G. W. Murphy Industries

National Labor Relations Board - Board Decisions

Apr 27, 1970

182 N.L.R.B. 158 (N.L.R.B. 1970)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reed Seismic Company , A Subsidiary of G. W. Murphy
Industries and Local 826 , International Union Of Oper-
ating Engineers , AFL-CIO. Cases 16-CA-3534 and
16-RM-385
April 27, 1970
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVE
By MEMBERS FANNING, BROWN, AND JENKINS
On September 2, 1969, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. In addi-
tion, the Trial Examiner found no merit in the objections
to the election filed in Case 16-RM-385 and recommend-
ed that the objections be overruled and that the Union
be certified. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed.' The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in this
proceeding, and hereby adopts the findings,2 conclusions,
and recommendations of the Trial Examiner, except
as modified herein.
We shall overrule Respondent's objections to the
election and certify, the Union as recommended by the
Trial Examiner. We do so only, however, on the basis
that the credited evidence fails to establish either that
the Union was responsible for the conduct alleged in
the objections, or that the conduct was of such nature
as to preclude the exercise by the unit employees of
a free choice in the election. More specifically, we
reject the Trial Examiner's finding that employee Barham
acted as Respondent's agent in keeping union activities
under surveillance and circulating rumors of union vio-
lence. It is apparent from the Trial Examiner's Decision
that his finding in this regard is based on two grounds,
viz., (1) an affidavit given by Barham, more than 18
' The Trial Examiner erred in excluding letters presented by the
Respondent to demonstrate the wage policy of the Respondent as
applied in other plants The admission of this evidence , however, would
not change our Decision herein
2 Respondent ' s exceptions are in large part directed to the Trial
Examiner's credibility resolutions We will not , however, overturn a
Trial Examiner ' s resolutions credibility unless the party excepting thereto
demonstrates by a clear preponderance of the relevant evidence that
they are incorrect Standard Dry Wall Products , Inc , 91 NLRB 544,
enfd 188 F 2d 363 (C A 3 ) In our opinion Respondent has not sustained
that burden here
months prior to the instant hearing, in an unconnected
proceeding involving different parties and issues, and
(2) the circumstances attendant to Barham's reporting
union activities to Respondent. We find that although
the affidavit may have been properly admitted to show
inconsistencies with Barham's present testimony as to
the contents thereof, it was not entitled to any substan-
tive or affirmative weight in determining whether he
was acting as Respondent's agent in the conduct here
involved. Moreover, we are of the opinion that the
attendant circumstances relied upon by the Trial Examin-
er in the instant case do not provide an adequate basis
for finding that Respondent was responsible for Barham's
conduct. It follows, therefore, that we also reject the
Trial Examiner's further finding that by virtue of Bar-
ham's conduct Respondent engaged in massive unfair
labor practices warranting the issuance of a general
bargaining order.3
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 826, International Union of Operating Engi-
neers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed at Respondent ' s plant in San Angelo, Texas,
excluding office clericals, salesmen, guards, watchmen,
and supervisors as defined by the Act, constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. By granting wage increases to 25 employees on
December 6, 1968 , in the appropriate unit found above
without first bargaining with the aforementioned Union
as the exclusive bargaining representative of the employ-
ees in that said appropriate unit, Respondent has refused
to bargain with said Union in violation of Section 8(a)(5)
and (1) of the Act.
5. The unfair labor practices engaged in by the
Respondent affect commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , the National Labor Relations
Board hereby orders that the Respondent , Reed Seismic
Company, a subsidiary of G. W. Murphy Industries,
San Angelo , Texas, its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
3 We note in this connection that the only refusal to bargain alleged
in the complaint pertained to the unilateral wage increase, which we
find, in agreement with the Trial Examiner, constituted a violation
of Section 8(a)(5) under the circumstances Zelnch Company, 144 NLRB
1381, 1392, enfd 344 F 2d 1011 (C A 5) Barham's conduct was not
alleged or litigated as independently violative of Section 8(a)(1)
182 NLRB No. 21
REED SEISMIC COMPANY
(a) Granting unilateral wage increases to employees
in the appropriate unit found above without first bargain-
ing collectively with Local 826, International Union of
Operating Engineers , AFL-CIO.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the National Labor
Relations Act:
(a) Post at its place of business in San Angelo , Texas,
copies of the attached notice marked " Appendix. 114
Copies of said notice , on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent ' s authorized representative , shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered , defaced, or covered by any other mate-
rial.
(b) Notify said Regional Director , in writing , within
10 days from receipt of this Decision , what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Respondent ' s objections
to conduct affecting the results of the election conducted
on December 6, 1968 , in Case 16-RM-385 , as summa-
rized in the report . on objections and notice of hearing
issued on March 28 , 1969, by, the Regional Director
for Region 16 of the National Labor Relations Board,
be, and they hereby are , overruled
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Local 826, International
Union of Operating Engineers , AFL-CIO , has been
designated and selected by a majority of the employees
in the unit found appropriate as their representative
in Case 16-RM-385, for the purposes of collective bar-
gaining , and that , pursuant to Section 9(a) of the Act,
the said labor organization is the exclusive representative
of all employees in such unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages,
hours of employment , and other terms and conditions
of employment.
In the event that the Board's Order is enforced by a Judgment
of a United States Court of Appeals, the words "a Judgment of the
United States Court of Appeals enforcing an Order" shall be substituted
for the words "a Decision and Order "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT make unilateral changes in wage
rates, without first bargaining with Local 826, Inter-
159
national Union of Operating Engineers , AFL-CIO,
as the exclusive representative of all our employees
in the appropriate unit described below. The bar-
gaining unit is:
All production and maintenance employees
employed at our plant in San Angelo , Texas,
excluding office clericals, salesmen , guards,
watchmen , and supervisors as defined by the
Act.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of the rights guaranteed by Section
7 of the Act.
REED SEISMIC COMPANY;
A SUBSIDIARY OF G. W.
MURPHY INDUSTRIES
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, Room 8A24, Federal Office Building, 819 Taylor
Street, Fort Worth, Texas 76102, Telephone
817-374-5181.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner: Upon a charge
duly filed on February 6, 1969 , and thereafter amended
on February 10, March 14 , and April 7, 1969, by Local
826, International Union of Operating Engineers,
AFL-CIO, hereinafter referred to as the Union or the
Charging Party, the General Counsel of the National
Labor Relations Board, hereinafter referred to as the
General Counsel ' and the Board , respectively, by the
Regional Director for Region 16, Fort Worth, Texas,
issued its complaint dated April 7, 1969 , against Reed
Seismic Company, a subsidiary of G. W. Murphy Indus-
tries, hereinafter referred to as the Respondent or the
Company. The,complaint alleged that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Sections
8(a)(1) and (5) and 2 (6) and (7) of the Labor Management
Relations Act, 1947, as' amended , herein referred to
as the Act.
' This term specifically includes the attorney appearing for the General
Counsel at the hearing
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent duly filed an answer admitting certain
allegations of the complaint but denying the commission
of any unfair labor practices.
The parties agreed to a Stipulation for Certification
Upon Consent Election, approved by the Regional
Director for Region 16 on November 25, 1968, in an
agreed-upon appropriate unit . In this election held on
December 6, 1968, 26 employees in the appropriate
unit voted in favor or representation by the Union
against 23 employees who voted against such representa-
tion. The Employer filed timely objections to said elec-
tion on December 12, 1968. Prior to or at the time
of the Regional Director's preliminary investigation of
these objections the Company withdrew Objections V,
VII, VIII, IX, X, XI, and XIII with the approval of
the said Regional Director on March 26, 1969. On March
28, 1969, said Regional Director issued his report on
objections and notice of hearing in which he found
that the Company had presented "timely and substantial
evidence" in support of Objections I, II, III, IV, VI,
XII, and XIV which might, if credited, warrant setting
the election aside He thereupon ordered that a hearing
be conducted on such objections. On April 7, 1969,
the said Regional Director ordered that the aforemen-
tioned complaint and objections to election be consolidat-
ed and heard before a Trial Examiner.
