Claxton Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 417 (N.L.R.B. 1981)

CLAXTON MANUFACTURING CO., INC.
Claxton Manufacturing Co., Inc. and Laborers' In-
ternational Union of North America, Local 896,
AFL-CIO. Case 10-CA-13442
September 30, 1981
SUPPLEMENTAL DECISION, ORDER,
AND DIRECTION OF SECOND
ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 26, 1981, Administrative Law Judge J.
Pargen Robertson issued the attached Supplemental
Decision in this proceeding.' Thereafter, the Gen-
eral Counsel filed exceptions and a supporting
brief, and Respondent filed cross-exceptions and a
supporting brief and an answering brief to the Gen-
eral Counsel's exceptions. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
The Administrative Law Judge found, and we
agree, that the Union's promises to employees
during the election campaign to waive union initi-
ation fees were proscribed under the Supreme
Court's decision in N.L.R.B. v. Savair Manufactur-
ing Company, 414 U.S. 270 (1973). However, in
adopting this finding of the Administrative Law
Judge, we rely solely on the remarks made by
Union International Representative Alfred Hazel to
employees at union meetings.
The record discloses that at several union meet-
ings with employees Hazel stated that employees
who signed union authorization cards before the
election would not pay any initiation fees but that
the employees could determine whether to impose
initiation fees on those employees who signed au-
thorization cards after the election. We find that
these statements constitute objectionable election
interference.
Under the Supreme Court's decision in N.L.R.B.
v. Savair Manufacturing Company, supra, a waiver
of union initiation fees for only those employees
signing authorization cards before the election im-
pairs a free choice in the election. Union cards so
The Board's original Decision and Order is reported at 237 NLRB
1393 (1978).
: Respondent's motion to strike the General Counsel's exceptions is
hereby denied as lacking in merit.
258 NLRB No. 56
obtained would constitute "endorsement," serve to
"paint a false portrait of employee support," and
perhaps create a feeling of obligation to vote for
the Union in the election. Id. at 277-278. The
Court in Savair made it clear that only an across-
the-board offer to waive fees for all employees,
whether they sign up before or after the election, is
a permissible campaign tactic.
Here, Hazel's suggestion that initiation fees
might be imposed after the election linked waiver
of initiation fees to support for the Union before
the election, thereby constituting an impermissible
inducement to employees to sign authorization
cards before the election. See Deming Division,
Crane Co., 225 NLRB 657 (1976). Moreover, we
agree with the Administrative Law Judge that
under the circumstances presented here Hazel's
June 20, 1977, letter to employees did not redress
Hazel's oral statements to employees. Accordingly,
the results of the first election are set aside and we
shall direct a second election.3
ORDER
It is hereby ordered that the Board's Decision
and Order (237 NLRB 1393) dated August 29,
1978, be, and it hereby is, vacated and the com-
plaint be, and it hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the certification
issued in Case 10-RC-11076 on November 11,
1977, be, and it hereby is, rescinded, and that Case
10-RC-11076 be, and it hereby is, remanded to the
Regional Director for Region 10 to conduct the
second election directed below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
3 In view of our finding that the first election must be set aside because
of the Union's improper waiver of initiation fees, we find it unnecessary
to reach, and expressly disavow, the additional bases for setting aside the
election found by the Administrative Law Judge.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This matter was heard before me in Claxton, Georgia, on
March 24-26, 1981. The charge was filed on February
14, 1978. On March 31, 1978, a complaint issued alleging
that Respondent violated the Act by refusing to bargain
and failing to furnish information to the Union following
the Union's certification as collective-bargaining repre-
sentative of Respondent's employees in the unit found
appropriate.' The certification issued on November 11,
The appropriate unit was found to include:
All production and maintenance employees employed by Respond-
ent at its Claxton, Georgia plant, including plant clerical employees,
but excluding all office clerical employees, professional employees,
guards and supervisors as defined in the Act
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1977, following a July 1, 1977, election held pursuant to
a Stipulation for Certification Upon Consent Election.
In its answer to the complaint Respondent admitted
the refusal to bargain and refusal to supply information
allegations of the complaint. However, Respondent
denied that a majority of its bargaining unit employees
had selected the Union as their bargaining representative.
Respondent's denial was grounded in its timely filed ob-
jections. It alleged that it was improperly denied a hear-
ing on those objections, that it was improperly denied a
ruling on each of its objections, and that the Union was
not designated as majority representative in a free elec-
tion. On August 29, 1980, the Board rejected Respond-
ent's defenses and granted the General Counsel's Motion
for Summary Judgment (237 NLRB 1393).
