Ortronix, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1968

173 N.L.R.B. 385 (N.L.R.B. 1968)

ORTRONIX, INC. 385
Ortronix , Inc. and Sheet Metal Workers ' International
Association , AFL-CIO. Case 12-CA-3249
October 28, 1968
SUPPLEMENTAL DECISION AND ORDER
The Board has reviewed the rulings of the Trial
Examiner 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 Supplemental Decision, the exceptions
and briefs, and the entire record in the case, and
hereby adopts the findings,3 conclusions,4 and rec-
ommendations of the Trial Examiner.
By MEMBERS FANNING, BROWN, AND JENKINS
On December 13, 1965, the National Labor Rela-
tions Board issued a Decision and Order, in the
above-entitled proceeding, in which it affirmed, with-
out comment, the Trial Examiner's Decision, adopted
his findings that the Respondent had violated Section
8(a)(5) by refusing to recognize the Union after it was
certified by the Board, and ordered the Respondent
to take specific action 'to remedy such unfair labor
practices. Subsequently, the Board filed a petition
with the United States Court of Appeals for the Fifth
Circuit for enforcement of its Order. Thereafter, on
July 11, 1967, the Court handed down its Decision2
denying enforcement and remanding the case to the
Board "for a full hearing as to the validity of the
elections and certification." On December 8, 1967,
the Board issued an order reopening the record and
remanding the case for hearing before Trial Examiner
Kessel. On December 11, 1967, the order was
amended so that the hearing could be held before a
Trial Examiner to be designated by the Chief Trial
Examiner. The Board's Order directed a Trial Exam-
iner to receive evidence to determine the validity of
the elections and the certification, in conformity with
the court's decree, and further ordered that upon
conclusion of such hearing, the Trial Examiner should
prepare a Supplemental Decision. The Respondent
then filed a Motion to Amend or Clarify and a Motion
to Stay, both of which were denied by the Board.
On June 25, 1968, Trial Examiner Sidney Sherman
issued his Supplemental Decision, attached hereto, in
which he recommended that the Union's objections
to the election held March 31, 1964 be sustained and
the results of the election be set aside, and that the
employer's objection to the election held January 21,
1965, be overruled and the Union be certified. The
Trial Examiner further found that the Respondent
had engaged in the unfair labor practices, as alleged,
and recommended that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Supplemental Decision. Thereafter, the Re-
spondent and the General Counsel filed exceptions to
the Supplemental Decision together with supporting
briefs.
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 connection with this case to a three-
member panel.
173 NLRB No. 57
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Ortronix, Inc., Orlando,
Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
1 156 NLRB 3.
2 380 F.2d 737
3 We agree with the Trial Examiner that the October 1963 , conduct
of the Respondent alone would not require that the first election be set
aside, but that those incidents were not too remote when considered in
conjunction with the speeches immediately before that election, and
hence the first election was properly set aside based on the totality of
the Employer 's conduct (see TXD, fn. 29).
We also agree with the Trial Examiner 's ruling in his in. 16 that the
testimony given in an earlier hearing in another proceeding by witnesses
not now available was not admissible to establish the facts to which
they had testified , but not for the reason set forth by the Trial
Examiner , i e., the absence of authentication of the transcript through
the court reporter in that case . Rather, we note that the transcript
might have been authenticated by other means and admitted for some
purposes under other circumstances . However, it cannot be accepted as
proof of the matters asserted in the absence of an opportunity for
cross-examination of the witnesses by the Respondent and for observa-
tion of the witnesses by the Trial Examiner in order that he might make
credibility resolutions
In accepting the findings of the Trial Examiner , we do not adopt his
statement regarding the first election which implies that Respondent
"won" the election . The Respondent could not win the election as it
was not on the ballot.