Pursuant to notice a hearing thereon was held before
me in San Angelo, Texas, on April 29 and 30, and
May 1, 1969. All parties appeared at the hearing, were
represented by counsel or by union officials, and were
afforded full opportunity to be heard, to produce and
cross-examine witnesses, and to introduce evidence
material and pertinent to the issues. At the conclusion
of the hearing, oral argument was waived. Briefs were
received from General Counsel and Respondent on June
9, 1969.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find:
Reed Seismic Company, a subsidiary of G. W. Murphy
Industries, is, and has been at all times material herein,
a corporation duly organized under and existing by
virtue of the laws of the State of Texas, maintaining
its principal office and place of business in San Angelo,
Texas, where it is engaged in the manufacture of geophy-
sical drilling bits. Respondent, during the past year
in the course and conduct of its business operation,
sold and distributed products the gross value of which
exceeds $500,000. During the same period of time,
Respondent shipped and transported products valued
in excess of $50,000 from its place of business in San
Angelo, Texas, directly to States of the United States
other than the State of Texas.
Accordingly, I find that Respondent is now, and has
been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE UNION INVOLVED
Local 826, International Union of Operating Engi-
neers, AFL-CIO, is a labor organization admitting to
membership employees of Respondent.
III THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS
TO THE ELECTION
A. The Basic Facts
Prior to July 1, 1968, Economy Bit and Supply Co.,
Inc., existed in San Angelo manufacturing rotary drill
bits for the seismograph industry in the exploration
for oil and in the construction and mining industries.
On July 1 Economy Bit was acquired by Murphy
Industries and renamed Reed Seismic Company, a sub-
sidiary of G. W. Murphy Industries.2 Kenneth Epley,
former joint owner of Economy, remained as plant
manager for Respondent. In conferences about that date
Industrial Manager James Wynne, informed Plant Man-
ager Epley that Respondent desired to add approximately
$50,000 in improvement to plant and to institute improved
wages and shorter hours as well as other employee
benefits in accord with Respondent's general practice
after such acquisitions.
Thereafter during further consultations the employees
were placed in various job classifications and wage
rates for such classifications were set by Epley and
Wynne. On or about October 25, 1968, Respondent
ordered Epley, somewhat over his objections, to put
the new job classifications and wage rates into effect.
On October 25, Epley called each employee into his
office individually and notified the employee of his new
job classification and wage rate and, in addition, assured
each employee that thereafter his wage rate would be
reviewed approximately every 60 days. Thus on October
25, 43 employees, practically the entire employee roster,
received individual wage increases varying from 20 cents
to 90 cents per hour with the average increase being
somewhere around 60 cents per hour.
Thereafter almost weekly I to 4 employees would
receive wage increases, generally amounting to 10 cents
per hour, until the week of December 13 when Respond-
ent increased the wages of 25 employees, all but 2
of which were 10 cents per hour and the others 5
cents per hour.3
On August 16, 1968, Respondent employed Arnold
Filburn as a machinist at $2.75 per hour which was
raised to $3 per hour by September 6. With one exception
Filburn's rate of pay was the highest nonsupervisory
rate in the plant. He received no increases thereafter
either on October 25 or December 13 purportedly because
Y G W Murphy Industries is another conglomerate headquartered
in Houston, Texas
a It is this unilateral wage increase which is the basis for the refusal-
to-bargain complaint
REED SEISMIC COMPANY
he was at the top of his job classification wage rate
although Respondent's job classification shows the top
rate in his classification to be $3.15 per hour.
On September 2 Respondent hired Rayford (Ray)
Barham at $1.75 per hour. Being dissatisfied with this
wage Barham promptly set out to form a union with
$100 initiation fee, per member, throw a beer "blast,"
and go union. After listening to Barham a couple of
days about this venture, Filburn told him that he, Bar-
ham, did not want a union, he just wanted a beer
party, and to leave him, Filburn, alone. By December
13, Barham was earning $2.65 per hour.
By October at least the employees in the plant were
talking about the possibilities of joining a union. One
such employee asked Foreman Carl Groat if he had
heard anything about a union.
Although the employees were talking unionization,
it was Filburn, previously from the Detroit area, who
got in touch with the president of the local telephone
union who explained to Filburn and a group of some
seven employees how unionization could be accom-
plished.
So on November 11, at the request of Filburn, the
then business manager of the Union, Frank Parker 4
came from Big Spring, Texas, and met with approximate-
ly 17 of Respondent's employees. After explaining union-
ization, Parker left the room and the men present voted
unanimously to-join the Union. Thereafter the employees
selected Filburn as the shop steward to handle the
organizational campaign and to collect the initiation fees.
All the men present signed authorization cards for the
Union.
On November 13 Barham signed a union authorization
card and "ultimately" paid his $10 initiation fees There-
after Barham appeared to become active in the organiza-
tional work.'
Respondent officials admit knowing of the union organ-
izational effort on or before November 19.
On November 20 Filburn, a day-shift employee having
learned that Barham had telephoned the Board's Fort
Worth office about the rumored filing of a company
petition for an election, came into the plant during
the night shift, walked over to Barham and, according
to Barham's testimony, told Barham, "You keep your
God damn ass out of this business, this union.business.
I'm the one with the ball and I'm the one that's gonna
run with it, and don't you ever 'stick your nose into
it again." Filburn was both angry and emphatic. After
making this statement, he 'walked out of the plant.
A number of the shift employees testified that they
noted the confrontation.
During the breaks that evening Barham told the
employees of the threat allegedly made by Filburn during
Parker resigned this position on December 4
In his original direct testimony Barham denied doing either, but,
to use his word, "ultimately" he had to admit doing both
H Barham explained that his purpose in joining the Union was so
he could get hold of all the Union's "propaganda" and thereby "expose"
the Union to "everybody that would listen " He candidly acknowledged,
"Anyway I could discredit the Union, I was going to do that" and
"I dislike unions, if you want to know the truth "
161
the confrontation and convinced them that he, Barham,
had been "shaken" by the episode. In fact Barham
appeared to be so afraid of the possibilities of violence
from Filburn that he requested employee Pat Dula to
follow him "halfway" home in order to 'protect him
from anticipated violence from Filburn. During these,
same break periods the night-shift "leadman" Edward
Michael Wright told the employees that Filburn had
violated a company rule in returning to the plant during
a shift other than his own. This was a new rule so
far as Dula knew.
On November 21 the Respondent over the signature
of Foreman Carl Groat reprimanded Filburn in writing
for having returned to the plant the previous evening.
Apparently angered by this written reprimand Filburn
saw Barham that day at some unspecified time and
told Barham, according to Barham, "I thought • I 'told
you to keep your nose out of this business and -I'm
gonna whip your ass." Barham's answer on this occasion
was, "if [Filburn] felt lucky to go ahead." -
About 2 days later there were two telephone calls
between Filburn and Barham. The versions of Barham
and Filburn as to the contents of these telephone calls
were fundamentally opposed, a conflict which will be
resolved hereinafter. According to Barham's version
of these calls, Filburn made almost innumerable threats
of possible dire consequences to those employees who
did not support the Union in the event, the Union did
not win recognition or if the Union had to go out
on strike. ,
I Admittedly Barham recounted these alleged threats
of violence by Filburn to "everybody who would listen.'.'.
Rumors of union violence were soon throughout the
plant. '
A day or so thereafter Plant Manager Epley made
a speech to the assembled employees. In this speech
Epley called attention to these "rumors" of violence
and assured the employees that the Company had made.
arrangements with the police to provide protection and
to enforce the laws of the State of Texas.
A consent-election agreement was reached by and
between the Respondent and the Union and approved
by the Regional Director on November 25, 1968, which
provided for the holding of an election on the representa-
tion question on December 6.
After holding a second meeting at the Ramada Inn
after November 11, the Union on the evening of Decem, -
ber 5 and the morning of December. 6 prior to the ,
election held meetings in an auditorium in the Central
National Bank at, San Angelo. The use of this room-
was rent free on. condition that the Union clean, up
the place after the meetings.
