothing objection-
able contained therein. I find no paragraph nor any sen-
tence therein which would, when viewed in the context
of the entire letter, intimidate, coerce or appeal to racial
hatred or tension among employees. Rather, I conclude
that the letter exorts "all" employees to "join together
shoulder to shoulder" with the Union as their common
representative in order to achieve improvements in
working conditions for the benefit of all employees re-
gardless of race. I conclude that the reference by Morri-
son to himself, as a black man, who was conditioned
from childhood to struggle in order to get ahead, is
merely a personal example, common to minority popula-
tions throughout the United States. As set forth and de-
scribed above, Respondent employee complement con-
sisted of males and females of various racial origins. This
letter appeals to all of them to join together through the
Union in order to achieve a common improvement for
all employees in working conditions. It does not appeal
to any one race nor does the effect of the letter in any
way place or attempt to divide one race against another.
With respect to the paragraph which sets forth: "...
workers have been separated into different shifts and on
to different types of jobs in order to keep us apart so that
the company would have the advantage over of all us,"
Morrison credibly and without contradiction testified in
response to Respondent counsel's questions that this
paragraph was specifically inserted in the letter as the
result of a complaint by employee Dorothy Kmiec, a
white employee, who complained to union representative
Kenney that her supervisor asked her why she did not
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfer to another shift and work with her own kind.
(Kmiec was employed on Respondent's second shift
which was virtually an all-black shift.) Morrison testified
that the Union felt that such attempts at racial division
by Respondent was wrong and, for this reason, the para-
graph was inserted in Morrison's letter. Respondent did
not call either Kmiec or Kmiec's supervisor or otherwise
rebut Morrison's testimony in this connection. In view of
this, I credit Morrison's testimony as to the reason for
the insertion of this paragraph and do not find that such
paragraph in any way coerced, intimidated, or promoted
any racial divisiveness.
With respect to the paragraph in the Morrison letter
referring to the basketball, softball, free drinks, disco of-
fered by Respondent as a means of defeating the Union,
Respondent did not dispute that such enticements were
offered. That the Union concludes that such enticements
were offered for the purpose of encouraging employees
to vote for Respondent is well within the reasonable
limits of campaign propaganda.
I therefore conclude that, when viewed in its entire
context, no one could reasonably construe that this letter
threatened, coerced, or intimidated employees or ap-
pealed to racial prejudice. Accordingly, I find no merit
in Respondent's contention that such letter constitutes
objectionable conduct on the part of the Union.
Respondent also contends that the assignment of Mor-
rison and Rivera, a black and Hispanic respectively, to
head the Union's organizing campaign coupled by the
subsequent assignments of Kenney and Deary, white
male organizers and Rebor, a white female organizer,
was designed to promote racial divisiveness in the cam-
paign. I find such contention totally preposterous and
wholly without merit. The only significance of such as-
signment is that it tends to establish that the Union does
not discriminate with regard to its hiring of union repre-
sentatives.
Accordingly, I conclude that Respondent has failed
entirely to establish that the Union has engaged in any
objectionable conduct which would threaten, intimidate,
or coerce employees or any conduct which would tend
to or promote racial division, tension, and prejudice in
connection with its organizing campaign. I therefore find
all Respondent's contentions to this effect totally without
support and merit and all Respondent's objections there-
to.
F. The Union's Alleged Misrepresentation Concerning
the Cost-of-Living Increase
Objection 6
Harold Morrison, union representative, credibly testi-
fied without contradiction that, during the course of the
Union's campaign, at union meetings held throughout the
course of the campaign, he informed employees attend-
ing such meetings that the Union had negotiated collec-
tive-bargaining agreements with other employers which
contained cost-of-living protection clauses. During a
union meeting held on April 7, Local union representa-
tives from White Westinghouse, a union shop in the area,
enumerated various benefits provided for in their collec-
tive-bargaining agreement. Among the benefits enumer-
ated was their cost-of-living provision. The details of
such provision or of similar provisions contained in other
collective-bargaining agreements were not discussed at
this or any other union meeting. According to Morri-
son's credible testimony, employees present at these
meetings did not question union representatives concern-
ing the details of the cost-of-living protective clauses
provided by the Union in other collective-bargaining
agreements. Moreover, during the course of these meet-
ings such cost-of-living provisions were only one of
many union benefits enumerated. According to Morri-
son's testimony, a total of over 70 different Respondent
employees were present during the course of these six or
seven union meetings where the cost-of-living protective
clauses were discussed.
A union leaflet issued on April 11, 1979, consisting of
two pages supports Morrison's testimony. The leaflet in a
paragraph entitled "Cost of Living Out of Sight" sets
forth as follows:
The U.S. Department of Labor announced last
month that the cost of living is rising at a yearly
rate of over 15%. If this keepsup, the Vitek em-
ployees who can't make ends meet will now go fur-
ther in the hole.
More than ever, Vitek employees need a union to
negotiate substantial wage increases and cost of living
protection, now. That is why the overwhelming ma-
jority of Vitek employees have signed up with the
IUE. [Emphasis added.]
On June 4, the Union distributed the leaflet, which is
alleged to constitute the Union's misrepresentation con-
cerning the cost-of-living increase.
GASOLINE PRICES UP 35%
FOOD PRICES UP 15%
EVERYTHING'S UP
YET THE COMPANY PROVIDES
NO COST OF LIVING
PROTECTION AT VITEK
Every day in every way, the money we make at
Vitek buys less and less. Latest figures issued by
government indicate that the cost of living is going
up at a rate of 14% yet the Vitek Company pro-
vides no cost of living protection for its workers,
another reason why we need a union at Vitek.
In other plants in this area, where the people
have previously voted-in the IUE, the union has ne-
gotiated cost of living protective clauses.
Under their union contract
* AT EDISON PRODUCTS (WHITE-WEST-
INGHOUSE), EDISON, N.J.
* AT GULTON INDUSTRIES, METUCHEN,
N.J.
* AT DELCO BATTERY, NEW BRUNS-
WICK, N.J.
the wages of IUE members are increased regularly,
throughout the year, to keep pace with the cost of
534
VITEK ELECTRONICS
living increase announced by the U.S. Department
of Labor.
This is the kind of protection we need at Vitek
where wages are low enough without being further
"cut" by runaway prices.
VOTE YES FOR IUE - IT PAYS TO BELONG
Yes No
FLASH
A federal court has just upheld the IUE-AFL-
CIO lawsuit charging that President Carter's 7%
wage controls are illegal.
This is an important step forward in the union's
fight to see that workers at plants such as Vitek are
not held down at this time when the cost of living
is going up at a rate of 14%.
IUE has performed a service, not just for its own
members, but for workers throughout the country,
by fighting against wage controls. It shows the
strength of our union and our concern for the needs
of working people.
Morrison testified that, following the distribution of
this leaflet, no employee approached him with questions
concerning the leaflet.
Respondent contends that the phrase contained near
the end of that leaflet, "to keep pace with the cost of
living increase," constitutes a material misrepresentation.
Respondent's contention is that the phrase, "to keep pace
with," implied to employees that the Union's cost-of-
living protection clause would equal, to the penny, the
actual rise in the cost of living as reflected by the Con-
sumer Price Index. Respondent further contended that
when the cost-of-living increase provisions provided for
in the Edison, Gulton, and Delco contracts were calcu-
lated and compared with the actual cost of living reflect-
ed by the Consumer Price Indexes during the period of
these collective-bargaining agreements up and until June
7, such cost-of-living protection provided for in such
agreements substantially failed to equal the actual cost of
living. To substantiate this contention, Respondent called
Donald Reilly as an expert witness. Reilly is employed
by ACT Industries, and has had at least 12 years' exten-
sive accounting and collective-bargaining experience.
There is no question but that Reilly is an expert in the
area. Reilly obtained copies of the Edison, Gulton, and
Delco collective-bargaining agreements described in the
above union leaflet and made certain calculations, de-
scribed below, using the cost-of-living provisions provid-
ed in the respective collective-bargaining agreements and
the lastest available data from the National Consumer
Price Indexes, as a basis for his calculations.
In Reilly's calculations he initially took for the Edison,
Gulton, & Delco agreements the lowest wage rate pro-
vided for in each agreement and calculated the total
cents per hour lost to inflation as determined by the
Consumer Price Index. His initial calculation did not
take into account the across-the-board wage increases
(ACB) provided for in the collective-bargaining agree-
ments. He thereafter made a second calculation where he
included the across-the-board wage increase (ACB) pro-
vided for in the respective collective-bargaining agree-
ments. Similar cost-of-living calculations were made by
Reilly using the highest wage rate provided in the re-
spective agreements as well as a wage rate which was
closest to the numerical average wage rate provided for
in the respective agreements. 18 In all his calculations
made on behalf of Respondent, Reilly made an assump-
tion that the initial across-the-board increase (ACB) pro-
vided for in the respective collective-bargaining agree-
ments was intended to make up for the third year of the
prior agreements, i.e. the 1973-1976 agreements. Reilly
admitted that he did not know whether the prior 1973-
1976 agreements for the above three companies provided
for across-the-board increases during the last year of the
agreement or when such increases were provided. Reilly
further admitted that he did not know whether the par-
ties to these agreements intended that the initial across-
the-board increase was to provide for expected cost-of-
living increases during the first year of the new agree-
ment or to make up for past cost-of-living increases oc-
curring during the prior agreement.
Reilly readily conceded that another competent expert
with experience similar to his own, using the same col-
lective-bargaining agreements and Consumer Price In-
dexes, could have reached different calculations by
making different, but equally valid, assumptions.
The result of Reilly's calculations discussed above are
set forth below. The first column of figures shows the
total cents per hour lost to inflation without including
ACBs from 1976 through June 1, 1979. The second
column shows the total cents per hour lost to inflation
including ACBs from 1976 through June 1, 1979:'9
Edison Agreement
Low wage
Average wage
High wage
Gulton Agreement
Low wage
Average wage
High wage
Delco Agreement
Low wage
Average wage
High wage
S.66 S.16
.78 .28
1.28 .78
S.60 .12
.73 .25
1.03 .55
S.13 0
.28 0
.56 0
On cross-examination, Reilly was asked by counsel for
the Union to calculate, in the same manner, total cents
per hour lost to inflation but with the assumption that
the initial across-the-board increase provided for in the
respective collective-bargaining agreements were to be
18 The Edison collective-bargaining agreement in question commenced
on September 1979, the Gulton agreement in August 1976, and the Delco
agreement in November 1976.
lg These calculations are based on Reilly's assumption that the initial
across-the-board increases provided in the respective collective-bargain-
ing agreements would be applied to make up cost-of-living increases in-
curred in the last year of the 1973-1976 agreements and that the ACBs
provided for at the beginning of the second year of the 1976-1979 agree-
ment would be applied to the initial year of the agreements and that the
third ACB would be applied to the second year of the agreements.