On March 21, 1980, the United States Court of Ap-
peals for the Fifth Circuit denied enforcement of the
Board's Order (N.L.R.B. v. Claxton Manufacturing Com-
pany, Inc., 618 F.2d 396). The circuit court found that
the Board erred in not granting Respondent a hearing on
its objections in view of its determination that Respond-
ent had established a prima facie case in support of some
of those objections. The court found that evidence in
support of the objections showed that an atmosphere of
fear and coercion may have existed during the election
campaign, and that the rule of N.L.R.B. v. Savair Manu-
facturing Company, 414 U.S. 270 (1973), may have been
violated.
Pursuant to the Board's request for remand, the court
of appeals on May 14, 1980, remanded this case to the
Board for an evidentiary hearing. The Board directed
that hearing by order dated July 14, 1980. Subsequently,
a notice of hearing issued from Region 10 on July 29,
1980.
During the hearing herein, the parties presented evi-
dence relevant to the matters raised by the court of ap-
peals. Upon the entire record and from my observation
of the witnesses, and after due consideration of the briefs
filed by Respondent and the Charging Party, I hereby
make the following findings:
FINDINGS OF FACT
I. BACKGROUND
The Union filed a petition in Case 10-RC-11076 on
April 25, 1977. The parties agreed to a Stipulation for
Certification Upon Consent Election, which was ap-
proved May 31, 1977. The July 1, 1977, election includ-
ed approximately 550 eligible voters, 277 votes were cast
for and 168 were cast against the Union. There was I
void ballot and 12 challenged ballots. On July 28, 1977,
Respondent filed timely objections to the election.
In considering the evidence presented herein, I have
categorized Respondent's objections in the manner of the
court of appeals.
A. Atmosphere of Fear and Coercion
Some of the facts underlying this issue, when isolated,
appear innocuous. However, none were totally chimeri-
cal and, when taken as a whole, the evidence showing
the existence of an atmosphere of fear and coercion is
substantial. In order to fully consider this issue, I must
try to reconstruct all the incidents which were supported
by record evidence.
1. The tape recording incident
All employees were invited to an antiunion meeting at
the Veterans Center in Claxton on May 29, 1977. Em-
ployee Gail Barrow told Union International Representa-
tive Alfred Hazel of the meeting. Barrow told Hazel that
the Claxton mayor was to speak. Hazel testified that he
told Barrow that he was unable to attend, but that he
would like to know what the mayor said, that "I'd like
to have him taped." Barrow told Hazel that she would
tape the mayor's speech. Hazel provided Barrow with a
tape recorder.
Barrow testified that she took the tape recorder into
the meeting under her arm in full view. She recorded the
mayor's speech along with portions of addresses from
employees Diane Sapp and Benny Evans.
Former Supervisor Arretha DeLoach testified that
Sapp and Evans were unaware they were being record-
ed. Other witnesses testified that they attended the an-
tiunion meeting, and they were unaware that anyone was
taping that meeting. Nora Lynn testified that she spoke
out against the Union during the antiunion meeting.
Lynn's comments were included on the tape recording.
After the union meeting, employees told her "what a
good talker [she] was."
On the evening following the antiunion meeting, the
Union held a meeting for Respondent's employees. At
that union meeting, all or a portion of the recording of
the antiunion meeting was played.
Alfred Hazel testified that he played the tape record-
ing during the union meeting on request from employees.
One employee told Hazel that he had heard that the an-
tiunion meeting was taped. An employee told Hazel that
he would like to hear the tape. Other employees joined
in the request.
Hazel testified that he was interested in what the
mayor said to the meeting of employees because employ-
ees had told him that the mayor and the local newspaper
had already threatened employees that the plant would
close if the Union came in.
2. Evidence and rumors of violence
The record demonstrates several instances of damage
to employees' property during the union campaign. None
of those incidents were shown to be caused by the
Union.
a. Benny Evans
The parties stipulated that the home (house trailer) of
Benny Evans was broken into and ransacked on June 1,
1977. As shown above, Evans was one of the employees
who spoke at the May 29 antiunion meeting. The em-
ployees learned of the incident regarding Evans' trailer
through rumors.