At the election of December 6, 26 ballots were cast
in favor of representation by the. Union and 23 ballots -
against such representation. ,
At some undisclosed time Frank Parker for the 'Union'
and Filburn took some 37 signed union authorization
cards into the office of Epley, placed. the signed cards
on Epley's desk, and asked for recognition and bargain-'
ing. Epley shied away from the cards with the remark,
"I have a good faith doubt." As thereafter Epley would,
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only reiterate the above remark, Parker and Filburn
picked up the cards and departed the office.
On December 12 Respondent filed 14 objections to
the conduct of the election.
On that same day Respondent granted wage increases
to 25 of its employees, admittedly without notification
to or bargaining with the Union.
On February 6, 1969, the Union filed its first charge
in this matter which was thereafter amended.
On or before March 26 the Company withdrew 7
of its 14 objections to the election. After investigation
and on March 28, 1969, the Regional Director found
that the evidence presented by the parties on the objec-
tions raised substantial factual issues as to the agency
status of Arnold Filburn , an issue as to whether the
conduct alleged rendered the free expression of choice
impossible as well as serious issues of credibility. He
determined that a hearing on the objections should be
conducted before a Trial Examiner.
On April 7 the said Regional Director filed the instant
complaint charging Respondent with violations of Section
8(a)(1) and (5) of the Act and consolidated the hearing
on that complaint with the Respondent's objections to
the election.
At the hearing herein evidence as to the unfair labor
practice was heard first and, after that was completed,
the evidence on the objections was presented. It seems
more logical for purposes of this Trial Examiner's Deci-
sion to consider those matters in inverse order because,
if the objections should be sustained, then there would
be no possibility of a refusal-to-bargain finding because
there would be no bargaining representative.
employees so they could not arrive at a free expres-
sion of their choice. These various incidents were
clearly corrosive of the atmosphere of free choice.
This points up the fact that the election was held
in an atmosphere of fear of reprisals which was
not conducive to the sort of free and untrammeled
choice of representatives which the National Labor
Relations Act contemplates.
The prejudicial conditions that existed at the
time of the elections are evidenced by the fact
that these various incidents were not isolated occur-
rences. The threats and misstatements spread
throughout the plant and every employee had knowl-
edge of them. The threats and misstatements, more-
over, were made either by actual spokesmen for
the Union or employees who obviously had authority
to speak for the Union. Under these conditions,
and in view of the fact that the election was extreme-
ly close-a change of two votes would have been
decisive-it cannot be doubted that the threats and
misstatements affected the outcome of the election.
[Emphasis supplied.]
In his March 28 report on objections the Regional
Director found that said objections had raised substan-
tial, although disputed, questions which could best be
determined by record testimony. This Trial Examiner
agrees that, if the conditions described in the objections
existed due to union efforts, then the election would
not have been held under the "laboratory conditions"
which the Board requires and the election, therefore,
should be set aside as requested.
2. Smear campaign
B. Objections to the Election
1. Company contentions
On December 12, 1968, the Company (Respondent)
filed its 14 objections to the election held on December
6, 1968. Three of these referred to rumors then current
throughout the plant: (1) rumors of possible union vio-
lence allegedly circulated by Arnold Filburn and "by
certain [unnamed] union adherents"; (2) a rumor that
the local newspaper, the San Angelo Standard Times,
and the Union had conspired together "to start a `smear
campaign' against Ken Epley and the Company in order
to get Epley fired and to force the Company out of
business in San Angelo"; and (3) a rumor that the
president of Central National Bank in San Angelo had
said that he allowed the Union to use a bank meeting
room for its last meetings because the bank wanted
more unions in San Angelo. The remaining objections
concerned certain threatening statements made allegedly
by Filburn or "known union adherents" to named
employees or which had been "overheard" by one
Edward Michael Wright. These last objections in general
merely reiterated or corroborated the rumors of possible
union violence.
The Company summed up its objections as follows:
The above misstatements and threats had the
natural and foreseeable effect of coercing the
As noted in the Regional Director's report, at or
prior to his investigation of the objections Respondent
withdrew Objections V, VII, VIII, IX, XI, and XIII.
However at the hearing Respondent requested, and was
permitted, to reinstate Objection X dealing with a threat
allegedly made by Filburn to 73-year-old employee Pied-
fort.7 Also, while giving an unresponsive answer on
direct examination, "leadman" Edward Michael Wright
opened up the rumor concerning the Central National
Bank, which Respondent had previously withdrawn. I
thereupon ruled that Objection VIII had likewise been
reinstated. Hence Objection VIII was back in the case.
This Objection VIII regarding the alleged "smear
campaign" can be disposed of relatively quickly. In
one of his several speeches to assembled employees
Plant Manager Epley referred to a rumor of a "smear
campaign conspiracy" between the Standard Times and
the Union to get Epley discharged and Respondent
run out of San Angelo and quoted the newspaper as
denying the same. There is no evidence in this record
as to the source of this rumor although Epley's speech
contributed to its circulation and credence. Industrial
' Filburn denied making this threat of physical violence to the 73-
year-old Piedfort It is undemed that on one occasion Piedfort himself
denied that the threat was made As Filburn pointed out it would
not have assisted the union cause for Filburn to have physically threat-
ened a man 40 years his senior I credit Filburn's denial
REED SEISMIC COMPANY 163
Relations Manager Wynne testified that the rumor was
reported to Respondent's management by Foreman
Groat. But although a witness for Respondent, Groat
was not asked a single question regarding the rumor
or its source. "Leadman" Edward Michael Wright,"
who brought Objection VIII back into the case, was
admittedly unable to identify any source for the rumor.
When asked about this alleged conspiracy by Epley
and Wynne, the incredulous editor of the newspaper
asked, according to Wynne, "Well, my gosh, you don't
believe something like that, do you?" Epley and Wynne
admitted that "personally" they did not but thought
that the "young and impressionable" employees might.
Hence Epley denied the truth of the rumor in one
of his several speeches to the employees.
Even young and impressionable employees must be
credited with average intelligence and common sense.
Consequently this conspiracy rumor of a smear campaign
must have been just as incredible to them as to the
Standard Times' editor and to Respondent's officials.
It hardly merited a public denial.
This is particularly so because it stands to reason
that the Union would hardly seek to make friends and
influence voters to vote for it with a rumor that it
was attempting to eliminate the jobs of those very
same voters. If believed at all, this rumor was calculated
to redound to Respondent's-not the Union's-benefit
by forcing the employees to vote against union represen-
tation for fear the Union would eliminate their employ-
ment. One can hardly believe that the Union would
have been responsible for such a rumor.
Obviously Respondent's original decision to withdraw
Objection VIII was correct. Consequently I will dismiss
Objection VIII for all the reasons stated heretofore.
3. The bank rumor
On the evening of December 5 and again on the
morning of the election, December 6, the Union held
two meetings in a conference room at the Central Nation-
al Bank in San Angelo. The bank had allowed the
Union the use of this room rent free on condition
that the Union clean up the room and the ashtrays
after the meetings. This was the bank's customary prac-
tice for such meetings. Admittedly the fact that the
" Edward Michael Wright described himself at the hearing as "night
leadman" with the sole duty "to instruct trainees in the operations
of the machines" but, in his words, "not a supervisor" and "not
in a supervisor capacity " He had voted in the election of December
6 without objection However it developed during his testimony that
he had fired one employee in "an emergency case There was no
one [else] there to do it," that he is in charge of the plant at night
"when nobody else [superior] is there" and nobody superior "usually"
is present at night, that he gives orders to the employees under him,
that he is required to report periodically on the employees under him
to Epley, and it was undenied that employees have been told by
Epley and Foreman Groat that Edward Michael Wright has the authority
to discharge In addition the Union refused him membership, obviously
on the theory that he was a supervisor Under all these facts, if
important, I would without hesitation find Edward Michael Wright
to be a supervisor In addition his original testimony as to his "nonsuper-
visory" capacity impaired the credibility of Edward Michael Wright
Union had gotten the room rent free was mentioned
during the union meetings.