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied to the first year of the agreement, the second
across-the-board increase to be applied for the second
year of the contract, and the third across-the-board in-
crease to be applied for the third year of the contract.
Making such calculations using this assumption, Reilly
reached the following results for the 1976-1979 contract
period set forth below showing the cents per hour lost to
inflation with ACB as described above:
Edison Agreement
Low wage
Average wage
High wage
Gulton Agreement
Low wage
Average wage
High wage
0
0
.14
0
0
.21
Delco Agreement-all employee wages exceeded
Consumer Price Index (CPI)
In connection with Respondent's contention that the
cost-of-living calculations should be computed without
including ACBs, Reilly admitted on cross-examination
that he was not aware of any contract within his experi-
ence which provided for no across-the-board wage in-
creases but rather only for a cost-of-living adjustment in-
creases (COLA). Reilly further admitted on cross-exami-
nation that, throughout his experience in negotiating col-
lective-bargaining agreements, across-the-board wage in-
creases and COLA increases comprised the total cost-of-
living protection provided for in a particular collective-
bargaining agreement.
Michael Giuliano, an International union representa-
tive, who has negotiated collective-bargaining agree-
ments on behalf of the Union for the past 4 years, testi-
fied that, throughout negotiations in which he had par-
ticipated on behalf of the Union, across-the-board wage
increases and COLA increases were integrally related. In
this connection, Giuliano testified as did Reilly that he
knew of no collective-bargaining agreement which pro-
vided for across-the-board wage increases, but rather
only COLA increases.
Giuliano further testified that selecting a low, average,
and high rate of pay as Reilly did, without taking into
account the number of employees earning such pay rates,
is an inaccurate and unreliable manner of calculating
cost-of-living increase comparisons. This is because the
overwhelming majority of employees in any particular
company tend to be in the low wage classifications; ex-
perience establishes that there are very few employees in
the high wage classifications. Giuliano testified in this
connection that the significant figure is the wage rate
earned by the mean average employee, which is obtained
by multiplying the number of employees by their particu-
lar rate of pay, adding up the total, and dividing this
total by the number of employees.
To apply a hypothetical application to Giuliano's rea-
soning we could assume a plant of 100 employees with a
low rate of $4 an hour, an average rate of $6 an hour,
and a high rate of $8 an hour. Assume hypothetically
that 100 out of the 100 employees are earning the low
rate, it becomes readily apparent that Reilly's calcula-
tions as to the average and high wage rates are totally
meaningless.
Taking the Gulton plant as an example, and comparing
Reilly's calculations concerning the Gulton collective-
bargaining agreement with Giuliano's reasoning, it be-
comes obvious that Reilly's calculations are meaningless.
In the Gulton contract, Reilly had selected a low wage
rate during the first year of such contract as being S4.21
per hour, the average rate being $4.79 per hour, and the
high rate as $6.08 per hour. In fact, Gulton employs 94
employees. The overwhelming majority of these employ-
ees are in the lowest wage rate. Applying Giuliano's
mean average formula, the mean average hourly rate of
all Gulton employees was calculated to be 4.205 cents
per hour. It thus can be seen in connection with the
Gulton contract, as with the hypothetical situation de-
scribed above, that applying Giuliano's logical reasoning,
which takes into account the actual number of employ-
ees and their actual pay rate, Reilly's calculations as to
the average and high rates would be totally inapplicable.
The applicable Board law as to misrepresentations pro-
vides that the objecting party carries the "heavy burden"
of proving that there has been "Prejudicial unfairness in
the election." NLRB v. Claxton Poultry Co., 581 F.2d
1133, 1135 (5th Cir. 1978). This heavy burden (NLRB v.
Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir.
1969)):
. . . is not met by proof of mere misrepresentations
or physical threats. Rather, specific evidence is re-
quired, showing not only that the unlawful acts oc-
curred, but also that they interfered with the em-
ployees' exercise of free choice to such an extent
that they materially affected the results of the elec-
tion.
With respect to the alleged misrepresentations, Re-
spondent must do substantially more than prove that the
opposing party has made a misrepresentation in order to
establish objectionable conduct sufficient to require an
election be set aside. As the Board stated in Hollywood
Ceramics Co., 140 NLRB 221, 224 (1962), the leading
case on misrepresentations:
We believe that an election should be set aside
only where there has been a misrepresentation or
other similar campaign trickery, which involves a
substantial departure from the truth, at a time which
prevents the other party or parties from making an
effective reply, so that the misrepresentation,
whether deliberate or not, may reasonably be ex-
pected to have a significant impact on the election.
However, the mere fact that a message is inartisti-
cally or vaguely worded and subject to different in-
terpretations will not suffice to establish such mis-
representation as would lead us to set the election
aside. Such ambiguities, like extravagant promises,
derogatory statements about the other party, and
minor distortions 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
536
VITEK ELECTRONICS
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 mis-
representation might have occurred in connection
with an unimportant matter so that it could only
have had a de minimis effect. Or, it could have been
so extreme as to put the employees on notice of its
lack of truth under the particular circumstances so
that they could not reasonably have relied on the
assertion. Or, the Board may find that the employ-
ees possessed independent knowledge with which to
evaluate the statements.
See also General Knit of California, 239 NLRB 619, 620
(1978), where the Board overruled the standard of
review adopted in Shopping Kart Food Market, 228
NLRB 1311 (1977), and expressly returned to the stand-
ards articulated in Hollywood Ceramics.
In other cases, the Board and the courts have elaborat-
ed on this standard, and under these decisions an election
will be set aside only where the following conditions are
met:
1. The statement must be a misrepresentation.
2. The statement must be a substantial departure from
the truth. Thus, the Board will not set aside an election
as a result of the kind of rhetorical or exaggerated state-
ments that are typical of any campaign. See, e.g., Russell-
Newman Mfg. Co., 158 NLRB 1260, 1264 (1966) (Board
will not set aside election where message conveyed in
election propaganda is merely "inartistically or vaguely
worded and subject to different interpretations"; union
literature found to be "at worst . . . an exaggeration of
fact, subject to different interpretations"); and NLRB v.
Sauk Valley Mfg., Co., 486 F.2d 1127, 1131 (9th Cir.
1973) ("a certain degree of inaccuracy and ambiguity" is
the norm in election propaganda, inasmuch as "prattle
rather than precision is the dominating characteristic of
election publicity").
3. The statement must be made sufficiently close to the
election so that the other party does not have time to
make an effective reply. Generally, elections will be set
aside only where a statement was made just a day or two
before the election. See, e.g., Kalvar Corp., 204 NLRB
805 (1973), and Beaird-Poulan Division, 247 NLRB 1365
(1980), affd. 649 F.2d 589 (8th Cir. 1981) (company was
able to respond adequately to union's statements about its
contract with another employer, even though union's
untrue statements were made less than 24 hours before
the polls opened). Even if a misrepresentation is made in
the final days of the campaign, the election will not be
set aside if the subject of the misrepresentation had been
raised earlier in the campaign. See, e.g., Elmcrest Conva-
lescent Hospital, 173 NLRB 38 (1968). Finally, in order to
reply effectively, it is not necessary that a party be able
to refute each element of the misrepresentation in detail.
See Lipman Motors v. NLRB, 451 F.2d 823, 826 fn. 6 (2d
Cir. 1971). ("The Company argues in its brief that there
was insufficient time to reply because '[t]he pension plan
involved the laundry worker's Union and existed, if at
all, in an industry totally unrelated to that of the Em-
ployer here.' But it was necessary for the Company to
confirm all the details of the Union's plan before it re-
plied.")
4. The misrepresentation must be one which would be
reasonably expected to have an effect on the election.
Generally an election will not be set aside unless "the
employees would tend to give particular weight to the
misrepresentation because it came from a party that . . .
was in an authoritative position to know the true facts,"
Gypsum Co., 130 NLRB 901, 905 (1961), or the employ-
ees would believe the speaker had "special knowledge."
NLRB v. A. G. Pollard Co., 393 F.2d 239, 242 (Ist Cir.
1968).
Conversely, an election will not be set aside where the
employees possess independent knowledge with which to
evaluate the misstatement. See, e.g., NLRB v. S. Prawer
& Co., 584 F.2d 1099, 1102 (Ist Cir. 1978) (employer's
objection to alleged misrepresentation by union of the
circumstances behind an employee's discharge overruled
because "even had the Union misrepresented the situa-
tion, this was an instance where the employees would
have no reason to believe the Union's information was
any more accurate than their own and that the employ-
ees could accordingly assess any such union representa-
tion"); U.S. Gypsum, supra, 130 NLRB at 904 ("[W]hen
one of the parties deliberately misstates material facts
which are within its special knowledge, under such cir-
cumstances that the other party or parties cannot learn
about them in time to point out the misstatements, and
the employees themselves lack the independent knowledge to
make possible a proper evaluation of the misstatements,
the Board will find that the bounds of legitimate cam-
paign propaganda have been exceeded and will set aside
an election." Emphasis added.) NLRB v. O. S. Walker
Co., 469 F.2d 813, 817 (lst Cir. 1972), and El Monte Tool
& Die Casting v. NLRB, 633 F.2d 160, 163 (9th Cir.
1980).
Respondent contends that the leaflet distributed by the
Union on June 4, 1979, which provides that the Union
has negotiated cost-of-living protective clauses at Gulton,
Edison, and Delco, wherein the wages of its members
are increased regularly throughout the year, "to keep
pace with the cost of living increase announced by the
U.S. Department of Labor," constitutes a material mis-
representation. Respondent specifically contends that the
phrase therein, "to keep pace with" implied to employ-
ees that the Union's cost-of-living protection clauses in
these agreements keep pace exactly equal to the cost of
living set forth in the Consumer Price Indexes.
The initial question that must be considered is whether
the leaflet contains a misrepresentation. In order for Re-
spondent to prevail, it has the heavy burden of establish-
ing the statement was a misrepresentation. NLRB v.