418
CLAXTON MANUFACTURING CO., INC.
b. Norma Jean Cowart
Employee Norma Jean Cowart testified that two tires
were cut on her car while it was parked in Respondent's
parking lot around the first week of May 1977. Cowart
testified that she never discovered who cut her tires.
Cowart was an antiunion employee. She spoke out
against the Union and she wore an antiunion button. She
testified that former prounion employee Raymond Ken-
nedy was handbilling near the parking lot around the
time her tires were cut.
Other employees learned of Cowart's tires being cut
through rumors in the plant.
c. Charlotte Graham
Employee Charlotte Graham testified that she opposed
the Union during the 1977 campaign and that she spoke
out against the Union during a company meeting. On a
Saturday, May 14, 1977, following that company meeting
which was held on Thursday, Graham received a phone
call from a woman who identified herself as Sandra
McGallon, a representative of the Union. Graham testi-
fied that the woman told her that she would be taken to
court for getting people's cards back. The woman said
that she was from Washington. Later that same day,
Graham received another phone call from a woman with
a "different voice" who told her "if you don't quit run-
ning your mouth about the Union, I'm going to."
Graham said at that point she hung up because she did
not want to hear anymore.
Graham testified that while she was at work in the
plant the woman who sat next to her told her that some-
one in the bathroom had said that they were going to
"beat my tail." Graham did not identify the person who
allegedly made the threat. Additionally, she was unable
to recall whether she was told of the threat before or
after the election.
Unrebutted testimony showed that the Union has
never employed a representative named Sandra McGal-
Ion.
d. Barbara Nell Hodges
Employee Barbara Nell Hodges testified that a tire
was cut on her car before the election. Hodges could not
recall when before the election the incident occurred.
Hodges asked to withdraw her union authorization card.
However, she could not recall whether her tire was cut
before or after she asked for the card to be returned. She
did not discover who cut her tire. Hodges did not report
the cut tire to law enforcement authorities.
The parties stipulated that this incident, as well as the
incident regarding Norma Jean Cowart, was the subject
of discussion among employees prior to the election.
e. Judy Fay Cribbs
The parties stipulated that around the first and middle
of May 1977 the front passenger side windshield of the
automobile of Judy Fay Cribbs was broken under cir-
cumstances demonstrating that the windshield was
broken intentionally, but that Cribbs did not know who
had broken her windshield. The parties further stipulated
that that incident was the subject of discussion among
employees prior to the election.
f. Other runors
The Charging Party offered evidence which demon-
strated that other rumors in the plant included rumors
that the plant would close if the Union came in; that em-
ployees who signed union cards would be fired; that
Benny Evans' property was repossessed rather than bur-
glarized; that Benny Evans knew beforehand that his
property was going to be removed from his trailer; and
that some of the rumors regarding tires being slashed re-
sulted from the involved family's domestic problems.
g. Bomb threats
The parties stipulated that two bomb threats were re-
ceived at Respondent's facility. The first occurred before
the election on June 14, 1977; the second occurred after
the election. Respondent's switchboard operator testified
that an anonymous caller on June 14 told her, "I have
just learned that a bomb has been planted in one of your
plants and was to go off this afternoon." She relayed the
message to an official of Respondent who subsequently
directed the employees to evacuate the plant. Respond-
ent's officials contacted local law enforcement authorities
to search the plant. No bomb was found. There was no
evidence connecting the Union to either of the bomb
threats.
h. Rumors of picket line violence
Geraldine Hopkins and Alberta Barrow, currently su-
pervisors of Respondent, each testified that she was an
eligible voter in the 1977 election. Barrow testified that
she overheard employees say they would do what was
necessary to keep people from crossing their picket line
if there were a strike. Hopkins testified that questions
were asked at union meetings about what employees
would have to do on picket lines. Hopkins said some in
the audience talked about clubs or something like that.
Another current supervisor, Lynn Sapp, was an em-
ployee during the election campaign. Sapp testified that
she heard employees in the bathroom say, "If they cross
my picket line, I will have a baseball bat, and I will beat
them in the head; nobody is crossing my picket line."
Supervisor Martha Nichols was a machine operator
during the union campaign. Nichols testified that she
heard talk in the plant regarding picket lines before the
election. Nichols testified that she heard that they were
going to set up picket lines, and the ones that did not
belong to the Union would not be permitted to come to
work.
Former employee Linda Jones testified that she heard
gossip in the plant that it was possible to get hurt by
crossing a picket line.