Ray Barham, as usual, attended the meeting on the
morning of December 6, as best one can tell from
the transcript. Following this meeting Barham reported
back to Plant Manager Epley that the union officials
had stated during these meetings that the bank president
had informed the union officials that he was glad to
permit the Union to use the room because San Angelo
needed more unions as they would be good for the
city economically. Barham also testified that he made
his report to Epley "too late" for the Respondent to
be able to make a public answer to these alleged state-
ments prior to the election. Several other of Respond-
ent's witnesses also testified that they had heard some
such comment about the room being given the Union
rent free. This was natural chitchat.
Even if true, this rumor is of such little significance
to the election as to merit dismissal here. I so find.
In addition as the testimony as to the bank president's
alleged statement rests largely on Barham's testimony,
it is subject to the same infirmities noted hereafter.
Accordingly I will dismiss Objection XII.
4. Rumors of union violence
It is acknowledged on all sides that for some time
prior to and at the date of the election there were
throughout the plant numerous rumors of possible union
violence if the vote on December 6 went against the
Union or if the Union were forced to call a strike
after certification. It is these rumors of union violence
on which Respondent relies when it claims that the
atmosphere created thereby destroyed the "laboratory
conditions" the Board seeks at an election and prevented
the employees from expressing their free and untram-
meled choice in the election booth."
In the recent case of Home Town Foods, Inc.,
d/b/a Foremost Dairies of the South v. N.L.R.B., 416
F.2d 392 (C.A. 5), the court said:
The "laboratory conditions" test represents an
ideal atmosphere in which a free choice may be
made by employees, protected from interference
by employer,5 union," Board agent [Footnote omit-
ted.] or other parties." As to any conduct objected
to as interference, the critical Board determination
is whether the employees were permitted to register
a free choice. Cf. N.L.R.B. v. Southland Paint
Co., 5 Cir 1968, 394 F.2d 717, 727 . . and
the case from which it quotes, N.L.R.B. v. Lake
Butler Apparel Co., 5 Cir 1968, 392 F.2d 76, 82
. ("The struggle is between the employer and
the union, but the right to select is the employees.")
[Footnote omitted.]
'See, e g , Raytheon Co. 173 NLRB No 10
1968-2 CCH NLRB paragraph 20, 216 (employer solicited
employee grievances and offered " vote no" buttons).
" General Shoe Corp , 77 NLRB 124
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4nchot Coopltnt Co Inc 168 NLRB 218 1968-1
CCH NLRB p it igr iph 21 908 (supervisor contact with
only 3 of 120 employees) intctcontntcntal Mfj, Co Inc
167 NI RB 769 1968-1 CCH NLRB paragraph 21
814 (supervisor st itements to 6 of 730 employees) Nation
n,dc Papers 1nc 147 NLRB 1030 1964 CCH NLRB
p it agr iph 13 226 (w irning of dr istic economic detriment)
Gtcat A & P Tca Co Inc 140 NLRB 133 1962
CCH Ni RB p ar agr aph 11 839 (employer interview of
employees sway from work station) Plochntan R
Hannon Chtiis Lanc Foods Inc 140 NLRB 130
1962 CCH NI RB p ar agr aph 11 832 (showing of movie
And Women Must Weep ) 7tane Co 137 NLRB 1506
1962 CCH NLRB p'lragr aph I 1 450 (withheld 15
from iegul it p tycheck and immedi itely there after returned
s ime to show effect of union dues)
'See e g Dolco Pkg Coil) 1969 174 NLRB No
16 1968-2 CCH NI RB p tr igraph 20 470 (union
misrepresent anon of contr act terms with unionized area
employers) Rchmai Inc 1968 173 NLRB No 215
1968-2 CCH NLRB paragraph 20 441 (union misuse
of office it election notices) Cianhat Coil) 1968 173
NLRB No 200 1968-2 CCH NLRB paragraph 20
416 (union inference of in in-igement preference for union
too I ate for rebutt il) K Matt 1968 173 NLRB No 84
1968-2 CCH NLRB p iragnph 20 290 (substantial
w age d it i misrepresent ition by union) Knapp Sherrill
Co 1968 171 NLRB No 171 1968-2 CCH NLRB
p it agr mph 22 597 (union threats of job loss to non
supporters) Stat Expansion Industries Coip 1968 170
NLRB No 47 1968-1 CCH NLRB paragraph 22
243 (union electioneering) Milchon Inc 170 NLRB No
46 1968 -1 CCH NLRB p iragraph 22 245 (list
minute convers ition with voters by union agent )
[footnote 7 omitted]
"Sec e g Hents I Stcgel Inc 165 NLRB 493 1967
CCH NI RB par mgr mph 21 483 (interference by, anti
union townspeople) Diamond Statc Poulhs 1953 107
NI RB 3 (conduct outside polls on election day
by woi kern from neighboring pl ant)
If the loss of laboratory conditions here was due
to union efforts as Respondent ' s objections claim
through authorized union officials , including Filburn,
or "union adherents" possibly then the election of
December 6 should be set aside With the existence
of the rumors acknowledged causing a possible loss
of the `laboratory conditions," it now becomes neces
nary to locate the source of these rumors and the party
t esponsible for the circul i tion of said rumors
The o i c and chit f c it culator of these rumors of
v ^,1, e in the pl ant tnd among the employees admittedly
,is Ie ty B it ham i ho testified that he told "everybody
that would listen about the threats Filburn allegedly
m ule to hint thei by starting the rumors
Barham maintained that all he was doing was repeating
threats which had bcen made to him over the telephone
by the Union ' s in-plant organizer Filburn
As a witness for Respondent Ray Barham testified
that on or about November 23 he had two telephone
conversations in one evening with Filburn According
to Barham ' s testimony , Filburn telephoned Barham and
solicited Barham ' s cooperation and influence with his
fellow employees on behalf of the union organizational
drive during which Filburn pointed out that he had
some $5-6,000 worth of paintings hanging in his living
room and a $6 000 automobile , all contributed to him
for his organizational services by the Union 10
However, according to Barham , when Barham reso-
lutely refused his cooperation despite these blandish
ments , Filburn threatened as follows
And he said-about that time there was a steel
strike also going on where a policeman got shot
up and this and that and he said, "This particular
union might have to teach these people around
here a lesson ," that they had been kicked out
of San Angelo on numerous occasions and, he
said "For instance filling stations have been shot
up," and he said "For instance, somebody might
poke a hole in your gas tank with an icepick and
then lead a wire from there to a brake line and
if you stepped on your brakes your whole car
would blow up," and so along with this he kinda
hinted that he thought that I would be healthier
if I kinda went along with this
TRIAL EXAMINER Just tell us what he said , not
what he indicated
THE WITNESS Well, that is what he said I'd
be healthier if I'd go along with it
TRIAL EXAMINER Okay
THE WITNESS I told him it didn ' t make any
difference to me, that I wasn't going along with
it, and that was the extent of the `phone call
Q (By Mr Berry) Did you relate this occurrence
to anyone else"
A Yes sir, I'm quite sure I told numerous people
about it
Q Did this statement become known in the
plant"
A I'm quite sure it did
Barham himself appraised the effects of his efforts
along this line as follows
A It definitely frightened the employees to hear
of the things that were stated to me Things that
could happen to me, because they knew it could
happen to them also I mean all you have got
to do is just stand up against some of these unions
and you are liable to get your head blown off
It's well known throughout the country 12
1" In his affidavit however Barham had estimated the value of these
paintings at $8-10 000 and the automobile at $8 000 The facts disclose
that the paintings referred to in Filburn s home had been painted
by Filburn s brother who was a professional artist in San Angelo
or by Filburn himself who was a weekend would be professional artist
and that the automobile mentioned was a 1966 Ford Mercury
11 Subsequently referring to this same telephone conversation Bar
ham testified I told just about everybody in the plant
11 Practically every time that Barham s attention was called back
to these telephone conversations throughout 'i long examination Barham
REED SEISMIC COMPANY 165
On the other hand Filburn's testimony was in accord
as to the fact that he and Barham did converse by
phone twice during the course of one evening but other-
wise was in diametric opposition to the testimony of
Barham. According to Filburn, who admitted his distrust
of Barham, Barham telephoned him to request a position
of importance in the organizational drive, mentioning
Filburn's paintings and automobile as emoluments which
would be possible, if not probable, from such efforts
on his part. Later that evening, according to Filburn's
testimony, acting upon orders from the Big Spring union
officials and over his own objection, Filburn called Bar-
ham back and informed him that Barham had been
appointed shop steward for the night shift. In addition
to the above Filburn denied that he had made any
threats of any nature during these telephone conversa-
tions.