Claxton Poultry Co., supra; NLRB v. Golden Age Beverage
Co.; Hollywood Ceramics Co., supra. In order to meet this
burden Respondent must establish (a) that the phrase, "to
keep pace with the cost of living increase" reasonably
implied in the minds of employees that the cost-of-living
protection clauses contained in the Gulton, Edison, and
Delco agreements provided for cost-of-living increases
exactly equal to the Consumer Price Index and (b) that
such cost-of-living protective clauses contained in these
537
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreements substantially fail to provide cost-of-living in-
creases exactly equal to the Consumer Price Index.
I conclude for the reasons set forth below that Re-
spondent has utterly and completely failed to meet this
burden.
The first issue presented is whether the phrase, "to
keep pace with," contained in the Union's June 4 leaflet
distributed to employees reasonably implies cost-of-living
increases exactly equal to the Consumer Price Index. To
establish this, the union campaign with respect to this
issue must be examined in its entirety. In this connection,
the evidence established that cost-of-living protective
clauses were frequently discussed by the Union through
its representatives at various (6 or 7) union meetings at-
tended by over 70 employees. During these meetings, the
employees were informed generally, by different union
representatives, that the Union provided cost-of-living
protective clauses for various companies with whom
they had collective-bargaining agreements. There is no
evidence that during such meetings employees were in-
formed that these cost-of-living protective clauses pro-
vided cost-of-living protection equal to the Consumer
Price Index. When cost-of-living provisions were dis-
cussed, the employees raised no questions as to the de-
tails provided in the Union's cost-of-living protective
clauses. Moreover, in union literature distributed to the
employees on April 11, the Union as in their meetings
merely noted that Respondent's employees needed a
"Union to negotiate substantial wage increases and cost
of living protection." This leaflet did not in any way
suggest that such cost-of-living protection clause should
equal the Consumer Price Index.
Further, an examination of the June 4 leaflet itself fails
to establish that the Union was even attempting to
convey to employees the impression that their cost-of-
living protective clauses kept pace, whatever that phrase
means, with inflation. In this connection the bold, hand-
printed lettering at the top of the leaflet provides:
GASOLINE PRICES UP 35%
FOOD PRICES UP 15%
EVERYTHING'S UP . . .
YET THE COMPANY PROVIDES
No COST OF LIVING
PROTECTION AT VITEK
The first paragraph of the leaflet sets forth in a type-
writer size print that the wage provided by Respondent
provided for increasingly less purchasing power. The
second paragraph of the leaflet sets forth that at other
plants represented by the Union, the Union has negotiat-
ed cost-of-living protective clauses. It is only in the third
paragraph, near the end of the entire leaflet, in an innoc-
uous location, that the Union sets forth that the cost-of-
living clause in the Gulton, Delco, and Edison agree-
ments are designed "to keep pace with the cost of living
increase announced by the U.S. Department of Labor." I
therefore conclude that an examination of the entire leaf-
let reasonably suggests that the object of the leaflet was
not to convey to employees that the Union negotiated
cost-of-living protective clauses which equaled the Con-
sumer Price Index but, rather, that in view of increasing
prices, cost-of-living protection was important and that
the Union had negotiated cost-of-living protective
clauses in other collective-bargaining agreements.
Moreover, I conclude, for the same reasons set forth in
the paragraph above, that no employee reading this leaf-
let would interpret it in the manner contended by Re-
spondent.
As set forth above, the objecting party carries the
"heavy burden" of proving the misrepresentation. NLRB
v. Claxton Poultry Co., supra. Moreover, the Board will
not set aside an election because a message conveyed in
a campaign leaflet is "inartistically or vaguely worded
and subject to different interpretations." Russell-Newman
Mfg. Co., supra; Sauk Valley Mfg. Co., supra. At the very
least the objected-to language is ambiguous and subject
to different interpretations. Yet, Respondent, contrary to
the broad remand by the Third Circuit, and despite the
substantial number of witnesses called by Respondent
during this lengthy hearing, failed to introduce a single
employee witness to testify as to his interpretation of the
leaflet, or any other evidence to establish how the leaflet
was interpreted by the employees. 20
Assuming the Union's statements in its June 4 leaflet
were construed or Respondent contends, the Board has
allowed considerable latitude in such campaign propa-
ganda. In Ralvar Corp., 204 NLRB 805 (1973), the Board
held that a union handbill which stated that it provided
hospitalization insurance which provided that "room and
board are paid in full regardless of rate" was not a mate-
rial misrepresentation although such benefit was limited
in the case of private room accommodations to the aver-
age semiprivate room rate for the hospital. The Board,
0o It would appear that the Third Circuit remand provided that Re-
spondent should be allowed to introduce testimony by employees as to
their interpretation of the union leaflet. In this connection, the remand,
653 F.2d 785, 793 (1981), provided:
We similarly reject the RD's resolution of the COLA issue on the
ground that it involved no "substantial departure from the truth." In
concluding that the Union's "news" handbills were subject to "vary-
ing interpretations," the RD drew his ultimate distinction between
truth and falsity by resort to a specious semantic distinction. As a
result, we do not believe that he could properly determine on the
basis of his investigation that, as a factual matter, the audience to
which it was addressed would adopt an interpretation other than
Vitek's [Respondent]. In view of the significance of the alleged dis-
crepancy and our own skepticism that the item would be interpreted
as other than a misrepresentation, we conclude that the RD should
not have reached his decision without first affording Vitek [Re-
spondent] a hearing in which to challenge the RD's assumption that
the handbill would be interpreted by its intended audience consist-
ently with the truth of the underlying facts.
The court also stated at 791:
For purposes of determining whether a genuine issue of fact exist-
ed as to the accuracy of the statement [a reference to the "keep pace
with the cost of living increase" issue], we have difficulty, to say the
least, appreciating this subtle distinction. We think such subtlety
would be even less appreciated by employees in the heat of an elec-
tion campaign.
That the remand provided such latitude is confirmed by the Third Cir-
cuit's recent decision, Jamesway Corp. v. NLRB, 676 F.2d 63 (1982),
where the court stated at 72-73:
In other cases, remand has been necessary because the nature of the
misleading statements made it unclear whether they had affected the
election. Thus in Vitek Electronics v. NLRB, 653 F.2d 785 (3d Cir.
1981), we remanded to the Board because the alleged misrepresenta-
tions were ambiguous and may not have been misunderstood by em-
ployees.
538
VITEK ELECTRONICS
holding that such handbill was not a misrepresentation
within the meaning of Hollywood Ceramics, supra, held
that, in view of the general practice in group hospitaliza-
tion insurance plans to limit full coverage for hospital
room and board expenses to semiprivate accommoda-
tions, it doubted that employees reading the union hand-
bill would unquestioningly have accepted it as applicable
to private hospital room accommodations. I conclude the
same rationale is applicable to the instant case. Reilly,
Respondent's expert in the area, admitted he was un-
aware of any cost-of-living protective clause which was
capped to the level of the Consumer Price Index. Fur-
ther, Respondent failed to establish the existence of a
single collective-bargaining agreement wherein cost-of-
living protectives were so capped.
In other cases the Board has allowed a similar latitude.
In Southern Foods, 171 NLRB 999, 1000 (1968), the
Board stated:
We do not deem as critical the possibility that the
Petitioner may have exaggerated the monetary
value of the numerous fringe benefits which were
part of the package offered by Armour. It is
common knowledge that in publicizing consummat-
ed collective-bargaining agreements, not infrequent-
ly employers and union place different monetary
values on the negotiated modifications in wages and
benefits (such as pregnancy leave, sick leave, and
various insurance benefits), and in our view most
employees are capable of evaluating such assertions.
See also Follett Corp. v. NLRB, 397 F.2d 91 (7th Cir.
1968) (7-cent overstatement of hourly rate held not a
substantial misrepresentation); Pepperell Mfg. Co. v.
NLRB, 403 F.2d 520 (5th Cir. 1969) (overstatements of
hourly wage by 20 to 30 cents held not substantial);
Louis-Allis Co. v. NLRB, 463 F.2d 512, 519 (7th Cir.
1972); Steelworkers v. NLRB, 496 F.2d 1342, 1346 (5th
Cir. 1974) (overstatement of hourly wage by 2.8 cents
held "insubstantial"); and Standard Register Co. v. NLRB,
649 F.2d 412 (6th Cir. 1981). Compare NLRB v. Millard
Metal Service Center, 472 F.2d 647, 650 (Ist Cir. 1973)
(overstatement of hourly wage by 42 cents held not sub-
stantial); Arvin Systems v. NLRB, 570 F.2d 156 (6th Cir.
1978) (40 percent overstatement of hourly wage by 42
percent held not in substantial); NLRB v. Van Gorp
Corp., 615 F.2d 759, 763 (8th Cir. 1980) (misrepresenta-
tion that a contract provided for increases of 12 cents
per hour quartely, rather than annually, held substantial).
Secondly, Respondent has utterly failed to establish
that the cost-of-living protective clauses in the Goulton,
Delco, and Edison agreements do not exactly keep up
with the Consumer Price Index. Respondent's expert
witness Reilly readily conceded that a similarly qualified
expert using the same contracts and CPIs could have
reached entirely different calculations by making differ-
ent assumptions. Reilly's calculations were based on an
assumption that is not necessarily true. In this connec-
tion, Reilly's calculations were based on the assumption
that the across-the-board increases provided for in all
three agreements were designed to make up for cost-of-
living increases which occurred during the third year of
the prior 1973-1976 agreements, rather than to provide
for expected cost-of-living increases to take place during
1976-1977, the first year of the agreements in issue.
Reilly admitted that he had no knowledge as to whether
the parties to these agreements intended the initial wage
increase to make up for the prior cost-of-living increases
in 1975-1976 or expected cost-of-living increases to take
place during the initial year of the agreement. When
asked to calculate the cost-of-living increases, assuming
that such across-the-board wage increases were to cover
expected cost-of-living increases during the 1976-1979
period, Reilly's figures indicated no cents per hour lost
to inflation as to the low and average wage earner at the
Edison and Gulton locations with a loss of 14 cents and
21 cents per hour loss respectively as to the high wage
earners at Edison and Gulton for this period. As to the
Delco agreement, Reilly's calculations indicated no
money was lost to inflation during the 1976-1979 period
under either assumption.