Annie Sanders testified that she was an examiner at
Respondent's facility during the union campaign. Sanders
testified that she asked employee Jimmy Roberts "what
was a picket line." Sanders testified that Roberts2 told
Rolhcrls wa a member of the Uniono's organlillg commillee
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her "it was a bunch of people gathered around the place
and that they could have guns and knives."
Employee Beretha Cooper testified that she overheard
employees say that they would not work when they set
up the picket line and that the people on the picket line
are not supposed to have other workers coming in over
them.
i. Threat to cut an employee's hair
Employee Kay Clark testified that while she was lis-
tening to a talk by Haber at Respondent's facility around
June 1977, she was threatened by employee Norma Jean
Miller. Clark testified that she was wearing a "vote no"
button in her hair and Miller, who had a pair of scissors,
told Clark that, if she did not get the button out of her
hair, she was going to cut her hair off. Later, as Clark
was clocking in, Miller said that she was going to get
Clark's hair one way or another. Miller was prounion;
she wore a union button. Clark testified that the inci-
dents frightened her, that she started crying and shaking.
Clark reported the incidents to supervision. Clark's testi-
mony was corroborated by employee June Todd,3 who
testified that she was sitting with Clark and witnessed
Miller threaten Clark with scissors. On redirect examina-
tion, Todd recalled that Norma Jean Miller also threat-
ened to beat the "living s- out" of her. Miller allegedly
made that threat during the speech when she threatened
to cut Clark's hair. Norma Jean Miller did not testify.
3. Rumors of employees' names being read at union
meetings
Several employees testified that they overheard that
names of employees were read off in union meetings.
Some of the rumors connected that incident to an effort
by a number of employees to withdraw their union au-
thorization cards. Those employees signed a statement
requesting that the cards be returned. The Union re-
ceived those requests shortly after April 25, 1977. It was
rumored that the Union, during meetings with employ-
ees, read the names of those employees who had request-
ed withdrawal of their authorization cards. 4
Other rumors connected the reading of names with an
effort to identify antiunion employees. Pearl Barnard was
told by Linda Sapp that her name was read off in a
union meeting and Sapp spoke out that Barnard was not
for the Union.
The Union's International representative, Alfred
Hazel, testified that at union meetings employees' names
were read from the "Excelsior list" of bargaining unit
employees furnished the Union by Respondent. Hazel
testified the list was read to ascertain if there were super-
visors on the list and to ascertain if the names on the list
were in fact current employees of Respondent. Hazel tes-
tified that the Union used the Excelsior list to mail letters
to all the employees and a number of those letters were
returned marked undeliverable. At a subsequent union
I There was a conflict between Todd's hearing testimony and her pre-
trial affidavit. Nevertheless, I have credited Clark's version of these
events. She appeared credible and no conflicting testimony was offered.
' There was no probative evidence that the Union actually read the
names of employees seeking return of their authorization card.
meeting, Hazel read those names in an effort to ascertain
the correct addresses of those particular employees.
Hazel also admitted asking if certain employees were still
wearing union buttons. Hazel testified that he asked
about those employees because they had told him that
their jobs had been threatened.
Hazel testified that he checked off names on the Excel-
sior list of employees who had signed union authorization
cards. However, Hazel checked off those names in his
office. He denied doing that in a union meeting.
a. Cora Lee Mikel
Employee Cora Lee Mikel testified about three inci-
dents involving her and prounion employee Dot Wil-
liams. Mikel testified that she wore a "vote no" button
and she was selected as company observer in the elec-
tion.
Mikel testified that two boys were in the process of
cleaning up the factory with a vacuum cleaner. They
were cleaning the rafters. Mikel testified she had covered
her head but that Dot Williams, seeing that Mikel had
covered her head, motioned to the boys to turn the
vacuum cleaner where it would blow trash toward
Mikel. Mikel testified that the boys did blow trash all
over her.
On another occasion, Mikel testified that she was
going to work one morning when she passed the ballfield
near the plant. There were several people there including
Union Representative Alfred Hazel, Raymond Kennedy,
and Dot Williams. As Mikel passed the ballfield she
stopped at a stop sign. While there Dot Williams pointed
in her direction and told Alfred Hazel. "There she is."
Mikel then asked Hazel if he wanted her, but no one an-
swered.
On another occasion Mikel was returning to the plant
from lunch when Dot Williams, her aunt, and sister went
into the plant ahead of her. Mikel testified that they saw
her coming and closed the door in her face. This necessi-
tated Mikel going around to the back to the office door
since the door Williams closed automatically locked.