On the credibility issue thus raised between the testi-
mony of the two individuals, upon which this case
actually rests as it is Barham's testimony upon which
Respondent's objections either stand or fall because
Respondent's other witnesses testified in general only
to isolated comments allegedly made by either Filburn
or some other alleged "union advocate" or corroborated
Barham as to the existence of these rumors in the
plant, it is to be recalled that, prior to the telephone
calls in question, Barham had already on November
13 signed a union authorization card and "ultimately,"
Barham's word, paid his initiation fee to the Union,
facts which Barham originally denied but ultimately
was forced to admit when faced with documentary proof
thereof.
Barham's testimony further shows that "I dislike
unions, if you want to know the truth," that "if there
was a [union] meeting that I was aware of, I attended
it . . . for the explicit purpose of finding out the-
everything I could about this particular union" in order
to reveal it to "everybody that would listen" so as
"to discredit the union in any way I could."
If then, as was the fact, Barham was already known
from having executed an authorization card to be a
prounion employee, it is hard to believe that Filburn
would telephone him in order to importune Barham
to exert his influence on other employees to sign authori-
zation cards. That was to be assumed. It is even harder
to believe that Barham, with his ulterior motive in
joining the Union to discredit it "in any way I could"
still undisclosed, would reject Filburn's entreaty and
resolutely refuse to assist by joining the Union's effort
where he would have had an opportunity to acquire
all the "propaganda" so as to "expose" the Union
even better and to be able to subvert the Union from
volunteered additional threats unmentioned in his original testimony
An example of these subsequent amplifications is the following:
A And I'll tell you why Arnold Filburn told me people would
come down from Chicago that were a member of this same National
Operating Union-Operating Engineer's Union and you'd never
know who they were and they would hit you and they 'd be gone
and you're liable to be dead laying in the street or the gutter
somewhere
Now, that story' s been going all over that plant ever since
the beginning of time
within. If Barham is to be believed as to these telephone
calls, Filburn's alleged phone call was the golden oppor-
tunity for which Barham was covertly playing. Yet
Barham would have us believe that he adamantly refused
Filburn's offer. Mr. Barham proves himself inconsistent
to say the very least . One can believe one or the
other of Mr. Barham's tales-but not both simultaneous-
ly. Consistency obviously was not Barham's forte. It
was at this point I began to lose faith in Mr. Barham.
Barham's honesty as a witness is further exemplified
by the following excerpts from his testimony taken
within 23 pages of the transcript:
Q. [By General Counsel] Did you report to any-
body in the company that you had attended this
[union] meeting? I mean management.
A. I did not report.
Q. [Mr. Snow] Did you at any time make any
statement to any supervisory people about the
union?
TRIAL EXAMINER: Which case are we talking
about?
MR. SNOW: In this case here.
TRIAL EXAMINER: All right.
Q. (By Mr. Snow) In the one that we are here
involved in now?
A. I don't remember.
Q. (By Trial Examiner) Did you furnish informa-
tion to this company here about the union campaign?
A. I have not passed out-no, sir I'll answer
that no, sir.
Q. Orally or in writing?
A. Orally, yes, sir. I have passed on to this
company things that were brought up at the meet-
ings, at the union meetings.
Q. Was that one of the reasons that you attended
the union meetings?
A. That was one of the reasons.
Q. (By Trial Examiner) About how often, Mr.
Witness, did you report these matters about the
union and the union campaign to Mr. Epley?
A. Just about any time that I felt that there
was slander involved or any time that I felt that
there was actions going on that he [Epley] should
know about. [Emphasis supplied.]
Perhaps the most revealing testimony by Barham in
this regard occurred some 16 pages of transcript previous
to those cited above where Barham testified as follows:
THE WITNESS: . . . If there was a [union] meeting
that I was aware of, I attended it.
Q (By Mr. Benson) Why did you attend them?
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A For the explicit purpose of finding out the-
everything I could about this particular union
Q What was that for"
A For my own benefit
Q Did you reveal it to anyone"
A I certainly have
Q Who"
A Everybody that would listen
Q Everybody that would listen to you"
A That's right
Q Management too9
A I didn't say management Everybody that
would listen-
Q They listen , don't they"
A Everybody that I worked with [Emphasis
supplied ]
With specific reference to the telephone calls contain
ing the alleged threats of violence by Filburn , Barham
testified on direct examination as follows
Q (By Mr Berry ) Did you relate this occurrence
[the alleged telephone call threats] to anyone else9
A Yes, sir, I'm quite sure I told numerous people
about it
Q Did this statement become known in the
plant"
A I'm quite sure it did
Q (By Mr Berry) After the conversation with
Mr Filburn on the telephone did you call any
company people"
A I don't recall calling anybody
Q Did you ask to discuss this with any company
people"
A Did I ask who" Did I ask Arnold [Filburn]"
Q Did you ask any company people if you
could discuss this with them"
A I don't remember asking I probably did dis-
cuss it, but-
Q Then why did you discuss 0
A Well, because it was detrimental to the point
that I was trying to-this union is more of a chaos
type organization
THE WITNESS I felt that this organization was
more like the Maffia [sic] than anything I guess
you would object to that, too, but I talked to
everybody that I knew about this
Any time an organization will come in and make
threats if you don't want to go along with them
that's not the organization that-
MR BERRY I have no further questions
Q (By Mr Benson) Maffia What is the Maffia"
Q [The Trial Examinee] Now, what did you
do about the `phone conversations with Filburn"
Did you report those to Mr Epley"
A Only the one where Mr Filburn indicated
that people would be down here to make an example
of this town and of this company 13
Q Did you-was that-did that become well
known in the plant"
A Yes it did
Q How did it become well known?
A I told just about everyone in the plant
It is to be recalled that after receiving Barhams'
report of his alleged telephone conversations with Fil-
burn, Epley allowed 2 or 3 days to elapse while Barham
admittedly related the alleged threats to "everybody
that would listen," thereby starting the rumors, before
Epley assembled the employees for his first speech
during which he made pointed reference to the rumors
so created and assured the employees that Respondent
had already provided for police protection for them
The timing of these events hardly seems coincidental
There is another quirk in Barham's mentality or char-
acter which requires exposure here It is exemplified
by the following testimony of his
" It must he rec died that there were only two conversations and
both occurred the s ime evening B irh-im could not distinguish between
the two
*
THE WITNESS All right'
A Maffia comes in, tells you what you can and
can't do, if you don't do it look out
Q (By Mr Benson) Look out what"
A You are liable to get mowed down with a
machine gun
Out of his own mouth (as examples, see his testimony
quoted above) Barham proved himself to be unworthy
of credence as a witness Barham was neither frank,
candid, nor honest in his testimony His original testimo-
ny was in large measure ultimately proved to be untruth-
ful by the process of long, slow, and painful cross-
examination caused by his extreme reluctance to
acknowledge previous untruths Ultimately his reluctant
admissions approached the truth His demeanor through-
out corroborated the results of the cross examination
Accordingly I am able to credit little, if any, of Barham's
testimony except his ultimate admissions
On the other hand Respondent's brief attempts to
discredit Filburn because of certain inconsistencies in
his testimony Perhaps Filburn was not the most persua-
sive witness But this avails Respondent here nothing
because the burden of proof rested on Respondent in
these objections to the election to prove its case with
credible testimony " Because ultimately Respondent's
11 Southwestern Portland Cement Co v N I R B 407 F 2d 131
REED SEISMIC COMPANY
case on these objections rested almost exclusively on
the testimony of Barham, a completely discredited wit-
ness, Respondent has failed in its burden of proof,
regardless of Filburn's credibility.