I reject as totally frivolous Respondent's contention
that the cost-of-living increases provided by the Union's
collective-bargaining agreements should be measured
without a consideration of the across-the-board wage in-
creases provided for in such collective-bargaining agree-
ments. In this connection, Respondent's own expert
Reilly concedes that he knows of no collective-bargain-
ing agreements which provide for across-the-board wage
increase, but rather a cost-of-living increase only. Fur-
ther, throughout Reilly's cross-examination he readily
admitted that across-the-board wage increases and cost-
of-living increases comprise what is commonly called the
cost-of-living protection provided for in collective-bar-
gaining agreements. This principle is corroborated by the
Union's expert, Michael Giuliano. Further, an examina-
tion of the June 4 union leaflet in question provides that
"Under their Union contract [a reference to Edison,
Gulton, and Delco] the wages of IUE members are in-
creased regularly throughout the year to keep pace with
the cost of living increases." The leaflet does not provide
under the cost-of-living clause that the wages of IUE
members are increases regularly throughout the year to
keep pace with the cost-of-living increase.
However, I further find Reilly's calculations meaning-
less, and I am unable to support Respondent's conten-
tions whichever assumption is used because they are not
predicated on the total number of employees covered
and the actual wage rates earned by such employees. In
this connection, Reilly arbitrarily selected the lowest
wage, the highest wage, and a middle wage provided for
in the three agreements, without respect to the number
of employees if any actually earned such wages. As set
forth above, Guiliano's credible and unrebutted testimo-
ny established that the overwhelming majority of em-
ployees in any given plant generally are among the low
wage earners, and that there are very few average, and
even less high wage earners. The truthfulness of this tes-
timony if confirmed by the Gulton records which estab-
lish that the mean hourly wage of all 94 Gulton employ-
ees in slightly less than the low wage rate chosen by
Reilly. Therefore, unless we know the number of em-
ployees employed at a plant and the wages earned by
539
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them, we really are unable to make any sensible calcula-
tion as to how they are affected by the cost-of-living
provisions of the above contracts. The hypothetical ex-
ample set forth above wherein no employees are in the
middle and high wage category establishes the inapplica-
bility of Reilly's calculations. Moreover, such hypotheti-
cal example becomes a reality when applied to the
Gulton employees.
Therefore I conclude that Respondent's calculations
are insufficient to establish any misrepresentation by the
Union concerning the cost-of-living protective clauses in
the Gulton, Delco, and Edison agreements.
Accordingly, I conclude that Respondent has failed to
establish that the Union's June 4 leaflet could reasonably
be interpreted to imply that cost-of-living protective
clauses provided for in the Union's Gulton, Delco, and
Edison agreements are exactly equal to the Consumer
Price Index. I further conclude that Respondent has not
established that the cost-of-living protective provisions
provided by these agreements does not provide cost-of-
living protection exactly equal to the Consumer Price
Index. I therefore overrule Respondent's Objection 6 en-
tirely.
G. Alleged Misrepresentations In the Union 's "Story
Leaflet"
Objection 4
On the morning of June 6, Harold Morrison and other
union representatives distributed the so-called Story
Leaflet. Respondent contends that chapter one of this
leaflet contains various material misrepresentations.
Chapter one sets forth as follows:
BACK IN THE "GOOD OLE" DAYS
In the "good ole" days, before the union came on
the scene, the company had every opportunity to
make Vitek a decent place to work.
But they goofed. Rates of pay were the lowest in
the area. Seniority meant nothing when it came to
promotions or overtime.
Few safety precautions were taken to protect the
people from carbon monoxide fumes, and when
they got sick because of the fumes, many of the
workers lost pay.
Employees could be fired with no chance of
appeal and all in all, management was completely in
the driver's seat.
Respondent specifically contends that the leaflet con-
tains misrepresentations as to Respondent's policy con-
cerning discharge, promotions, and assignment of over-
time; that the leaflet contains misrepresentations as to
safety precautions taken by Respondent and sick pay,
and a misrepresentation that Respondent paid its employ-
ees the lowest rates in the area.
The credible and uncontradicted testimony of Morri-
son established that the leaflet reflected complaints made
to the Union by Respondent's employees. Morrison testi-
fied that, throughout the union campaign, employees fre-
quently complained to him and other union representa-
tives about their low wages, that they could be dis-
charged without recourse, and that seniority did not
appear to be a factor in connection with promotions or
the assignment of overtime. In addition, the employees
also complained that Respondent failed to take proper
safety precautions to protect them from carbon monox-
ide poisoning caused by Respondent's heating system and
that, when employees became sick as a result and were
not able to work, Respondent did not pay them for this
lost time. These complaints were made by employees
during union meetings and in casual conversations with
union agents at Respondent's facility.
With respect to the employees' complaints concerning
Respondent's discharge policy, the Union distributed a
prior leaflet to employees on May 21 which set forth:
When the Vitek company makes a decision to repri-
mand, discipline or discharge a worker, that's it.
There is no grievance procedures, no appeals and
no right to go to court. The company's word is
final and that's the end.
Respondent did not respond to this leaflet.
The admitted facts establish conclusively that dis-
charge does indeed lie within the sole discretion of Re-
spondent. In this connection, there is no employee repre-
sentative or other representative to whom an employee
discharged, or in any manner disciplined, can appeal.
There are no employee committees designated for this
purpose, nor does any labor organization represent the
employees. Further, there is no independent third party
arbitrator designated by Respondent to whom an ag-
grieved employee can appeal.
Robert Giessler, president of Respondent, admits that
discharge lies solely within the discretion of Respondent.
Giessler maintains that there was nothing to prevent any
employee discharged or disciplined from contacting him
directly to appeal such discharge or discipline. However,
Giessler admitted on cross-examination that, prior to the
union campaign, Respondent never informed employees
that they had a right to appeal a discharge or discipline
to Giessler or their supervisor.
I therefore conclude that the statement in the Story
Leaflet, the "employees could be fired with no chance of
appeal and all in all, management was completely in the
drivers' seat," is a completely accurate statement, and
not a misrepresentation. Moreover, the evidence estab-
lishes that their complaints emanated from Respondent's
employees. Therefore the alleged misrepresentation was
not "within the special knowledge of the campaigner"
but rather within the knowledge of the employees who
could accordingly assess such union representation.
United States Gypsum Co., supra, 130 NLRB 901 (1961);
NLRB v. A. G. Pollard Co., supra, 393 F.2d 239 (Ist Cir.
1968); NLRB v. S. Prawer & Co., supra, 584 F.2d 1099
(Ist Cir. 1978).
Additionally, the same complaint was made in a union
leaflet distributed on May 21 and Respondent failed to
respond although it certainly had more than adequate
time to do so. Elmcrest Convalescent Hospital, supra, 173
NLRB 38 (1968).
Accordingly, I conclude, Respondent's objection to
this aspect of the Story Leaflet is totally without merit.
540
VITEK ELECTRONICS
With respect to the employees' complaints concerning
seniority as it relates to the assignment of overtime, the
testimony of Robert Giessler established that, prior to
1978, Respondent did not assign overtime. Beginning in
1978 overtime was assigned on a rotating basis. Assum-
ing overtime was available on successive days, the neces-
sary number of employees would be selected according
to seniority to work overtime the first day. Overtime
would thereafter be assigned by continuing down the se-
niority list. Selection in this manner would continue until
all employees had been assigned overtime work. Thus,
overtime was assigned to employees in this circular or
rotating manner. Giessler conceded that under this
system each employee, regardless of seniority, would,
over a period of time, receive the same overtime as other
less senior employees.
Based on Respondent's admissions, I conclude that se-
niority was not a real factor in the assignment of over-
time. Were it so, the senior employees would continually
receive first opportunity to work available overtime on
each occasion that overtime was available.
I therefore conclude that the Union's statement in the
Story Leaflet concerning the assignment of overtime was
true and not a misrepresentation.
Moreover, the evidence established that these com-
plaints emanated from Respondent's employees. There-
fore the alleged misrepresentation was not "within the
special knowledge of the campaigner" but rather within
the knowledge of the employees who could accordingly
assess such union representation. United States Gypsum
Co., supra; NLRB v. A. G. Pollard Co., supra; NLRB v. S.
Prawer & Co., supra.
With respect to the employees' complaints concerning
seniority as applied to promotions, the undisputed facts
establish that, prior to the union campaign, Respondent
did not inform employees either orally or in writing as to
any policy concerning promotion. Indeed, promotions
were not made by Respondnet until sometime during the
beginning of 1978, by which time Respondent had grown
substantially in size and employee complement. Earl
Hartsel, Respondent's plant manager, testified that Re-
spondent's policy prior to and throughout the union
campaign was to promote employees based on their ca-
pability. Hartsel maintained that in this connection se-
niority was a factor. However, Hartsel could recall no
promotion when the most capable employee was not se-
lected regardless of his or her seniority. Nor could he
recall a single instance where an employee having great-
er seniority, but less capability than another employee,
was selected. In this connection, on April 2, 1979, em-
ployee Rosie Carr was promoted over Florence Davis
although Carr had less seniority than Davis and six other
employees. Hartsel testified that Carr was promoted be-
cause in the opinion of management she was the most ca-
pable employee. When Davis complained to Hartsel
about being bypassed concerning his promotion, and
pointed out to Hartsel that she had more seniority than
Carr, Hartsel told her that seniority meant nothing.21
21 Hartsel denies this statement to Davis. However, based on compara-
tive demeanor considerations, I credit Davis.
Robert Giessler admited that shortly before and during
the union campaign he received numerous employee
complaints concerning Respondent's failure to consider
seniority with respect to promotions. In response to these
complaints, in April during the union campaign, Re-
spondent posted in the plant, a "Job Posting Procedure"
which provided in relevant part:
3. Selection (to a posted job position) will be
made on the basis of qualifications: In the event of
equally qualified applicants, seniority will be the de-
ciding factor.
Giessler conceded that, consistent with this job posting
procedure, seniority was not a factor in promotion,
unless two or more employees were exactly equal in all
other qualifications. 2 2
Further, Respondent's records establish that, from the
beginning of 1978 when Respondent commenced promo-
tions until June 7, Respondent promoted a total of 15
employees; of these, 7 promotions were made out of se-
niority.
The facts above establish that the single factor consid-
ered by Respondent in determining which employee
should be promoted was the capability of the employee.