This incident caused Mikel to be late in returning from
lunch. Mikel complained to supervision, who confronted
Dot Williams with the incident. Mikel testified that Wil-
liams told the supervisor that she did not know she had
closed the door in Mikel's face.
Mikel testified that when Williams pointed her out to
the union representative it made her angry and fearful.
b. Raymond Kennedy
Evidence indicated that Alfred Hazel and former em-
ployee Raymond Kennedy 5 were handbilling union leaf-
lets near the plant during the election campaign. In the
presence of several employees, Attorney James Wimber-
ly, Jr., approached Kennedy and directed him to move
off Respondent's property. 6 Kennedy responded, "Well,
5 Kennedy was the subject of a prior unfair labor practice dispute in
the case cited at 235 NLRB 261 (1978), wherein Kennedy was found to
have been discharged in violation of Sec. 8(a)(l) and (3) of the Act.
I Kennedy testified that he was not on Respondent's property when
confronted by Wimberly.
420
CLAXTON MANUFACTURING CO., INC.
goddamn it, if ya'll are going to play dirty, I'll play dirty
too."
c. Fear among the employees
Respondent offered testimony that employees were
afraid as a result of the rumors in the plant. However,
other witnesses, including some called by Respondent,
testified that they were not afraid and that they did not
notice any indication of fear among other employees. All
witnesses who were asked testified that the rumors did
not affect their votes.
B. The Discussions Regarding Initiation Fees
The court of appeals found that affidavits submitted in
support of Respondent's objections warrant a hearing on
possible violation of the rule of N.L.R.B. v. Savair Manu-
facturing Company, 414 U.S. 270 (1973). The evidence re-
garding the Savair issue-i.e., waiving the Union's initi-
ation fee-reflected statements which were made by a
number of individuals bearing on the issue. The evidence
demonstrated that comments about initiation fees were
made by a union representative, by employees closely
connected with the Union, and by other employees or
unidentified persons.
As to the comments by employees or unidentified per-
sons, extensive testimony was offered and the parties
stipulated that there were rumors at Respondent's plant
that "if the employees joined the Union prior to the elec-
tion, they would not be required to pay an initiation fee.
But if they waited until after the election," an initiation
fee would be required.
Apparently, those rumors originated in union meet-
ings. Alfred Hazel, the union organizer most involved in
the campaign, discussed initiation fees in meetings. There
were conflicts in testimony regarding Hazel's comments.
Additionally, statements regarding initiation fees were
made to employees by Raymond Kennedy and other
members of the Union's organizing committee. As to
Kennedy, the court of appeals found there was an ade-
quate showing that Kennedy was an agent of the Union.7
As to the organizing committee, a number of the mem-
bers were named in an April 18, 1977, letter from the
Union to Respondent. Undisputed evidence showed that
others, including Alberta Barrow and Geraldine Hop-
kins, were also members of the organizing committee.8
'The evidence demonstrated that Kennedy was the employee who
originally contacted the Union. Union International Representative
Alfred Hazel testified that Kennedy was the spokesman for the employ-
ees who appeared at the first union meeting. The union representative in-
structed employees that Kennedy was the person to contact in order to
reach the Union. Kennedy was frequently seen in the presence of Hazel.
He frequently handbilled near Respondent's plant. Kennedy suggested
that the Union rent a specific building for meetings; and the Union did
rent the building. Kennedy reported to Hazel and he communicated to
employees direction from Hazel, and he was directly and indirectly in-
volved in soliciting employees to sign union authorization cards. Kenne-
dy testified that he turned several hundred signed authorization cards
into the Union. Kennedy was discharged by Respondent shortly after the
union campaign began and his discharge was the subject of unfair labor
proceedings against Respondent.
' Alfred Hazel testified that he had about 500 blank union authorization
cards which he gave to Respondent's employees at the first union meet-
ing and asked them to sign cards and solicit other employees to sign
cards. Employees at that first meeting were the first employees appointed
The evidence regarding comments about initiation fees
included the following:
1. Alfred Hazel
Testimony was not disputed that the subject of initi-
ation fees came up during several union meetings. Sever-
al employee and former employee witnesses, including
witnesses called by both Respondent and the Charging
Party, testified that Hazel told them the International
union did not charge initiation fees and that it would be
up to the union members to decide if they wanted to
charge any initiation fee.