Accordingly I must, and hereby do, discredit the
testimony of Barham in regard to the two crucial tele-
phone conversations with Filburn and credit the testimo-
ny and denials of Filburn in regard to these same conver-
sations. I found Filburn to be essentially an honest
witness. Specifically I find that Filburn made no threats
of violence to Barham or others over the telephone
or any other way which would in any manner justify
the alleged "rumors of violence" which Barham
informed "everyone that would listen" Filburn had
made.
This finding, of course, excludes the threat made
by Filburn on the evening of November 20, acknowl-
edged candidly by Filburn, "to kick his ass" if Barham
did not get out of his union business. This comment
is a common expression among men of all walks of
life during personal disagreements and is, of course,
not the type of statement which would, to the ordinary
mind, become the basis upon which to found a "rumor"
of generalized union violence. As noted heretofore from
his own testimony, Barham's mind was not that "ordi-
nary mind" when it came to unions or violence.
Accordingly I find the "threats" disclosed by Barham
to have been false.
Also from Barham's own reluctant admissions it
becomes clear that Barham was the source, the creator,
and the chief purveyor of the false rumors circulating
throughout the plant. Barham was obviously adept at
this art. On November 20 following his 2-minute confron-
tation on the night shift with Filburn, Barham was
able to convince a number of the workers on that
shift that he, Barham, had been "visibily shaken" by
the threat Filburn made that evening to kick Barham
in the ass. In fact Barham was so adept at the art
that he persuaded employee Pat Dula to follow him
"halfway" home supposedly in order to protect him
from Filburn. Neither Dula nor Barham, unfortunately,
explained how Barham knew that he would be safe
from Filburn on the last half of his journey home.
Admittedly Barham made the entire trip without trouble
from Filburn and also admittedly there has been no
violence at all to the date of the instant hearing.
The above findings effectively relieve the Union or
Filburn from any responsibility for the rumors of vio-
lence circulating in the plant.
But they do raise the question as to whether Barham
was acting solely on his own or whether, perchance,
he was acting for and on behalf of an undisclosed
principle.
So far as this record discloses, Barham was acting
on his own during the evening confrontation with Filburn
on November 20. Due to his consummate acting that
evening, the confrontation was promptly reported to
management so that the very next day Respondent gave
134 (C A 5) Also Polymers, Inc v N L R B , 414 F 2d 999 (C A 2)
167
Filburn a written reprimand for appearing at the plant
on a shift other than his own, an alleged rule about
which Pat Dula first learned during that evening from
Supervisor Edward Michael Wright.
However promptly after the two telephone calls dis-
cussed above on or about November 23, Barham "ulti-
mately" admitted that he reported his already discredited
version of those conversations orally to Plant Manager
Epley and then began spreading the alleged threats to
all employees "that would listen" with the result, as
already noted, that in Barham's opinion, at least, all
the plant employees were definitely frightened because
"what might happen to me, they knew might happen
to them." Then, after giving Barham 2 days in which
to get these rumors of union violence to practically
every employee, Epley chose to assemble the employees
for his first of a series of speeches against the Union.
In this first speech Epley chose to take cognizance
of, and aid in the circulation of, Barham's rumors as
well as to assure the employees that Respondent had
already provided them with police protection against
the Union and that the laws of the State of Texas
would be enforced. The timing of Epley's message hardly
seems coincidental when it is recalled that throughout
this whole period from November 23, at least, until
the morning of December 6, election day, Barham contin-
ued to report "orally" to Epley on anything and every-
thing Barham thought might be of interest to Respondent,
including the names of those employees who had signed
union authorization cards. This same surveillance and
reporting continued to the very morning of the election
when Barham reported to Epley the alleged favorable
opinion of the president of Central National Bank in
regard to the presence of unions in San Angelo, a
report Barham testified regretfully was made "too late"
for Respondent to make public reply.
Therefore it is all too clear that the Respondent knew
of Barham's antiunion activities at all times material
here, consented thereto and indeed coordinated its own
antiunion activities with those of Barham and thus obvi-
ously acquiesced therein. These efforts of Barham and
Respondent were too well coordinated for it to have
been accidental.
The facts as thus disclosed by Barham spell out
at least a prima facie case of agency between himself
and Respondent with Barham acting as Respondent's
undercover agent, labor spy in keeping union activities
under surveillance for Respondent, and agent provocat-
eur in starting and circulating rumors throughout this
whole period. In the event that this prima facie case
so made were untrue, it became incumbent upon
Respondent to set that matter straight. The record shows
that Respondent's counsel saw the problem and request-
ed the right to recall Barham to the stand after further
consultation with Epley. The request was granted. But
Respondent chose, after consultation, neither to recall
Barham nor to call Epley with the result that Barham's
admissions stand uncontradicted on this record by
Respondent and the prima facie case of agency remained
undenied.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent chose instead to rely as a defense on
Barham's answer to a leading question that his surveil-
lance of union activities, his starting and circulating
false rumors, and his reporting constantly to Respondent
was all done "voluntarily." Even assuming that Barham
did act "voluntarily," this would not relieve Respondent
of responsibility for Barham's actions on its behalf
because the principle is well settled that an employer
can be held responsible for the activities of others
when they are carried on with its knowledge, acquies-
cence, and approval, all of which are clearly present
in the instant case. Further Respondent never disavowed
or "rejected" Barham's activities on its behalf.15
I asked Barham the "next logical question," to wit,
whether Respondent paid Barham for his activities on
its, behalf. I received a negative answer. Although there
is no direct evidence to the contrary, Barham's testimony
concerning his activities from December 1968 to March
27, 1969, when he returned to Respondent's employ
leaves much unanswered about Barham's finances during
that period. According to Barham, he bought a 1965
Chevrolet out of his savings apparently sometime in
December. This naturally depleted those savings made
at $2.60 per hour in Respondent's employ. He then
borrowed $450 from "GFC" and on January 9, 1969,
left Respondent's employ for Reno, Nevada, to enroll
in aviation school for a "crop duster, applicator's
license." On this trip Barham was accompanied by
his wife and one of two children. Due to the fact
it snowed "all the time," he left the aviation academy
at some undisclosed date"' and he and the family departed
from Reno. While in Reno he made approximately $50
per week working in a gas station and his wife contributed
her earnings (amount unspecified). According to Barham,
on leaving Reno he found all roads leading east "washed
out" and thus "had" to leave via California so that
the three of them toured to Los Angeles to see friends
and from Los Angeles they came "straight" back to
San Angelo" where he returned to Respondent's employ
at an increase of 10 cents per hour on March 27.
Frankly having had some experience in traveling myself,
I must confess to being highly skeptical that Barham
accompanied by wife and child could have made this
trip on the amount of money he would have us believe
he did. But, as I say, there is no direct evidence contra-
dictory to his testimony.