Seniority was not a factor. This is established by Hart-
sel's admission that he could recall no instance when the
most capable employee was not selected regardless of se-
niority, and his further admission that he could recall no
instance when an employee having more seniority but
less capability than another employee was selected. It is
further established by his admission to Davis that seniori-
ty was not a factor concerning promotions, and by
Giessler's admission that, even following the job posting
procedure described above, employees were promoted
by selecting the most qualified employee and that senior-
ity was not a factor unless all other quahlifications were ex-
actly equal.
I therefore conclude that the Union's representation
that seniority meant nothing when it came to promotions
was more than substantially accurate, and not a misrepre-
sentation.
Moreover, the evidence establishes that these com-
plaints emanated from Respondent's employees.2S There-
fore the alleged misrepresentation was not "within the
special knowledge of the campaigner" but rather within
the knowledge of the employees who could accordingly
assess such union representation. United States Gypsum
Co., supra, 130 NLRB 901 (1961); NLRB v. A. G. Pollard
Co., supra; NLRB v. S. Prawer & Co., supra, 584 F.2d
1099 (Ist Cir. 1978).
With respect to the employees' complaints concerning
safety conditions, the facts established that, sometime
during the last week of January 1979, Respondent moved
into its facility located in Edison, New Jersey, which had
been built to Giessler's specifications by a building con-
tractor.
22 It could be argued that the posting of the above job posting proce-
dure by Respondent in response to employee complaints during the
Union's campaign was an unfair labor practice in violation of Sec. 8(a)().
23 In this respect Giessler concedes that he initiated his job posting
procedure pursuant to complaints of employees in April 1979.
541
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 12, the first-shift employees complained
of severe headaches and nausea. These symptoms became
so severe that the employees were forced to leave Re-
spondent's plant and were treated at a local hospital. The
doctor who treated the employees diagnosed their condi-
tion as carbon monoxide poisoning and sent them home.
It was subsequently ascertained that their illness was di-
rectly attributable to excess carbon monoxide in Re-
spondent's plant caused by the heating system coupled
with inadequate ventilation. As a result of their illness
many employees required several days' recuperation at
home. However, Respondent paid all employees only a
half day's pay, regardless of the number of days they
were absent due to such carbon monoxide poisoning.
This payment was reflected in the employees' checks
which issued on February 17.
Thereafter, employee Viesta Ware, who was out sick
for a period of 5-1/4 days following the February 12 in-
cident described above, filed a claim for workmen's com-
pensation. On May 4, the workmen's compensation
board issued a decision concluding that Ware was enti-
tled to the additional compensation claimed. According-
ly, Ware was paid by the carrier, American Mutual for
5-1/4 days. On May 4 or May 5, following the work-
men's compensation decision concerning Ware, Respond-
ent paid those employees absent more than I half day as
a result of the February 12 incident up to 2 additional
days, depending on their total absence.24
Carmine D'Elio, Respondent's vice president of oper-
ations, testified that Respondent's payment to the above
employees of the up to two additional sick days on May
4, the day of the Viesta Ware workmen's compensation
decision, was merely a coincidence. But, in any event,
payment of wages to which these employees were enti-
tled was delayed for a period of at least 2-1/2 months.
Moreover, such payments were without interest. Addi-
tionally, such payments did not take place until a time
well into the union campaign.25
Immediately after Respondent ascertained that the ill-
ness of employees on February 12 described above was
caused by excessive carbon monoxide gas in the plant
area, it attempted to correct this problem by the installa-
tion of an additional vent system and a reduction of the
exhaust speed. These operations were completed by Feb-
ruary 16.
Nevertheless, a second incident involving carbon mon-
oxide poisoning took place on February 16, 1979. In this
connection, employees Mary Sheffield and Joyce Reid
a4 The following employees were paid by Respondent as set forth
below:
Employee Days out Days paid
Florence Davis 2-1/2 2-1/2
Julia Green 1/2 1/2
Edward Rubas I-1/2 1-1/2
Alice Ceccato 1-1/2 1-1/2
Delzora Mosely 5-1/2 2-1/2
Rubolph Newsome 1/2 1/2
Meung Jung 1/2 1/2
Frances Kelly 5-1/2 2-1/2
Vera Price 5-1/2 2-1/2
Employee Wiesta Ware was paid 5-1/2 days by American Mutual 5-
1/2 days out.
's It could be argued that such payment by Respondent constituted an
unfair labor practice in violation of Sec. 8(aX I).
credibly testified that they and other employees com-
plained of severe headaches and nausea to their supervi-
sor, Ed Conquest, who told them there was too much
carbon monoxide gas in the plant. He ordered all the em-
ployees on the second shift to assemble and wait in the
cafeteria. Shortly afterward, a shift supervisor, Al
Gruszka, informed the employees assembled in the cafe-
teria that they could go home this time and Respondent
would pay, but that Respondent would not pay them the
next time. A total of 30 employees were sent home that
day. These employees had worked for 6 hours prior to
being released by Respondent; they were paid for their
full 8-hour shift.
Al Gruszka denied telling employees that Respondent
would not pay them the next time they were ill as a
result of excessive carbon monoxide in the plant. I do
not credit his testimony for the reason set forth below.
I credit the testimony of Reid and Sheffield. Both em-
ployees demonstrated an excellent recollection of the
facts to which they testified. Additionally, they were
most responsive to questions put to them on direct and
cross-examination. They generally impressed me
throughout their testimony as forthright and truthful wit-
nesses.
I do not credit Gruszka's testimony, which was ex-
tremely vague concerning the details surrounding this in-
cident. In this connection he could not recall that em-
ployees were assembled in the cafeteria at the time he
sent them home. Rather, he testified contrary to the testi-
mony of other employees, including Respondent's rebut-
tal witness, that the employees were working in the pro-
duction area and he went around and individually re-
leased them. Moreover, he testified that the employees
were complaining about breathing problems which is
contrary to the consistent testimony of other employees
and Respondent's officials who testified to employee
complaints concerning headaches and nausea.
Respondent introduced several employees as rebuttal
witnesses to substantiate Gruszka's rather vague testimo-
ny surrounding the details of the February 16 incident.
However, their memory as to this incident proved even
more unreliable than Gruszka's.
Employee Lynn Daley initially could not recall
whether Gruszka said anything to the employees con-
cerning their receiving payment. Daley did testify, pur-
suant to leading questions, that Gruszka did not tell her
that she would get paid this time but that if she left early
again she would not be paid. Daley could not recall
whether Gruszka spoke to employees individually and
sent them home or whether they were assembled in a
group.
Employee Cornelia DeBoles initially testified that she
could not remember Gruszka stating anything to her or
other employees concerning payment. However, pursu-
ant to leading questions, she denied that Gruszka in-
formed employees that they would not be paid the next
time they left because of carbon monoxide related illness-
es. DeBoles' recollection of the incident was so poor that
she could not remember whether employees were assem-
bled in the cafeteria.
542
VITEK ELECTRONICS
Employee Margret Pauser could not remember wheth-
er Gruszka said anything to the employees concerning
payment for the day or anything about future company
payments if employees had to leave the plant as the
result of carbon monoxide poisoning.
Employee Jorge Chavez was similarly unable to recall
whether Gruszka said anything to him or other employ-
ees about being paid for the day or future carbon monox-
ide related illnesses. Additionally, Chavez could not
recall whether employees were assembled in the cafeteria
at the time of their release. Although unable to recall
such details, pursuant to leading questions he denied the
statements attributed to Gruszka by Sheffield and Reid.
In view of the obvious poor recollection of facts sur-
rounding the incident by Respondent's witnesses Daley,
DeBoles, Pauser, and Chavez, and in view of the fact
that any denial of the statement attributed to Gruszka by
Sheffield and Reid resulted from leading questions put to
them by Respondent, I do not credit their testimony.
A third carbon monoxide poisoning incident took
place on February 26. At this time a number of employ-
ees on the second shift complained to their supervisors of
severe headaches and nausea and left work 4-1/2 hours
early. Respondent admits that seven employees made
such complaints and left work.26
Employee Joyce Reid testified that, when she arrived
at work on February 26, a number of employees were
complaining of headaches and nausea. Respondent's su-
pervisors opened the plant doors to let in fresh air. Reid
testified that one of these open doors was located by her
work station and that the rain outside was coming in on
her. Reid testified that she left work because of the
severe cold and rain which was striking her and that sev-
eral other employees complaining of headaches and
nausea also left.
Mary Sheffield testified that, when she reported to
work on February 26, the doors were open but she could
nevertheless smell the carbon monoxide fumes. Notwith-
standing the open doors, she and other employees began
to get severe headaches and nausea. Sheffield complained
to her supervisor, Al Gruszka, that she felt sick from the
fumes and had to go home. Gruszka told her she could
go home and not come back. Sheffield replied that she
did not think this was necessary but that she was leaving.
She left the plant and punched her timecard.
Gruszka did not deny Sheffield's testimony above.
Timecards of Respondent established that, in addition
to the 7 employees named by Respondent claiming to be
ill and leaving on February 26, 14 additional employees
left at the same time.2 7 I conclude they left because of
carbon monoxide poisoning.
Respondent admits that none of the above 21 employ-
ees were paid for their absence from work.
Robert Giessler testified that Respondent's policy con-
cerning carbon monoxide related illness was that any em-
26 Respondent's timecards establish that employees Diane Polidoro,
Geraldine Person, Jerome Byrnes, Lynn Daley, Maria Dias, Valerie
Dickey, and Elestine Randolf left work at 7:30 on February 26.
27 Respondent's timecards establish that Mary Sheffield, Joyce Reid,
Bessie Foots, Mary Gains, Shirley Esaw, Fannie Taylor, Ella Mae Flem-
ing, Gregory Gittens, Veronica Hamlet, Samtab Sasinin, Sylvia Knight,
Sherry Kelly, Marchelle James, and Fred Henderson left at 7:30 p.m. on
February 26,
ployee who could substantiate by a doctor's note from
Respondent's doctor or from the employee's personal
doctor that their absence from work was due to carbon
monoxide poisoning would be paid. However, such
policy was never communicated either orally or in writ-
ing to the employees.2 s
Subsequently, Respondent added a second vent system
in order to improve conditions and, on or about March
28, Respondent purchased and began using gas detection
devices to measure the percentage of hazardous gases in
the plant.
The facts establish that, beginning on February 12, em-
ployees began suffering from carbon monoxide poisoning
which required them to leave work, and that such ill-
nesses were caused by excessive carbon monoxide gas in
the plant, which was the direct result of the failure by
Respondent to provide proper ventilation. In short,
proper safety precautions were not taken by Respondent
to protect its employees from excessive carbon monoxide
fumes.