4 In the absence of exceptions , Member Brown adopts pro forma, the
Trial Examiner 's conclusions and the statements in fn 26 of his
Supplemental Decision.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
SIDNEY SHERMAN, Trial Examiner: The charge herein was
served upon Respondent on June 3, 1965, the complaint
issued on June 9, 1965, alleging a refusal to bargain and on
September 14, 1965, Trial Examiner Kessel issued a decision
granting the General Counsel's motion for judgment on the
pleadings, and ordering Respondent to bargain. On December
13, 1965, this decision was affirmed by the Board. ' On July
11, 1967, the United States Court of Appeals for the Fifth
Circuit denied enforcement of the Board's order and remanded
the case for hearing by the Board on various issues raised by
Respondent.2 On December 8, 1967, the Board issued an
order reopening the record and remanding the case for hearing
before Trial Examiner Kessel. On December 11, 1967, this
1 156 NLRB 3
2 380 F.2d 737.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order was amended by directing that the hearing be held
before a Trial Examiner to be designated by the Chief Trial
Examiner, and the undersigned was duly designated for that
purpose. The case was heard on April 1, 2, and 3, 1968, and
the only issues litigated were those bearing on the validity of
the Charging Party's certification as the representative of
Respondent's employees. No briefs were filed before me.
Upon the entire record,3 including my observation of the
witnesses, I adopt the following findings and conclusions
I THE RESPONDENT
Ortronix, Inc., herein called Respondent, is a Florida
corporation and is engaged at its only plant in Orlando,
Florida, in the manufacture of electronic and sheet metal
products. During the 12 months immediately preceding the
issuance of the instant complaint, Respondent received direct-
ly from out-of-State suppliers goods valued at more than
$50,000 and the value of its sales and services relating to
National defense totaled more than $1,000,000. Respondent is
engaged in commerce under the Act.
II THE UNION
Sheet Metal Workers' International Association, AFL-CIO,
hereinafter called the Union, is a labor organization under the
Act.
III. THE UNFAIR LABOR PRACTICES
The central issue raised by the pleadings was whether
Respondent's admitted refusal since May 28, 1965, to recog-
nize, and bargain with the Union, violated Section 8(a)(5) and
(1) of the Act.
Subsidiary questions are whether the Union's certification
on May 17, 1965, as the representative of Respondent's
employees on the basis of an election held on January 21,
1965, was invalid (a) because the Board improperly set aside
an election held on March 31, 1964, which the Union lost, or
(b) because the Board improperly refused to set aside the
election of January 21, 1965, which the Union won.4
A. Sequence of Events
The Union's campaign to organize Respondent's employees
began in March 1963. On September 20, 1963, the Union filed
a petition for a Board elections A hearing on the petition was
held on October 8, 9 and 10. On March 2, 1964, the Regional
Director issued a Decision and Direction of Election.6 In the
election held on March 31, 84 votes were cast for, and 166
against, the Union. On April 6, the Union filed objections to
the election. On June 3, the Regional Director issued a
Supplemental Decision in which he sustained certain of the
Union's objections and directed a second election, and on
August 17, 1964, he issued a Second Supplemental Decision,
which was, in effect, an addendum to the earlier decision, and
3 For corrections of the transcript and a ruling on Respondent's
motion to strike certain testimony , see the order of June 17, 1968.
After the hearing, Respondent offered in evidence its Exhibit 15, which
was received , after due opportunity to the other parties to object
thereto. See the order of June 17, 1968.
in which he found merit in an objection to the election, which
he had failed to dispose of in the prior decision. Respondent's
requests for review of the foregoing Supplemental Decisions
were denied by the Board. The second election, held on
January 21, 1965, was won by the Union, and on January 26,
Respondent filed objections to the election. On April 2, the
Regional Director issued a Third Supplemental Decision, and
on April 12, Respondent filed with the Board a request for
review, which was denied on May 14, and the Union was
certified on May 17, 1965. Since May 28, 1965, Respondent
admittedly has refused to recognize, or bargain with, the
Union as the representative of its employees in an appropriate
unit. On June 2, 1965, the Union filed the instant charge, and
on June 9, 1965, the instant complaint issued. In its answer to
the complaint, Respondent admitted that it had refused to
bargain with the Union, but contended that the Union was not
validly certified because the first election should not have
been, and the second election should have been, set aside. The
General Counsel moved for judgment on the pleadings, which
was opposed by Respondent on the ground that it was entitled
to a hearing before a Trial Examiner on the issues raised by its
answer. On September 14, Trial Examiner Kessel issued a
Decision granting the General Counsel's motion for judgment
on the pleadings, and ordering Respondent to bargain with the
Union. Respondent's exceptions to that Decision were rejected
by the Board, which on December 13, 1965, issued an order
affirming that Decision.? However, on July 11, 1967, the
Court of Appeals for the Fifth Circuit refused to enforce the
Board's order and remanded the case "for a full hearing as to
the validity of the elections and certification."