Respondent's witnesses Alberta Barrow, Geraldine
Hopkins, Linda Jones, Jeanette Sapp, and Aqualla
Mincey, all employees during the union campaign, testi-
fied to the effect that Hazel told the employees that they
would not have to pay an initiation fee if they joined
now; but that, if an employee joined later, it would be
left up to the people to decide how much would be
charged. Both Barrow and Hopkins recall that Hazel in-
dicated that employees who joined before the election
would not be charged an initiation fee. However, as to
employees who joined after the election, it would be left
to the people to decide whether such fees would be
levied. Jones and Sapp both testified that Hazel indicated
that it would be left up to the people to decide how
much initiation fee would be charged to those employees
who joined later.
Aqualla Mincey testified that she was not sure wheth-
er Hazel meant people would vote on the amount of the
initiation fees after the election or after a contract was
signed.
Among witnesses for the Charging Party, Gail Barrow
and Ethel Jones both testified that Hazel told the em-
ployees that there would be no initiation fee unless they
agreed to it. Barrow, in an affidavit to the Board dated
July 18, 1977, testified, "Hazel did say during our meet-
ing something to the effect that those who are not for
the Union now, if they became members after the elec-
tion, if we wanted to charge initiation fees and charge
them, we could. The decision was the employees." She
also stated in that affidavit that Hazel said, "we didn't
have to have initiation fees if we didn't want to and he
said something about the highest one being $250."
Barrow was a member of the union organizing commit-
tee.
Employee Myrtice Tanner, called by the Charging
Party, testified that Hazel told the employees that there
was no initiation fee and that "after the contract was
to the union organizing committee. Hazel testified that he instructed
those employees that he would have to have signed authorization cards
in order to go to the Labor Board and ask for an election. He instructed
that the cards were also applications for membership and that the cards
could be turned in to the Employer after a contract had been ratified for
the deduction of union dues. Hazel testified that he instructed the em-
ployees not to solicit cards on company property and that they were not
to make any promises to employees in order to get them to sign a card
He instructed the employees not to threaten or intimidate anyone By
letter dated April 18, 1977, Hazel informed Respondent of the names of
the original members of the organizing committee and requested that Re-
spondent not discriminate against the named individuals because of their
union activities
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ratified and it goes into effect, if there was ever an initi-
ation fee that it would be voted on by the Union."
Raymond Kennedy was asked on several occasions
during his testimony about Hazel's comments about initi-
ation fees. At times, Kennedy testified that Hazel told
the employees that they would decide whether to impose
an initiation fee. At other times, Kennedy testified that
Hazel said the employees would decide about initiation
fees after a contract was signed.
Kennedy's affidavit to the Board contained the follow-
ing statement:
Some of the employees asked what the initiation fee
was going to cost them. Hazel said the International
didn't charge one. The Local didn't either. If there
was an initiation fee charged, the people that
worked at Claxton would have to decide it for
themselves and vote on it. He wasn't going to tell
them to do this.
Alfred Hazel testified that he told the employees at the
first union meeting on April 16, "There would be no ini-
tiation fee and no dues until after the contract was signed
and had been ratified by a majority of the employees."
Hazel testified that employees would ask and even state
that their supervisors had told them that they would
have to pay and "I told them it was a policy of the In-
ternational Union, the OLU, and of the local union that
no employee other than construction would be asked to
pay an initiation fee." Hazel testified that the initiation
fee for construction workers is $225.
Discussion
I was impressed with the testimony of Gail Barrow,
Aqualla Mincey, Alberta Barrow, Geraldine Hopkins,
Linda Jones, Jeanette Sapp, and Ethel Jones. I am unable
to determine that conflicts in the testimony, including
even conflicts within the testimony of the same witness,
necessarily demonstrate fabrication in view of the evi-
dence showing that Hazel discussed initiation fees on
several different occasions.
In view of the testimony of Alberta Barrow, Geraldine
Hopkins, and Gail Barrow,9 I am convinced that Hazel
did indicate on occasion that employees who had signed
cards before the election would pay no initiation fee, but
that the employees could vote to determine whether em-
ployees who signed afterwards would be charged a fee.
The evidence does indicate that on other occasions
Hazel stated that employees who signed now would not
pay whereas those who signed later could be charged if
the employees desired. Some testimony showed that on
other occasions Hazel indicated that that determination
would await the signing of the contract.