The facts also establish that, on three separate occa-
sions, large numbers of employees had to leave work be-
cause of excessive carbon monoxide fumes in the plant.
The facts further establish that this condition was the
direct result of Respondent's failure to provide proper
ventilation. Respondent admits that the employees who
left work on February 12 and 16 left because of carbon
monoxide poisoning resulting from improper ventilation
in the plant. The evidence also establishes, contrary to
Respondent's contention, 20 employees had to leave on
February 26 because of excessive carbon monoxide in
the plant. 29
Accordingly, I conclude that Respondent failed to
provide proper safety precautions to protect its employ-
ees from carbon monoxide fumes and that, as a result of
this failure, employees were forced on February 12, 16,
and 26 to leave work because of carbon monoxide poi-
soning directly attributable to Respondent's failure to
provide adequate ventilation.
I further conclude that, in many instances, employees
were not paid for absence caused by this excessive
carbon monoxide gas. In connection with the February
12 incident, the evidence established that Respondent ini-
tially made payment of only one-half day to those em-
ployees leaving work as a result of carbon monoxide poi-
soning. The remaining payment due, of up to 2 days, was
not made until May 4, some 2-1/2 months later and only
following a successful workmen's award in favor of em-
ployee Viesta Ware. I conclude that such a delay of pay-
ment, without interest, to unskilled employees who gen-
erally depend on their weekly paycheck for their daily
needs is the substantial equivalent of a denial of payment.
For this reason alone I would conclude that the state-
ment in the Union's leaflet concerning lost pay by the
28 Carmine. D'Elio testified that, although he was aware of Respond-
ent's substantiation requirements, he informed only those few employees
who specifically asked him. Moreover, he admitted that no employee
asked him prior to March 1. He did not specify which employees ques-
tioned him concerning Respondent's policy.
z9 Additionally, Joyce Reid left because of the cold and rain in the
plant caused by Respondent's opening of plant doors to eliminate the ex-
cessive carbon monoxide.
543
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers due to carbon monoxide related illnesses was
substantially true. However, the evidence also established
that on February 16, Supervisor Gruszka informed 30
employees that they would not be paid for carbon mon-
oxide related illnesses after February 16. Gruszka's state-
ment of Respondent's position would appear to be accu-
rate in view of the incident on February 27, when 20
employees were forced to leave work because of excess
carbon monoxide in the plant and were not paid for such
work-related illness. Respondent contends that its policy
was to pay those employees who could substantiate their
illness through a doctor's note. However, Respondent's
policy was an extremely well-kept secret. The evidence
establishes that employees were never informed either
orally or in writing of such policy.
I therefore conclude that the statement in the Union's
leaflet, that "few safety precautions were taken to pro-
tect the people from carbon monoxide fumes, and when
they got sick because of the fumes, many of the workers
lost pay," is substantially true and that no misrepresenta-
tion of fact existed. Accordingly, I find no merit in this
aspect of Respondent's objection.
Moreover, the evidence establishes that these com-
plaints emanated from Respondent's employees. There-
fore the alleged misrepresentation was not "within the
special knowledge of the campaigner" but rather within
the knowledge of the employees who could accordingly
assess such union representation. United States Gypsum
Co., 130 NLRB 901 (1961); NLRB v. A. G. Pollard Co.,
393 F.2d 239 (Ist Cir. 1968); NLRB v. S. Prawer & Co.,
supra, 584 F.2d 1099 (Ist Cir. 1978).
Respondent also alleged that the Story Leaflet misrep-
resented Respondent's wage rates prior to the union
campaign. In this connection the leaflet set forth:
In the "good ole" days before the union came on
the scene, the company had every opportunity to
make Vitek a decent place to work.
But they goofed. Rates of pay were the lowest in
the area ....
The evidence establishes that, throughout the entire
course of the Union's campaign, the subject of wage
rates paid by Respondent as compared to other union
shops were discussed, by both Respondent and the
Union.
In this connection, Archer Cole, union district presi-
dent, testified that, during a union meeting in April at-
tended by approximately 50 employees, he told the em-
ployees that the Union represented a substantial number
of companies in the area and that employees at such
union shops were satisfied with wage and other working
conditions in these plants. Cole specifically mentioned
the large wage differentials that existed between Gulton,
Delco, and Edison, all union plants, as compared, to Re-
spondent. Similarly, Harold Morrison testified that at
various union meetings he repeatedly emphasized to the
employees the increased benefits which included higher
wages that existed at union shops in the area.
The evidence established that the Union represented
an enormous number of shops throughout the area. Cole
testified that the Union represented almost 450 shops in
the district which encompassed northern New Jersey,
and represented a "whole slew" of union shops within
the Respondent's immediate area.
Moreover, the wage issue was also discussed through-
out the campaign through the literature distributed to the
employees by both the Union and Respondent. In this
connection, during the early part of April Respondent
distributed a leaflet to its employees which set forth as
follows:
Vitek seeks to maintain wages and benefits which
are in line with those paid for similar work in com-
parable companies in our area. Periodic surveys are
conducted to insure that this practice is maintained
on a current basis.
A current survey has indicated that an increase in
wages and benefits at this time would be appropri-
ate. You can look forward to this adjustment during
the month of April.
Following this leaflet, Respondent announced, in a
subsequent leaflet distributed to all employees on April
17, a huge 17-percent wage increase. The leaflet set forth
as follows:
It is with great pleasure that I announce our 1979
wage adjustment. As we indicated in March, we
have been studying area wages and benefits for quite
some time to come up with the best possible pack-
age for you the employees, while at the same time
servicing the interest of Vitek as a corporation.
As a result of our survey, we have decided to have
only a three step wage program rather than a multi
step three year program used previously. Thus, a
new employee coming in will receive a starting
rate; after the 90 day probationary period the em-
ployee will receive a raise and then again at the end
of 1 year. After this the employee can expect in-
creases on an annual basis according to out annual
survey of area wage rates. [Emphasis added.]
The Union, responding to Respondent's wage in-
creases, distributed a leaflet on May 9 to employees set-
ting forth as follows:
The worth of the Union has already proved itself
at Vitek. In the few short weeks since the people
determined to sign up in the IUE, the Company
has:
Felt compelled to raise its extremely low wage
scale . ...
Everyone knows the Company has taken these
steps only because the Union is here and only be-
cause management knows that with a union they
will have to do much more to improve wages and
fringe benefits, without cost to the employees.
On May 31, Respondent distributed another leaflet to
its employees which set forth as follows:
544
VITEK ELECTRONICS
Over the last couple of weeks, I have tried to
give up the "real" story on Union membership.
Many of you had said "Give me an example of
what you are telling us."
Well, In Morganville, New Jersey, near where
Carmine [D'Elio] lives there is a Company called
Entron, Inc. that does very similar work to Viteks.
In fact they are in the cable TV business as well.
The IUE came along and made some very familiar
promises including a raise of $2.00 an hour! The ma-
jority of the Entron employees fell for their sales
pitch, and voted the Union in. Well, the Union got
them a raise all right: 35¢! Entron has only one
labor rate, not two like we have, and here's the
comparison AFTER the Union settled the contract,
and "deliver ... "
In other words we start new employees at 22¢
per hour more with the IUE, we pay 34¢ per hour
more at 3 months, without the IUE, we end up
paying 43¢ per hour more without the IUE. [Empha-
sis added.]
On June 5, Respondent distributed yet another leaflet
to its employees which set forth as follows:
QUESTION: If the Union were to win here, would
our wage rates go down to the Entron ones you
showed in your letter? [A reference to the Entron
leaflet distributed by Respondent on May 31 de-
scribed immediately above.]
ANSWER: No that wasn't the purpose of what I
was trying to say in that letter. [May 31 leaflet.]
The real purpose of that letter was to show you
that the Union didn't keep its promises to the
Entron employees. The Union has made ridiculous
promises hereto. But the truth is, all the Union can
do is ask, it is the Company which pays your
wages. We feel and hope you agree that the recent
wage increase was fair and equal to the rates paid by
the companies in the area. [Emphasis added.]
Thereafter, on June 6, in response to Respondent's
June 5 leaflet, the Union distributed its Story Leaflet to
the employees. Employee Mary Sheffield credibly testi-
fied that, following the distribution of the Story Leaflet,
Carmine D'Elio, Respondent's vice president, assembled
the employees in the work area and holding the Story
Leaflet aloft in his hand, told the employees that he
knew that Vitek was not the lowest paid Company in the
area; that he could name five other companies who paid
lower wages than Vitek. Sheffield testified that he did
not name them. Sheffield responded that the employees
realized that they were not the lowest paid, but they
were not the highest paid either and she could name five
companies that paid higher than Vitek. D'Elio asked her
to name them. When she began to name such companies
D'Elio told her to keep quiet. Sheffield testified that Re-
spondent's usual practice following the distribution of
union leaflets was to meet with employees to discuss the
leaflet.
D'Elio admitted that he met frequently with the em-
ployees, approximately once a week throughout the
union campaign. D'Elio further admitted that he recalled
at least two occasions when he discussed wages with the
employees-once when Respondent announced its wage
increase on April 17 and another occasion when he dis-
cussed with the employees a comparison of wages at
Vitek with that of several other union shops. During this
discussion, he pointed out the difference in work in-
volved between Vitek and these other union shops.
D'Elio, although not specifically denying the June 6
meeting described above by Sheffield, testified that he
could not remember holding such meeting. He did admit,
however, that during meetings he conducted Mary Shef-
field quite often spoke up.3 0
Based on my favorable impression with respect to
Sheffield's credibility, described above, and in view of
D'Elio's failure to specifically deny the meeting as de-
scribed by Sheffield, I credit Sheffield's testimony.
As set forth above, the objecting party carries a heavy
burden of proving that there has been prejudicial unfair-
ness in the election. NLRB v. Claxton Poultry Co., supra,
581 F.2d 1133 (5th Cir. 1978); NLRB v. Golden Age Bev-
erage Co., supra, 415 F.2d 26 (5th Cir. 1969). The objec-
tor must establish that such misrepresentation "interfered
with the employees' exercise of free choice to such an
extent that they materially affected the results of the
election." Moreover, as set forth in Hollywood Ceramics,
supra, 140 NLRB 221 (1962), even where a misrepresen-
tation is established, the Board may still refuse to set
aside the election if it finds on consideration of all the
circumstances that the statement would not be likely to
have had a real impact on the election.