Pursuant to such remand, the case was referred by the Board
to this Examiner.
B. Discussion
1. The procedural issue
At the outset, Respondent's counsel contended that the
instant hearing should be governed by the rules of evidence
and procedure applicable to representation proceedings, rather
than by those governing unfair labor practice proceedings.
Some support for this contention was afforded by the language
of the Court in remanding the instant case. After reciting the
various contentions of Respondent in opposing the objections
to the first election and in support of the objections to the
second election, the Court said.
In our view there exist numerous substantial and
material issues of fact-there is head-on clash between the
company and Union allegations of irregularity in the two
elections-which call for a formal hearing and the failure of
the Board to provide one was a denial of procedural due
process. See United States Rubber Company v.NL.R.B., 5
Cir., 1967, 373 F. 2d 602. The employer here seeks to
overturn the result of an election and the burden is on it to
show that the election was unfairly conducted. A hearing is,
therefore, necessary and indispensable if a proper and fair
4 There is no issue as to the appropriateness of the unit in which the
election was conducted.
5 Case 12-RC-1802.
6 Respondent 's request for review of this Decision was denied by the
Board
7 156 NLRB 3
ORTRONIX, INC. 387
resolution of all the disputed facts contained in the charges
and counter-allegations of the company and the Union,
taken with the facts which the Regional Director considered
as a result of his investigations, is to be made by the Board.
Until this is done, under the circumstances here, the
employer will not have been given an opportunity to carry
the burden of proving its case.
Citing the foregoing allusions by the Court to the burden on
Respondent of showing that the (second) election was unfairly
conducted, Respondent contends that the Court meant there-
by to imply that, upon remand, the hearing should be
conducted throughout in the same manner as a hearing upon
objections in a representation case, where the objecting party
(union or employer) has the burden of presenting evidence in
support of its objections, and not in the same manner as a
hearing in a refusal-to-bargain case, where the General Counsel
has the burden of proving the Union's majority status,
including, where that is properly in issue, the lack of merit in
the Respondent's objections to the election on which such
status is predicated. As a corollary to the foregoing contention,
Respondent urged that, here, the burden was on the Union to
show that its objections to the first election were meritorious,
and that the General Counsel was not authorized to play a
partisan role, but, as in any hearing on objections in a
representation case, his responsibility was only "to insure that
the record contains as full a statement of the pertinent facts as
may be necessary for determination of the case."8 Under this
view, the General Counsel would have been limited in the
instant case to presenting evidence as to matters not in
controversy or matters of record, and would have been
precluded from calling and examining witnesses as to any other
matter and from cross-examining Respondent's witnesses
The General Counsel and the Union took issue with this
view, insisting that the General Counsel was entitled to
exercise all the authority conferred upon him by Section 3(a)
of the Act with respect to the prosecution of complaints
before the Board.
Respondent's position may reflect some confusion between
(1) proceedings like this, where the only matter before the
Board is an unfair labor practice case, and (2) a consolidated
proceeding, where a representation case and complaint case
have been joined together. In the latter situation, the General
Counsel is relegated to a nonadversary role with regard to
issues peculiar to the representation case.9
However, here the representation proceeding has not been
consolidated with, but has been merged into the complaint
case, and the only issues presently before the Board for
decision are those raised by the allegations of the complaint
that the union was validly certified as the representative of
Respondent's employees and that Respondent's refusal to
bargain was therefore unlawful 10 It is axiomatic that in any
unfair labor practice case the burden of proof is on the General
Counsel, as the moving party, to prove the allegations of the
complaint and no basis has been suggested for departing from
this rule, other than the aforequoted language in the court's
opinion. However, there is reason to regard such language as
mere dictum, since at no point in the proceedings culminating
in the decision of the court did any party contend that, if
there was a hearing before the Board on the instant complaint,
it should be governed by the rules pertaining to representation
hearings.' i While the court's opinion is entitled to respect as
the law of the case, it would seem that to justify such a radical
departure as Respondent proposes from basic principles of
procedure, as well as from the provisions of Section 3(a) of the
Act, a clearer expression of the court's intention in that regard
would be necessary. Moreover, it seems a fair reading of the
court's language that it meant only to say that Respondent's
contention that it was justified in refusing to honor the
Union's certification because of matters allegedly affecting the
validity of such certification constituted an affirmative de-
fense, as to which Respondent properly had the burden of
proof (or that Respondent at the very least had the burden of
coming forward with some evidence to offset the fact of the
Union's certification.) That would explain why the court
alluded only to Respondent's burden in this proceeding, and
not to that of the Union, which, of course, was not in the
position of pleading an affirmative defense, but only of
asserting the validity of the allegations in the complaint.