Additionally, Hazel's June 20, 1977, letter to all em-
ployees included, inter alia, the following comment:
(1) As of this day, the Union guarantees there will
be no initiation fees for the employees of Claxton
Manufacturing Co., Inc.
' Including Gail Barrow's affidavit testimony. See Fed. R. Evid. Rule
803(5).
However, the evidence is convincing that the Union
never clarified the question of initiation fees. In fact, the
evidence clearly showed that rumors continued through-
out the campaign that only those employees who signed
a union authorization card before the election could
escape the possibility of paying an initiation fee.
Hazel's June 20 letter did nothing to clear up the con-
fusion. In fact, the wording "as of this day" may have
contributed to the impression that initiation fees could be
charged after the election. See Inland Shoe Manufactur-
ing Co., 211 NLRB 724 (1974).
2. Raymond Kennedy and the initiation fee
Lynn Sapp testified that she signed a union authoriza-
tion card at the home of Raymond Kennedy. Sapp's tes-
timony regarding Kennedy's comments to her on that
occasion appears as follows:
At any time during the-this gathering, was the
subject of initiation fees mentioned?
A. Yes, sir.
Q. Tell us about that.
A. Well, when I was signing my card, and after I
signed it, it was stated that well by signing now I
won't have to pay no big membership dues when
the Union comes in.
Kennedy testified that he told Sapp "according to Mr.
Hazel, there would not be no initiation fee .... " How-
ever, Kennedy did not specifically deny the above-cited
testimony of Sapp. I credit Sapp's testimony in that
regard.
3. Members of the organizing committee
Testimony was unrebutted that several members of the
Union's organizing committee, including Alberta
Barrow, Geraldine Hopkins, Emogene Theatt, Gail
Barrow, Lucy Neasmith, and Beverly Windburn, told
other employees that by signing union authorization
cards before the election, they would not have to pay an
initiation fee; but if the Union came in, an initiation fee
may be imposed.
II. CONCLUSIONS
A. An Atmosphere of Fear and Coercion
Obviously, some of the above-cited evidence under
this topic is worthy of little or no weight. Most, if not
all, contested campaigns include rumors which may
cause concern among employees. All those matters
should be considered. However, it is important to also
consider that many of those occurrences could never be
prevented, and it would be impossible for either the Em-
ployer or the Union to take any action which would
' Statements by members of the committee affected the employees' un-
derstanding of the initiation fee question. Moreover, I must consider the
statements by members of the committee in determining "the objective
interpretation by the employees of the message actually communicated to
them by the Union." (See discussion under Conclusions: sec B, infra.)
Statements by members of the commitee tend to show the members' un-
derstanding of what they were told by the Union.
422
CLAXTON MANUFACTURING CO., INC.
remedy the effects of some rumors. Additionally, an evi-
dentiary problem is often created where the evidence
fails to identify responsible persons. Several instances
cited above fall into this category. Charlotte Graham tes-
tified that a woman claiming to be Sandra McGallon
called and threatened to take her to court. Graham re-
ceived a subsequent call from an unidentified person.
(See supra.) The Union did not employ anyone named
Sandra McGallon and no evidence was offered to show
the existence of anyone with that name.
On the other hand, evidence clearly showed certain
serious incidents which were the responsibility of the
Union or union supporters.
Alfred Hazel admitted that he asked employee Gail
Barrow to record an antiunion meeting. Barrow record-
ed that meeting which included comments from employ-
ees. That recording was played before other employees
in a union meeting. Employees who spoke at the antiun-
ion meeting were told that the recording had been
played in the union meeting. Two days after the union
meeting, the house trailer of one of the employees who
spoke in the antiunion meeting was ransacked.
Although neither the Union nor union supporters were
shown to be responsible, the automobiles of three other
antiunion employees were damaged during the campaign.
Additionally, one bomb threat was received at Re-
spondent's facility before the election on June 14.
No showing was made that the Union was involved in
any of the violent activities. "However, such acts will
nevertheless warrant setting aside the election if [they]
disrupted the voting procedure or destroyed the atmos-
phere necessary to the exercise of a free choice in the
representation election." (N.L.R.B. v. Claxton Mfg. Co.
Inc., supra at 618 F.2d 396 (1980)), and cases cited there-
in. On the other hand, no evidence was offered to show
that the Union ever took steps to insure the employees
that it was not involved and that it did not condone vio-
lence.