Even in the absence of proof of remuneration for
services rendered on Respondent's behalf, I have no
hesitation in finding that throughout this material period
Barham was at all times acting for and on behalf of
Respondent with its knowledge, consent, acquiescence,
and cooperation as Respondent's undercover agent, labor
spy in keeping union activities under constant surveil-
lance and reporting same to Respondent, and agent
provocateur in creating, starting, and circulating antiun-
ion rumors throughout the plant. Hence I find that
" Compare Talladega Cotton Factory, Inc , 91 NLRB 470, and Hadley
Mfg Corp . 106 NLRB 620
'^ "Time is of no conception to me," Barham testified
r, Barham's original testimony was that they returned "straight"
to San Angelo from Reno'
all times material, Barham was and is the agent of
Respondent within the meaning of Section 2(13) of the
Act. "I
Consequently I must, and hereby do, find that
Respondent is itself responsible, through its use of Bar-
ham as such agent, for starting and circulating false
rumors which might. have destroyed the "laboratory
conditions" and made the expression of the employees'
free and untrammeled choice impossible at the election
booth
Surveillance, covert as well as overt, is a well-recog-
nized violation of Section 8(a) (1) of the Act. Among
numerous cases this was recognized in N.L R.B. v
Atkins Saw Division of Nicholson File Co., 399 F.2d
907, 910 (C A. 5), where the court said:
. . . As this Court stated earlier, surveillance
is a violation of the Act
Because it indicates an employer's opposi-
tion to unionization, and the furtive nature
of the snooping tends to demonstrate spectacu-
larly the state of the employer's anxiety From
this the law reasons that when the employer
either engages in surveillance or takes steps
i" At the instant hearing General Counsel offered into evidence an
affidavit signed by Ray Barham dated October 10, 1967 Officials of
Texstar Plastics Division of Texstar Corporation, Barham's then employ-
er, took this affidavit from Barham in connection with a union organiza-
tional drive then being conducted at its plant by a union other than
the Operating Engineers and then used that affidavit as justification
for the discharge of the leading employee organizer of that organizational
effort See Texstar Plastics Division of Texstar Corporation, 171 NLRB
No 72, of which judicial notice was taken at the instant hearing
Mistakenly believing that General Counsel was offering this 1967 affidavit
for the limited purpose of proving certain inconsistent statements made
therein, I admitted said affidavit for that limited purpose only Although,
in making the above findings in the instant case, I have' limited the
use of this affidavit as so restricted in its admission, my,ruling restricting
its admission was in error After reading the affidavit, I am convinced
that the affidavit should have been admitted for all purposes
A reading of this affidavit proves beyond peradventure of a doubt
that Rayford (Ray) Barham commenced his vocation, or avocation,
as a labor spy and agent provocateur for employers whose plants
were at the time subject to union organizational activities as early
as October 1967 This affidavit proves that Barham's activities for
and on behalf of Texstar were identical. for all intents and purposes
to those he performed for Despondent in the instant matter
I must congratulate the Texstar official who took the 1967 affidavit
from Barham on the care and accuracy of that document because
the phraseology appearing in the affidavit was almost verbatim with
that used by Barham on the witness stand before me The document
was obviously Barham -
Without even having the opportunity of seeing Barham on the witness
stand or having Barham's oral testimony including cross-examinations
before them, as Texstar did not' choose to call him as a witness
in that case, neither the Trial Examiner nor the Board in that case
accepted the contents of Barham's affidavit as being true but instead
found that Texstar had discriminatorily discharged the employee there
involved using Barham's affidavit as a mere pretext for its claim of
having discharged the individual because of the violence Barham
attributed to him in his affidavit Barham's demeanor on the stand
would not have enhanced his credibility as a witness
On the financial aspects of Barham's vocation or avocation one
paragraph in the said Texstar affidavit is of interest here "In the
conversation last night Dewitt said-stick with this type of movement
and there's' `boo-coo money ' Just do a favor now And then for the
right person, and the company will take care of you financially "
Although in the affidavit Barham attributes this statement to another,
the sentiments and philosophy there expressed are obviously those
of Barham
REED SEISMIC COMPANY'
leading his employees to think it is going on,
they are under the threat of economic coercion,
retaliation, etc.
Hendrix Mfg. Co. v. N.L.R.B., 5 Cir. 1963,
321 •F.2d 100, 104-105 footnote 7, 53 LRRM
2831....
Although the facts here warrant an 8(a)(1) finding,
I am making no such finding of a violation of Section
8(a)(1) on account of, this admitted surveillance and
rumor mongering because (1) the matter was developed
along with the exposure of Barham during the portion
of ithe case devoted to the objections to the election,
and (2) the complaint herein contains no allegation of
a violation of the Act by reason of such surveillance
and other activities. Except for the procedural consider-
ations, I would find this surveillance, reporting to man-
agement, and the rumor mongering, with the knowledge,
consent, and acquiescence of Respondent, to be a viola-
tion of Section 8(a)(1) because the proof thereof is
so complete in this record. It is, undenied in this record
that Respondent "rejected,". repudiated, or disclaimed
none of Barham's admitted activities-although due
to the undercover nature of • those activities on behalf
of Respondent, this could hardly be anticipated.
Although Barham is the rock, or the sand, on which
Respondent's objections here must,either stand or fall,
Respondent's -brief refers to Objections VI, X, and
XIV19 where allegedly either Filburn or Gregston, appar-
ently a prounion employee, made threats against an
individual who testified. Both Filburn and Gregston
denied the making of such statements. In one case
Respondent's witness testified to an innocuous remark
made by Filburn which the witness testified he considered
to be "more or less a threat." This witness admitted
that in the election booth he voted "his convictions"
and not his fears (regardless of whether his vote was
for or against the Union). In fact only one of Respond-
ent's witnesses testified that he had voted his "fears."
Even assuming the truth of the Respondent's testimo-
ny, which I do not, independent incidents such as those
described by Respondent's witnesses are not to be con-
doned but are in the instant case so isolated, so generally
innocuous, as well as, unhappily, so normal hnd natural
during the heat of an election that they must be far
more important and threatening than anything described
herein to upset an election, even a close one. This
is particularly so when the incidents which were really
disruptive of the laboratory conditions were, as here,
in fact inspired, promulgated, and 'circulated by the
party filing the objections.
The law applicable to the situation here was succinctly
set forth by the Board in Camp Milling Company, Inc.,,
109 NLRB 471, where the Board said:
1e Objection XIV describes a statement allegedly made by Gregston
to employee Harry Wright, not to be confused with Supervisor Edward
Michael Wright But Harry Wright did not appear as a witness Much
the same thing is involved in Objection I where allegedly employee
Wright "overheard" a remark in a conversation between Filburn and
Gregston However in Objection I' Supervisor Wright and Barham sup-
plied the missing testimony from employee Harry Wright I have found
neither witness worthy of credit and therefore accept the denials of
this testimony made by Gregston and Filburn
169
The Peerless Plywood case must be read in the
broader context of Board law and practice. The
Board does not permit a party to an election to
urge its own misconduct as a ground for setting
aside an 'election. [Footnote omitted.] The reason
is plain. Unless such a rule is operative one' or
.the other party can always 'prevent a definitive
selection of a bargaining representative by engaging
in conduct which would ordinarily justify setting
aside an election. For example, by delivering a
speech on company time and property within 24
hours of an election, an employer could always
be sure of stymying [sic] the Board's electoral
process. If the employees voted for the union,
the employer could point to the speech as preventing
a free choice by the employees; if the union lost
the election, the union could make the same objec-
tion. The Board's election proceedings would thus
be turned into a meaningless merry-go-round. As
a practical matter, in order to protect the integrity
of its own processes and to prevent a party from
profiting by its own wrongdoing, the Board cannot
.entertain an objection to an election based upon
the objector's own misconduct. This rule governs
the present case.. The Employer is estopped from
objecting to the election upon the basis either of
its own speech or that of the Petitioner [given
11rs hour prior to the opening of the election with
the employer's consent]. In both cases it was at
fault. In the case of its own speech, it was entirely
in the wrong. In the case of the Petitioner's [Union]
speech it was as much at fault as the Petitioner,
for the latter could not have made the speech
without the expressed permission of the Employer.
So here Respondent is estopped by its own conduct.
,Accordingly I recommend that the Respondent's
objections to the election be overruled in toto and that,
upon the basis of the election held on December 6,
1968, the Union be certified as the exclusive representa-
tive of all the employees in the appropriate unit.