In view of the foregoing considerations, Respondent's
proposal to limit the General Counsel's participation in the
hearing was rejected at the instant hearing,' 2 and that ruling is
now adhered to.i 3
2. The first election
a. The Decision and Direction of Election
That Decision, which issued on March 2, 1964, provided,
inter alia, that a number of individuals, whose status as
supervisors was in dispute, might vote subject to challenge. In
its request for review of that Decision, Respondent contended
that the reasons assigned therein for disposing of the issues in
that manner were invalid and that the Regional Director
should have made a determination in that Decision as to the
eligibility of these persons. The Board denied the request for
review. In its answer to the instant complaint, Respondent, in
effect, renews the foregoing contention. However, Respondent
did not allude thereto at the instant hearing. In any case, since
8 See Board 's Statement of Procedures , Sec. 101 20 (c) and 101 21
(c)
9 Such consolidation is often resorted to where the Board has before
it at the same time ( 1) a representation case in which a union has filed
objections to an election because of alleged coercive preelection
conduct by the employer, and (2) an unfair labor practice case, in which
the same conduct is alleged to violate Section 8(a)(1) of the Act In
such a consolidated proceeding, the General Counsel properly prose-
cutes only those matters pertaining to the objections which fall within
the scope of the complaint. As to any other aspect of the objections,
the General Counsel plays a neutral role, and the union has the burden
of adducing relevant evidence
10 Moreover , even if it be assumed that there is a consolidation here
in substance , if not in form , of the two proceedings, it is clear that the
issues pertaining to the validity of the certification are not peculiar to
the representation case but necessarily stem from the allegations of the
complaint , and are therefore properly prosecutable by the General
Counsel
11 Certainly, Respondent had no reason to urge the court to place on
Respondent the burden of proving its objections
12 However, out of an abundance of caution, I directed that all
witnesses called by the General Counsel be described on the record as
witnesses "for the General Counsel and/or the Union."
13 See Belber Manufacturing Corp , 146 NLRB 358, 366, where the
Board rejected a contention similar to that urged here by Respondent.
Respondent does not contend that due process requires that it be
afforded a representation case hearing rather than an unfair labor
practice case hearing Such a contention would, in any event, be
groundless.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union lost the election, any error in the Regional
Director's treatment of the eligibility of alleged supervisors
could not have prejudiced Respondent, and it is presumed that
Respondent does not now seriously contend that the first
election (which it won) was invalid for that or any other
reason.
b. The Union's objections
On June 3, 1964, the Regional Director issued a Supple-
mental Decision sustaining two of the Union's objections to
the first election, (Objections Nos. 4 and 7) and in his Second
Supplemental Decision, which was, in substance, merely an
addendum to his prior decision, a third objection (No. 2) was
sustained. These will next be considered.
(1) Interrogation
Objection 2 alleged interrogation of employees about their
Union membership, activities, or preferences. The Regional
Director found that on various dates in October 1963, six
employees were interrogated about their own Union senti-
ments or those of other employees. Although such conduct
occurred from 5 to 6 months before the first election, the
Regional Director concluded that it was not too remote to
affect the election. In its request for review of the Second
Supplemental Decision, Respondent did not take any issue
with the facts found by the Regional Director but only with
his legal conclusion that the interrogation was not too remote
in time to affect the election. Respondent's request for review
on this ground was denied by the Board, and the court's
opinion contains no comment on the merits of this, or any
other, objection to the election. 14
At the instant hearing, this, as well as the other objections
were fully litigated de novo, and it will be considered de novo
on the assumption that this was contemplated by the remand.