In one incident, a union supporter was directly in-
volved in violent conduct. Prounion employee Norma
Jean Miller threatened to cut employee Kate Clark's hair
if Clark did not remove a "vote no" button. Also, evi-
dence proved that on numerous occasions union support-
ers threatened violence on a picket line.
Additionally, against the background that, at best, was
troubled, the Union read names of employees at union
meetings in order to, among other things, identify proun-
ion and antiunion employees." Therefore, the evidence
shows there existed an atmosphere of fear and coercion.
The question remaining is whether that atmosphere was
sufficient to have made impossible the uncoerced elec-
tion of a bargaining representative.
Although the Board has found many of the acts pres-
ent here were insufficient to warrant setting aside an
election, I find that the overall record herein requires
otherwise. In that regard, the Board has found insuffi-
cient a threat to cut another employee's hair (Tennessee
Plastics, Inc., 215 NLRB 315 (1974)), threatened picket
line violence (Hickory Springs Manufacturing Company,
" Although Hazel did not admit reading the employees' names in
order to identify those opposed to the Union, other evidence. which I
credit, demonstrates that was done.
239 NLRB 641), and other threats to employees (Ameri-
can Wholesalers, Inc., 218 NLRB 292 (1975).
However, I notice especially alarming in this instance
the taping and subsequent playing of the employees' an-
tiunion meeting." That incident became more serious in
the eyes of employees when one of the antiunion spokes-
men had his home ransacked 2 days after the union meet-
ing. Although a month elapsed before the election, the
Union did nothing to assure employees that it had noth-
ing to do with and did not condone ransacking the em-
ployee's trailer or any of the other incidents involving
property damage and threats, especially the bomb threat.
The Board in Professional Research, Inc., d/b/a West-
side Hospital, 218 NLRB 96 (1975), which was cited by
Respondent, stated "experience has shown . . . that
statements made during an election campaign are the
subject of discussion, repetition, and dissemination among
the electorate." The record herein amply demonstrated
the wisdom behind the Board's statements. The tape re-
cording and playing of antiunion statements by employ-
ees were discussed and obviously conclusions were
drawn as to the significance of that action and its possi-
ble connection with the subsequent ransacking of Benny
Evans' trailer. The playing of the recording would logi-
cally alarm employees and tend to impede further antiun-
ion activity. That activity, especially when coupled with
the subsequent violent activity, also contributed to an at-
mosphere of fear and coercion.
I find that the conditions cited herein, and the entire
record, conclusively show that an atmosphere of fear
and coercion existed at the time of the election sufficient
to have made impossible the uncoerced selection of a
bargaining representative. (Brown Steel Company, 230
NLRB 990 (1977); Poinsett Lumber and Manufacturing
Company, 116 NLRB 1732 (1956)).
B. The Savair Question
The Savair rule requires the setting aside of an election
where employees are promised a waiver of union initi-
ation fees provided the employee signs an authorization
card before the election. N.L.R.B. v. Savair Manufactur-
ing Company, 414 U.S. 270 (1977). The Court of Appeals
for the Fifth Circuit has held, in determining whether a
union's statements violate Savair, "the proper considera-
tion is the objective interpretation by the employees of
the message actually communicated by the Union."
N.L.R.B. v. Polyflex M Company, 622 F.2d 188 (5th Cir.
1980).
The National Labor Relations Board has determined
that the focus should concern itself with whether the
Union intentionally and deliberately waived or reduced
initiation fees conditioned upon the outcome of an im-
pending election. Jefferson Food Mart, Inc., d/b/a Call-A-
Mart, 214 NLRB 225, 227 (1974); Levitz Furniture Co., of
Santa Clara, Inc., 234 NLRB 1195, 1197 (1978).
I find that the comments herein by Union Representa-
tive Hazel, as well as the comments by Raymond Kenne-
dy and other members of the organizing committee, im-
p In addition to contributing to an atmosphere of fear and coercion,
the taping and subsequent playing of employees' remarks at an antiunion
meeting has an inhibitory effect or employees' Sec 7 rights
423
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parted to employees that only by signing an authoriza- In view of the above findings and conclusions, I make
tion card before the election could employees be assured the following:
of not having to pay an initiation fee. Those comments
violate the rules enunciated in both Savair and Polyflex RECOMMENDATIONS
M, supra. It is recommended that the Board find that the above
Therefore, the election should be set aside because of objections filed by Respondent have been sustained and
those statements to employees. that it rescind its Order in the instant proceeding.