C. Refusal to Bargain,
Facts and Conclusions
As heretofore found, on some unspecified date before
December 6, 1968, the Union offered Plant Manager
Epley 30-odd authorization cards executed by the
employees in the agreed-upon production and mainte-
nance appropriate unit then consisting of a total of
49 employees with the request for recognition and bar-
gaining. At that time Epley refused to even touch the
authorization cards and kept reiterating by rote the
phrase, "I have a good-faith doubt" until the Union
picked up its signed cards and left the office with its
request otherwise unanswered.
Then on December 6 the employees voted, despite
Respondent's efforts to the contrary by Epley and Bar-
ham, 26 to 23 in favor of union representation.
Simultaneously on December 6, Respondent unilateral-
ly, without notice to or consultation with the Union,
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted wage increases to 25 employees in the unit
without notice thereof to the employees themselves 20
One week later, December 12, the wage increases
thus granted were reflected in the paychecks and simulta
neously Respondent filed the aforementioned nonmerito-
rious objections based, as found heretofore on its own
wrongdoing
The use of undercover agents, labor spies, and/or
agents provocateur by an employer for antiunion purpos
es has always and without exception been found to
be one of the more vicious types of interference,
restraint, and coercion and in violation of Section 8(a)(1)
of the Act
So at the time of the presentation of the cards and
again on December 6 after the election Respondent
knew, or deliberately refused proof thereof, that the
Union represented a majority of its employees At this
time the law required Respondent to recognize and
bargain with this Union as the exclusive representative
of the Respondent's employees in the appropriate unit
Instead of so doing, however, on the first occasion
Respondent disdained the opportunity presented it to
examine the evidence of majority and on the second
it chose to file its objections in question here In addition
the Respondent at all times used the time delay so
provided to attempt to dissipate the Union's majority
status as proved by the very objections filed by it
On its face these objections appear bona fide The
good faith in the filing of these objections, however,
completely disappeared with the unmasking of Ray Bar-
ham as Respondent's undercover agent , labor spy, and
agent provocateur which the evidence proved him to
be No doubt Respondent was surprised by this disclo
sure that Respondent itself was responsible for the condi-
tions said to be existing in the plant at the time of
the election which would have, under ordinary condi-
tions, provided an ostensibly legitimate basis for said
objections However that may be, this disclosure effec
tively eliminated any claim of "good faith" by Respond-
ent on either of the occasions noted above Thus
Respondent used both Barham and its objections as
means to evade its duty to bargain with the majority
representative of its employees
If Respondent here had seen fit to limit itself to
the "good faith doubt" position as originally expressed
without more, no doubt Respondent would have been
entitled to have that alleged doubt resolved through
a secret Board-conducted election even though in this
record there was little, if any, factual foundation for
such expressed doubt
That, however, is not the case here Here Respondent
chose to utilize the time secured by the use of that
rote answer to attempt through the use of an undercover
agent to dissipate the Union's claimed majority by keep-
ing union activities under surveillance, by having such
activities reported to it, by permitting and collaborating
'" It io interesting to note that 9 out of the I1 employees identified
in Respondents objections as involved on the Respondents side were
included imong the 25 employees whose wages were increased Why
the two were omitted therefrom remained unexplained
with such agent in starting and circulating false and
unfounded rumors of anticipated union violence thereby,
in Respondent's own words, creating conditions so that
"the election was held in an atmosphere of fear of
reprisals which was not conducive to the sort of free
and untrammeled choice of representatives which the
National Labor Relations Act contemplates " Such were
not little, unimportant, innocuous unfair labor practices
These qualify as "massive" unfair labor practices which
according to Respondent's appraisal, made prior to the
unmasking of Barham, made the holding of a fair election
impossible If so Respondent has only itself to blame
Here the employees indicated their desire for union
representation in an election despite the strenuous efforts
made by Respondent and its agent Barham to prevent
such a result Except for procedural considerations those
strenuous efforts, as explained heretofore, would have
been found to constitute serious unfair labor practices
in violation of Section 8(a)(1) of the Act
The law in this situation was made clear in N L R B
v Gissell Packing Co , 395 U S 575, where the Supreme
Court held
C Remaining before us is the propriety of a
bargaining order as a remedy for a Section 8(a)(5)
refusal to bargain where an employer has committed
independent unfair labor practices which have made
the holding of a fair election unlikely or which
have in fact undermined a union's majority and
caused an election to be set aside We have long
held that the Board is not limited to a cease
and-desist order in such cases, but has the authority
to issue a bargaining order without first requiring
the union to show that it has been able to maintain
its majority status See N L R B v Katz, 369
U S 736, 748, fn 16 (1962), N L R B v P Loril-
lard Co , 314 U S 512 (1942) And we have held
that the Board has the same authority even where
it is clear that the union, which once had possession
of cards from a majority of the employees, repre-
sents only a minority when the bargaining order
is entered Franks Bros Co v N L R B , 321
U S 702 (1943) We see no reason now to withdraw
this authority from the Board If the Board could
enter only a cease-and-desist order and direct an
election or a rerun, it would in effect be rewarding
the employer and allowing him "to profit from
[his] own wrongful refusal to bargain," Franks
Bros , supra at 704, while at the same time severely
curtailing the employees' right freely to determine
whether they desire a representative The employer
could continue to delay or disrupt the election
processes and put off indefinitely his obligation
to bargain, and any election held under these cir-
cumstances would not be likely to demonstrate
the employees' true, undistorted desires [Footnote
omitted ]21
By thus itself engaging in massive unfair labor prac-
tices designed to dissipate the Union's majority and
to create conditions such as described in Respondent's
21 See N L R B v Amencan Cable Systems Iric 414 F 2d 661
(C A 5)
REED SEISMIC COMPANY
objections which , in Respondent ' s opinion , made the
holding of a fair election impossible , I find that, under
the conditions here existing , Respondent is not only
bound by the results of the election actually held but
also thereby refused on December 6, 1968 , to bargain
with the Union as the exclusive bargaining representative
of Respondent ' s employees in the agreed-upon
appropriate unit in violation of Section 8(a)(5) and (1)
of the Act.
In addition by granting 25 employees wage increases
on December 6, 1968 , without notice to or consultation
with the exclusive bargaining representative of those
employees , Respondent has also refused to bargain in
violation of Section 8(a)(5) of the Act. See N. L.R.B.
v. Exchange Parts Co., 375 U. S. 405.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close , intimate,
and substantial relationship to trade , traffic , and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Local 826, International Union of Operating Engi-
neers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2. All production and maintenance employees
employed at Respondent's plant in . San Angelo, Texas,
excluding office clericals , salesmen, guards , watchmen,
and supervisors ' as defined by the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. On December 6, 1968 , and at all times thereafter,
Local 826 , International Union of Operating Engineers,
171
AFL-CIO, has been and now is the representative for
the purposes of collective bargaining of a majority of
Respondent's employees in the above-described unit
and, by virtue of Section 9(a) of the Act, has been
and is now the exclusive representative of all the employ-
ees in such appropriate unit for the purposes of collective
bargaining with Respondent Employer in respect to rates
of pay, wages, hours of employment, and other condi-
tions of employment.
4. By refusing on December 6, 1968, and at all times
thereafter, to recognize and bargain with said Union
as such exclusive representative of its employees,
Respondent has refused to bargain with said exclusive
representative as such representative in violation of
Section 8(a)(5) and (1) of the Act.
5. By granting wage increases to 25 employees in
the appropriate unit above found on December 6, 1968,
without notice to or consultation with the aforementioned
Union as the exclusive bargaining representative of the
employees in that said appropriate unit, Respondent
has refused to bargain with said Union in violation
of Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in certain unfair labor practices , I will recom-
mend that it cease and desist therefrom and that it
take certain affirmative action which will effectuate the
policies of the Act.
Having found that Respondent has failed and refused
to bargain with Local 826, International Union of Operat-
ing Engineers , AFL-CIO, as the exclusive bargaining
representative of Respondent's employees in the afore-
mentioned appropriate unit consisting of the production
and maintenance employees of Respondent , I will recom-
mend that Respondent , upon request , recognize and
bargain in good faith with said Union as such exclusive
representative.
[Recommended Order omitted from publication.]