Employee Rose Ruland testified that about October 1,
1963, Creamer, an admitted supervisor, after asking another
employee, Steelman, in the witness' presence, what he thought
of the Union, turned to the witness and asked her the same
question, and that on October 24, Morusty, Creamer's assis-
tant, interrogated the witness concerning her wearing of a
Union button.
Employee Barris testified without contradiction, and I
find, that in October he was asked by Howitt , an alleged
supervisor, how he and other employees felt about the Union,
and how the witness would vote in the election, if it were held
the next day. However, Barr acknowledged that Howitt told
him at the same time that it was up to him whether to vote for
or against the Union, and that he did not have to answer
Howitt's questions.
Irene Bentley, an employee, testified that early in October,
Hooker, an admitted supervisor, asked if the witness had seen
14 As already noted, the court remanded the case only because it
thought Respondent had been foreclosed from presenting additional
evidence , and not because of any disagreement with the propriety of the
Regional Director 's findings on the evidence discussed by hun.
15 Barr was classified as a leadman and directed the work of five or
six other employees . Respondent did not affirmatively contend that he
was a statutory supervisor , and such evidence as was elicited on this
point would not, in any event, support such a contention.
16 In addition to the foregoing , the General Counsel offered in
evidence testimony at a prior hearing, in another unfair labor practice
case against Respondent (Case 12-CA-2761), concerning interrogation
another employee take one of the Union cards or buttons that
had been distributed to the employees that day during their
lunch break.! 6
Hooker denied the interrogation ascribed to her by Irene
Bentley, but admitted that she was not relying on her present
recollection of the matter but only on a written statement
prepared in 1963 by an agent of Respondent. Under all the
circumstances, I credit Irene Bentley's testimony as to the
interrogation by Hooker.
Creamer testified that he became a supervisor in the
beginning of 1963, and that he was "reasonably sure" that he
did not interrogate Ruland or any other employee. When asked
to explain the basis for this belief, Creamer, after some
hesitation, cited only the fact that he had been instructed by
higher management not to discuss Union activities, and stated
that he was sure he complied with that instruction. As I was
favorably impressed by Ruland's demeanor and as her recollec-
tion of the matter seemed firmer than Creamer's, I credit her
testimony and find that both she and Steelman were interro-
gated by Creamer in the manner described by her; and, as
Morusty did not testify, I also credit Ruland as to the
interrogation by Morusty.
Morusty's supervisory status was litigated at some length.
Ruland testified that Morusty, acting as Creamer's assistant,
assigned work to about 25 employees, and that Stanley
Bentley, an admitted supervisor, told the witness to see
Morusty about time off, in the absence of Creamer, and to
consult Morusty about any work problems or personal
problems. Moreover, it was stipulated that Respondent's files
contained a number of "warning notices" issued by Morusty in
the summer of 1963, consisting of adverse comments on the
performance of several employees, and recommending that
two of them be terminated. Respondent's President Kilbey
acknowledged that warning notices in an employee's personnel
file might ultimately lead to disciplinary action, depending on
how serious the matter was. Neither Morusty nor Jones, who
had ultimate responsibility for disciplinary action in her
department, nor Stanley Bentley was called to testify.! 7
Under all the circumstances, particularly the undenied testi-
mony of Ruland concerning Stanley Bentley's instructions to
her to report to Morusty for time off in the absence of
Creamer and to take up with Morusty any work problems,
which impliedly included any grievances about her working
environment and her relations with her fellow employees, it is
found that Morusty was a statutory supervisor at all times here
relevant.