Turning our attention to the facts of the instant case,
the Story Leaflet described above refers to wage com-
parisons prior to the advent of the Union's organizational
campaign. Subsequent to the union campaign, Respond-
ent, on April 17, granted the employees a huge 17-per-
cent wage increase so that on the day of the election
their wages were substantially higher than they were
prior to the advent of the Union, the period referred to
by the union leaflet. Moreover, Respondent through its
campaign, which included leaflets and speeches to em-
ployees, repeatedly informed them as to their current
wage comparability after their wage increase with respect
to union shops in the area. Under these circumstances it
is difficult to imagine that a union leaflet comparing
wage rates of the past could have any significant impact
on employees on June 7, the date of the election. More-
over, despite the broad latitude of the Third Circuit
remand, Respondent failed to produce a single witness or
any other evidence as to how the employees interpreted
the Story Leaflet. 3
Therefore I conclude, for the reasons above, that Re-
spondent's objection to his aspect of the Story Leaflet is
without merit.
30 In rebuttal Respondent called employees Cornelia DeBoles and Rita
Manella However, both employees could recall only that D'Elio held a
number of meetings with employees. They were unable to testify as to
the specifics of any such meetings. Based on their total inability to recall
any details as to any of the meetings conducted by D'Elio, I conclude
that their testimony is totally unreliable.
31 See fn. 20.
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has further held that, even if a misrepresen-
tation is made in the final days of the campaign, the elec-
tion will not be set aside if the subject of the misrepre-
sentation had been raised earlier in the campaign. Lem-
crest Convalescent Hospital, supra, 173 NLRB 38 (1968)
Allison-Haney, Inc., 185 NLRB 852 (1970); Wells Fargo
Security Guard Services, 194 NLRB 828 (1972).
In Allison-Haney, Inc., supra, the Board, in dismissing
the Union's objections concerning the distribution to em-
ployees shortly before the election of a paycheck stub
which set forth payroll deductions which the employer
would be required to make for health and welfare bene-
fits should the union win the election, concluded that the
representation of such deduction by the employer, al-
though perhaps erroneous, was an asnwer, in the course
of the preelection campaign, to a number of circulars
which the union had distributed and which described its
policies with respect to health and welfare benefits to
which the paycheck attachment was a reply. Under these
circumstances, the Board concluded that the employees
were therefore in a position to evaluate the claims of the
respective statements.
In Wells Fargo, supra, 194 NLRB at 829, the Board, in
overruling the union's objections concerning the employ-
er's alleged misrepresentation as to wage rates, conclud-
ed:
As we view the facts, the parties exchanged parti-
san campaign statements concerning the wage rates
likely to result under collective bargaining should
the Petitioner be certified, and the statements of
both contained ambiguities and half-truths of the
type which employees are capable of evaluating. In
the circumstances, we conclude . . . that any inac-
curacies in the Employer's July 6 letter did not
have a significant impact on the election.
In the instant case, an analysis of the meetings con-
ducted by the Union and by Respondent, and of the lit-
erature distributed to employees by both parties, estab-
lished that the wage issue set forth in the Story Leaflet
had been presented to the employees by both parties
throughout the entire union campaign. In this connec-
tion, Respondent's early April leaflet sets forth that
"Vitek seeks to maintain wage and benefits which are in
line with those paid for similar work in comparable com-
panies in our area." Its April 17 leaflet announcing the
wage increase sets forth that "as a result of our survey
we have decided to have only a three step wage pro-
gram . . . after this the employee can expect increases
on an annual basis according to our annual survey of
area wage rates." Its May 31 "Entron" leaflet compares
Respondent's wages with that of Entron, a union shop
engaged in a comparable business to Respondent's. Its
June 5 leaflet states, "We feel and hope you agree that
the recent wage increase was fair and equal to the rates
paid by companies in the area." (Emphasis added.) More-
over, D'Elio met with employees immediately following
the distribution of the Story Leaflet and he specifically
discussed the alleged misstatement set forth therein. I
therefore conclude that Respondent more than adequate-
ly presented the issue alleged as a misrepresentation so
that employees were fully capable of making a fair eval-
uation.
For this additional reason, I would also find no merit
to Respondent's objection in this respect.
I further conclude that the Union's statement, "rates of
pay were the lowest in the area," refers to a comparison
of Respondent's wages with that of other union shops in
the area, rather than, as contended by Respondent, all
companies in the area. An examination of the Union's
entire campaign establishes this conclusion. Throughout
the campaign, the Union attempted to compare the
wages and other benefits obtained in union shops with
those of Respondent. In this connection, the evidence es-
tablished that in early April, during a union meeting at-
tended by 50 Respondent employees, Archer Cole com-
pared Respondent's wages with the wages obtained in
other union shops. Further, at other union meetings,
Morrison repeatedly compared wages obtained at other
union shops in the area with those of Respondent. The
evidence established that the Union represented a "whole
slew" of shops in the area. It is obvious that the Union
did not possess any knowledge as to what other non-
union shops in the area paid to their employees. Given
the multitude of union shops in the area, given the favor-
able comparison which the Union was able to make, it is
logical that the Union was comparing the wages of other
union shops with those of Respondent. Again, I note
that, despite the broad latitude of the Third Circuit
remand, Respondent failed to produce a single witness or
any other evidence as to how employees interpreted the
Story Leaflet. 3 2
Therefore, viewing the alleged wage misrepresentation
set forth in the Union Story Leaflet as a comparison be-
tween Respondent and other union shops in the area, Re-
spondent has failed to establish that prior to the advent of
the union campaign it paid higher wages than any union
shops in the area. 33
I therefore conclude, additionally for this reason, that
the Union's objection concerning this aspect of this Story
Leaflet is wholly without merit.
Concerning Respondent's contention that the Story
Leaflet referred to all companies in the area rather than
union shops, the evidence established that Edison Pack-
aging, located in Edison, New Jersey, paid its employees
less than Respondent prior to April 1979. However,
Edison Packaging is a warehousing operation rather than
a manufacturing operation similar to Respondent. Re-
spondent also established that Vera Imported Parts, lo-
cated in Piscataway, New Jersey, paid its employees less
than Respondent prior to April 1979. However, Vera,
like Edison Packaging, is also a warehousing operation
rather than a manufacturer. Respondent also established
that Pressman Toy Corporation, located in New Bruns-
wick, New Jersey, paid its employees wages lower than
that of Respondent during the period prior to April
:2 See fn. 20.
33 In this connection Respondent paid its employees less than Entron,
a union shop in the area and comparable with Respondent prior to the
union campaign. It was only after the union campaign was well under-
way in mid-April, following Respondent's 17-percent wage increase, that
Respondent paid its employees more than Entron.
546
VITEK ELECTRONICS
1979. Pressman Toy manufactures children's toys and is
not in the electrical equipment industry. Respondent also
established that Injectron Corporation, located in Plain-
field, New Jersey, paid its employees less than Respond-
ent employees during the period prior to April 1979.
However, Injectron is not in the electrical equipment in-
dustry. Respondent also established that Standard Plastic
Products and Mattel, a subsidiary of Standard Plastic
Products, engaged in the manufacture, warehousing, and
distribution of children's toys, paid their employees less
than employees at Respondent for the period prior to
April 1979. However, neither Standard Plastic Products
nor Mattel is in the electrical equipment industry. Re-
spondent also established that Blonder-Tongue Laborato-
ries, Inc. located in Oakridge, New Jersey, engaged in
the manufacturing of television signal reception products,
paid wages which were generally lower than those of
Respondent prior to April 1979.34
Herbert Beinstock, an eminent labor economist and
former commissioner of labor statistics of the northeast
region of the Bureau of Labor Statistics, was called as a
witness by Respondent. Beinstock testified, after review-
ing Bureau of Labor Statistics material, that in Middlesex
County, where Respondent's facility is located, there
were approximately 1032 manufacturing facilities as of
1978 encompassing a wide range of industries, and that
immediately to the north of Edison, in the metropolitan
Newark area, an area where many of Respondent's em-
ployees resided, there were at least several thousand
more manufacturing facilities. Based on this testimony, I
conclude that, in the area surrounding Respondent's
Edison facility, there were at least 1000 to 2000 manufac-
turing facilities as of 1978 encompassing a wide range of
industries. 3s
Therefore, at best, Respondent has successfully estab-
lished that, out of 1000 to 2000 manufacturing facilities in
the area, Respondent's starting wages are higher than 15
warehouse or manufacturing facilities, only two of which
facilities are engaged in the electronic equipment indus-
try. Respondent adduced no evidence as to whether its
wages were among the highest wage rates in the area as
compared to the total number of facilities in the area, let
alone facilities comparable to Respondent. Under these
circumstances, I conclude that Respondent has failed to
establish that the alleged wage "misrepresentation" was a
material misrepresentation involving a substantial depar-
ture from the truth sufficient to affect the results of an
election.
As set forth above, the objecting party carries the
"heavy burden" of establishing that the employees' exer-
cise of free choice materially affected the results of the
election as a result of the alleged misrepresentation.
NLRB v. Claxton Poutry Co., supra, 581 F.2d 1133 (5th
Cir. 1978); NLRB v. Golden Age Beverage Co., supra, 415
F.2d 26 (5th Cir. 1969). The Board will not set aside an
election because of exaggerated statements that are typi-
cal of any election campaign. Russell Newman Mfg. Co.,
supra, 158 NLRB 1260 (1966), nor will the Board set
3s The preceding companies were the subject of the stipulation that
they were representative of a total of 15 companies located in the area.
's Beinstock's testimony in this connection was based on 1978 Bureau
of Labor Statistics figures.
aside an election where the message conveyed in election
propaganda is merely "inartistically or vaguely worded
and subject to different interpretations" or "at words
. . .an exaggeration of fact, subject to different interpre-
tations." NLRB v. Sauk Valley Mfg. Co., supra, 486 F.2d
1127 (9th Cir. 1973). In this connection, when Beinstock
was questioned concerning the Union's alleged misrepre-
sentation, set forth in the Story Leaflet, he testified as
follows: "anyone who is knowledgeable in occupational
wage analysis would regard that statement [referring to
the Union's alleged wage misrepresentation] as being to-
tally irrelevant. This is not the way you look at wage
structures."