As to Howitt, the record contains nothing about his duties
and authority other than a stipulation that he was night
foreman in the mechanical department. As this alone is
insufficient proof that he was a statutory supervisor, no
finding of interrogation by Respondent will be based on Barr's
testimony about Howitt.
of other employees by Creamer , Stanley Bentley, and Hooker. The
General Counsel explained that the witnesses who so testified at the
prior hearing were no longer available Respondent objected to such
offer, and , as the General Counsel failed to authenticate the prior record
through the court reporter in that case , the proffered testimony was
rejected as hearsay . (The poor case culminated in a settlement
agreement )
17 Respondent 's counsel explained that he was unable to locate
Morusty, and that Bentley was presently in Indiana , and it was not felt
that the expense of obtaining his testimony was warranted No
reference was made by counsel to Jones.
ORTRONIX, INC 389
It follows that the General Counsel has proved 4 instances
of interrogation involving only 3 employees (Ruland, Steelman
and Irene Bentley) out of a unit of over 300 employees,
occurring over 5 months before the election. In view of the
remoteness of these incidents in relation to the election,18 and
the relatively small number of employees affected,19 a finding
that by the foregoing interrogation alone Respondent inter-
fered with the election is not deemed to be warranted.20
(2) Threats and promises
Union Objection 4, which was sustained by the Regional
Director, reads:21
Promised employee benefits conditioned on refraining from
voting for or supporting the Petitioner [the Union] , and
directly and in a veiled manner threatened employees with
economic reprisals if they supported the Petitioner or if it
won the election.
In support of this objection, employee Campbell testified
that about October 1, Parrish, an admitted supervisor, re-
marked in the presence of an unspecified number of employees
that they might as well enjoy their coffee breaks while they
could, because they would be taken away when the Union
"got in." Although Parrish controverted this testimony, I
credit Campbell on the basis of demeanor, as well as the
circumstantiality of her testimony.
Campbell testified, also, that about November 1, Personnel
Director McGraw, at a plant meeting, warned that anyone who
solicited for the Union on company time would be
discharged 22 McGraw testified that in the early spring of
1963, there was posted on plant bulletin boards a notice, a
copy of which was received in evidence, which set forth 23
plant rules, enforceable by suspension or discharge, including a
prohibition of the following conduct:
Solicitation within the plant for personal gain or for any
other reason, including membership in any organization
while on Company time. Welfare and similar collections
may be made only after receipt of written permission from
the Division Superintendent or Department Head.
According to McGraw, after receiving complaints from
supervisors that a considerable amount of production time was
being lost by discussions among employees while at work, and
assuming that such discussions involved solicitation, he re-
minded the employees of the foregoing rule and of the
penalties prescribed for violation thereof. McGraw acknowl-
edged that, in citing the ban on solicitation in the rule, he
might have indicated that this included solicitation for a union.
President Kilbey's version was that he received numerous
reports from employees that they had been solicited by other
employees during work hours to sign Union cards, and that he
directed McGraw to talk to the employees about the matter.
While there are obvious discrepancies between the versions of
McGraw and Kilbey, they are not so material as to require
rejection of their testimony in toto, particularly when one
considers that it was given more than 4 years after the event,
and that there is no other contrary testimony. It is accordingly
found that the November 1 warning was delivered by McGraw
as a result of complaints by supervisors or employees about
Union solicitation during work time.
Although Campbell professed to be unaware of any no-
solicitation rule, Respondent's President Kilbey confirmed the
existence and promulgation of the foregoing notice,23 and, in
view of such corroboration, it is found that such notice was
posted at least as early as the spring of 1963.
Accordingly, even if it be assumed, as Campbell's testimony
implies, that McGraw on November 1, made reference only to
union solicitation on company time and warned that any
employees engaging therein would be discharged, it is not clear
how such a warning could afford ground for setting aside the
election. The General Counsel does not challenge the validity
of the no-solicitation rule.24 The gravamen of his complaint
seems to be that, while warning the employees on November 1,
that Union solicitation during work violated the plant rule and
would be punished by discharge, Respondent faded to issue
any like warning with respect to other forms of solicitation
during work time, which, according to the testimony of
Campbell, prevailed in the plant However, the rule itself,
proscribed such other solicitation, and there is no evidence
that Respondent modified the rule so as not to apply thereto.