Accordingly, I conclude that the Union's Story Leaf-
let statement was not a material misrepresentation. I fur-
ther conclude that even if the statement was not 100 per-
cent accurate it was within the bounds of permissible
election propaganda and did not constitute a substantial
departure from the truth that could reasonably be ex-
pected to affect the conduct of an election. Accordingly,
for these additional reasons, I conclude that there is no
merit to Respondent's objection.
Moreover, if the alleged misrepresentation is to be in-
terpreted as Respondent contends, then I would con-
clude that the Union would not possess "special knowl-
edge" nor would the employees have reasonably be-
lieved that the Union was in an authoritative position to
make representations as to thousands of nonunion shops.
NLRB v. A. G. Pollard Co., supra, 393 F.2d 239 (Ist Cir.
1968); United States Gypsum Co., supra, 130 NLRB 901
(1961). Again, I note that, despite the broad latituted of
the Third Circuit's remand, Respondent failed to
produce a single witness or any other evidence how the
employees interpreted the Story Leaflet.36
Accordingly, for this additional reason I conclude
there is no merit to Respondent's objection herein.
H. Respondent's Affirmative Defenses
Respondent alleges as its third affirmative defense that
the hearing herein is an adequate remedy becase, inter
alia, it is impossible to resurrect evidence concerning the
atmosphere that existed during the relevant period imme-
diately prior and up to June 17, 1979; there has been ex-
tensive turnover in the unit since that day; and evidence
in support of Respondent's objections is otherwise un-
available to Respondent due to the passage of time.
In support of this position Respondent relied on two
Second Circuit cases, NLRB v. Hale Mfg. Co., 602 F.2d
244 (2d Cir. 1979), denying enf. of Hale Mfg. Co., 236
NLRB 289 (1978), and NLRB v. Nixon Gear, 649 F.2d
906 (2d Cir. 1981). In Hale, supra, the Board set aside the
Board's order certifying the election. The reason given
by the court was that (602 F.2d at 249):
Not only would it be almost impossible to resurrect
evidence concerning the atmosphere that existed
during the relevant period, but also the composition
of the unit has no doubt shifted. In this case, the
S See fn. 20.
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only way to assure "laboratory conditions" are re-
stored is to hold a new election.
Similarly, in Nixon Gear, supra, 649 F.2d at 914, the
Second Circuit refused to remand for hearing on the em-
ployer's objections noting that:
The Union's victory was very narrow, the labor
force . . . has undoubtedly changed since the elec-
tion, and there is no way of knowing at this time if
the Union enjoys a majority of support.
Respondent's reliance on these cards is misplaced in
view of the Third Circuit's specific remand to the Board
with instructions to hold the hearing herein. Had the
Third Circuit considered a hearing in this matter to be
an inadequate remedy, it would have so held.
Moreover, the two Second Circuit decisions conflict
with decisions in other circuits, in which Respondent's
argument was given careful consideration and rejected.
In this connection, the Third Circuit recently noted in
Hedstrom Co. v. NLRB, 629 F.2d 305, 312 (3d Cir. 1980
en banc), cert. denied 450 U.S. 996 (1981), enfg. a Gissel
bargaining order 5-1/2 years after an employer's unfair
labor practices had resulted in the erosion of majority
support:
[T]o require the Board to determine whether a con-
tinuing majority supports unionization would be "to
put a premium upon continued litigation by the em-
ployer." ... For an employer, particularly one
with a rapid turnover rate, could hope that the re-
sulting delay would produce a new factual situation
which the Board would then have to consider. In
the manner, the employer would be able to avoid
any bargaining obligation indefinitely.
In connection with the hearing held herein, any con-
tention by Respondent that it was impossible to resurrect
evidence that existed during the preelection period be-
cause of the passage of time and turnover is wholly with-
out merit. It is well settled that the burden is on the
party who seeks to overturn an election to establish that
objectionable conduct occurred which warrants such
result. The ultimate responsibility for establishing this
evidence is on Respondent.
Moreover, in reviewing the Regional Director's deci-
sion on objections and the Third Circuit's decision in this
matter, I conclude that the evidence submitted to the Re-
gional Director and the Third Circuit by Respondent in
connection with its objections in this matter was fully
presented and litigated at this hearing.
Accordingly, I reject Respondent's defense in its en-
tirety.
Respondent alleges as a fourth defense that a bargain-
ing order is inappropriate inasmuch as the Union no
longer has a support of the majority of the employees in
a bargaining unit due to, inter alia, the passage of time
and extensive turnover in the unit since June 7, 1979.
For reasons set forth in Hedstrom Co. v. NLRB, supra,
629 F.2d 305, I reject Respondent's defense entirely. Ad-
ditionally, in Chromalloy Mining Division v. NLRB, 620
F.2d 1120, 1132-33 (1980), the Fifth Circuit rejected em-
ployee turnover and the passage of time as a defense
giving essentially the same reason as the Third Circuit in
Hedstrom Co., supra:
If we required that a continuing majority support
unionization, an employer with a rapid turnover
rate could commit unfair labor practices freely,
knowing that a substantial number of new employ-
ees would be working by the time the Board held a
hearing and that the Board's only remedy would be
to issue a cease and desist order and call a new elec-
tion. The employer could then commit more unfair
labor practices during the campaign, and the Board
would have to hold a third election. The employer
could thus avoid any bargaining obligation indefi-
nitely, and the union would assume the role of Sisy-
phus, condemned in Hades continually to roll a
stone up a hill, only to find that it slides down again
before reaching the top.
Accord: NLRB v. Dadco Fashions, 632 F.2d 493 (5th Cir.
1980), Ex-Cell-O Corp. v. NLRB, 449 F.2d 1058, 1063
(D.C. Cir. 1971); NLRB v. Frick Co., 423 F.2d 1327,
1334 fn. 17 (3d Cir. 1970).
Thus, it would appear that the Third and Fifth Cir-
cuits have accurately identified the considerations militat-
ing against judicial recognition of the passage of time
and turnover of employees as reasons for denying a bar-
gaining order. I find the rationale set forth in these deci-
sions clearly applicable with equal force to the instant
case. Accordingly, I reject Respondent's defense herein.
Respondent, in a fifth affirmative defense, contends
that Respondent's objection to the election in Case 22-
RC-7833 must be heard and finally determined in a rep-
resentation proceeding prior to any unfair labor practice
proceeding and that a hearing in the above representa-
tion proceedings cannot properly be combined with a
hearing in an unfair labor practice proceeding in the in-
stant case (Case 22-CA-9695).
The Board recently held in Campbell Products Depart-
ment, 260 NLRB 1247 fn. 2 (1982), that a remand, similar
to the remand in the instant case, does not act to reopen
the underlying representation case. Rather, respondent
must prove its objections to the underlying election in
the C case proceeding submitted to the appropriate cir-
cuit court. Accordingly, Respondent's fifth affirmative
defense is rejected.
I. The Appropriate Evidentiary Standard
As set forth and discussed below, Respondent alleged
as its fifth defense that the remand required a reopening
of the record in Case 22-RC-7833. Consistent with this
affirmative defense, Respondent moved to reopen the
representation proceeding accordingly. This motion was
denied. Respondent thereafter requested special permis-
sion to appeal my ruling, which request was granted. Re-
spondent's special appeal was denied by the Board on
January 21, 1982. In connection with Respondent's
motion herein, Respondent's attorney contended that the
evidentiary standard to be applied during this hearing
would be that applicable to representation proceedings,
548
VITEK ELECTRONICS
rather than that applicable to unfair labor practice pro-
ceedings.
Section 10(b) of the Act requires that "so far as practi-
cable" unfair labor practice proceedings "be conducted
in accordance with the rules of evidence applicable in
the district courts of the United States under the rules of
civil procedures for the district courts of the United
States." The Board has noted, citing the relevant legisla-
tive history of Section 10(b) of the Act, that the phrase
"so far as practicable" provide the administrative law
judge with "considerable discretion as to how closely he
will apply the rules of evidence." Alvin J. Bart & Co.,
236 NLRB 242 (1978). The Board's Rules and Regula-
tions, Section 102.66(a), provide that "the rules of evi-
dence prevailing in courts of law or equity shall not be
controlling" in representation proceedings. The practical
difference between the evidentiary standards applicable
in the two kinds of proceedings is nebulous. As set forth
above the rules applicable to unfair labor practice pro-
ceedings provide considerable discretion as to how close-
ly the administrative law judge will apply the rules of
evidence.
At the outset of the hearing herein and on various oc-
casions throughout the course of hearing, I ruled that I
would conduct the instant proceeding "utilizing the Fed-
eral Rules and Civil Procedure as a guide, within [my]
judicial discretion." In this connection I further ruled
that I would be guided by the Federal Rules of Evidence
"as far as practicable" with regard to my evidentiary rul-
ings. Throughout the course of the hearing Respondent's
counsel objected to my rulings particularly as they relat-
ed to hearsay testimony. In each case I ruled that my
evidentiary rulings would apply equally regardless of
whether the instant proceedings were a representation
case or an unfair labor practice case.
In the Union's brief, counsel for the Union requested
that I make clear in my decision to what, if any, extent
my evidentiary rulings would have been different in a
representation proceeding. I have carefully examined the
entire record herein and conclude that all of my rulings
made in this case would have been exactly the same
were this proceeding a representation proceeding.
Conclusions
I therefore conclude that Respondent's Objections 3
through 8, to the conduct of the election, are each utter-
ly and entirely without merit. I further conclude that
such objections were frivolous, and filed solely for pur-
poses of avoiding Respondent's bargaining obligation.
This case represents a case book example of that type of
abuse of the Board's processes predicted by Board
Member Penello in his dissent in General Knit of Califor-
nia, supra, 239 NLRB 619 (1978), wherein he observed
that an employer determined to defeat the desires of its
employees for collective representation need only file an
objection alleging a misrepresentation and that by so
doing, set into motion the Board's postelection machin-
ery which from a Board election to a circuit court opin-
ion takes approximately 2 years' time. This appears to be
the timetable in the instant case.
CONCLUSIONS OF LAW
I. Respondent 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-
ing of Section 2(5) of the Act.
3. Respondent failed to establish the objectionable con-
duct set forth in Respondent's Objections 3 through S
described above.
RECOMMENDATION
Upon the foregoing findings of fact, conclusions of
law, and the entire record, pursuant to Section 10(c) of
the Act, it is recommended that the Board's Order in
Vitek Electronics, 249 NLRB 885 (1980), be affirmed.
549