Certainly, such modification may not be inferred merely from
the fact that Respondent, confronted with a special problem
involving Union solicitation on company time, called to the
attention of the employees the fact that such solicitation
violated the rule. Nor may such modification be inferred from
the testimony elicited by the General Counsel from Campbell
concerning work-tune solicitation by employees of other
employees to buy merchandise. Although such solicitation, so
far the record shows, was not the target of any warning by
McGraw, there is no cogent evidence with respect to such
18 Irene Bentley testified that Hooker 's interrogation did not affect
her vote in the election , and it is highly speculative that the votes of
Ruland or Steelman were affected by the interrogation described above,
after an interval of over 5 months.
19 There was no evidence that any other employees were aware of
these incidents
20 West Texas Equipment Co., 142 NLRB 1358.
21 Objection 7, which was also sustained , substantially duplicates
Objection 4, and will not here be separately considered.
22 There is a procedural problem here. While Objection 4 alleged
threats of "economic reprisal " for adherence to the Union, no reference
was made to the foregoing November 1 incident by the Regional
Director in dealing with Objection 4 It is true that reference was made
thereto in the Second Supplemental Decision in connection with the
discussion of Objection 2 (interrogation ), but it was there cited only in
justification of the Regional Director 's view that the effect of the
interrogation in October was not dissipated by the passage of time, since
Respondent thereafter engaged in other unlawful acts, including the
November 1 warning . It may be, therefore , that the incident should be
considered, if at all, in connection with Objection 2 rather than 4.
However, as the result would not be affected, in any event , it will be
dealt with here.
23 While he gave the date of such promulgation as the late summer of
1962, rather than the spring of 1963, I do not deem this discrepancy of
sufficient moment to require rejection of Respondent 's evidence that
such a rule was in fact promulgated before McGraw' s November 1
warning Neither Campbell nor any other employee specifically denied
that the notice in question was posted , and Campbell's ignorance of
the no-solicitation rule may well be attributed to her failure to read the
notice or to read that portion thereof relating to that rule.
24 While the ban on solicitation during "company time " might be
deemed ambiguous, in that such time could be construed to include
work breaks, the General Counsel did not so contend , and there was no
evidence that it was in fact so construed by Respondent or the
employees There was, on the contrary, evidence that the employees
freely engaged in solicitation for the Union during work breaks. (See
Irene Bentley 's testimony, related above , regarding the distribution of
Union cards or buttons during lunch time )
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicitation, as there is in the case of the Union solicitation,
that higher management was apprised thereof,2 5 or that it was
so extensive as to cause substantial loss of production time.
Accordingly, there is insufficient basis for finding that on
and after November 1, the Respondent construed the no-
solicitation rule as directed only against Union activity or
intended to convey the impression to the employees that that
was the sole object of the rule.
Accordingly, it is found that McGraw's warning of
November 1, does not warrant setting aside the election.26
Respondent's speeches
Finally, in support of the Union's fourth objection there
were introduced in evidence copies of speeches given by
McGraw to employees on March 23, and 26, 1964, and a
speech by Kilbey on March 30, 1964.
McGraw's speeches stressed, inter alia, the danger under a
union of strikes and loss of employment. Thus, the March 26
speech contains the following
(1) With the Union, there is always the danger of strikes
and work stoppages which cause unemployment. If any-
thing, the Union guarantees you insecurity.
(2) Without a union, we can guarantee uninterrupted
production and delivery to our customers.... With a union,
we face the danger of strikes and work stoppages which
interrupt production, decrease business, lose customers, and
cause the loss of jobs and fringe benefits.
(3) When the union makes a demand which Ortronix feels
is not in the best interests of the employees and the
Company, we will say NO. The union will probably call a
strike, and there goes jobs and business down the drain.
(4) Under the law, if the Union makes you go out on
strike, Ortronix is free to replace the strikers with new
employees. When the strike is over, someone new has your
job, and you are out in the cold. The law does not force
Ortronix to rehire you.
In addition, the March 26 speech referred to the danger that
under a Union contract the employees might lose some of their
existing benefits. On this score, the speech contains the
following
(5) Bargaining does not start with present benefits. We may
start bargaining with no benefits and go up from there. The
union may even "trade" benefits for things they want for
union security. For example, a check-off clause may be
"traded" for one or two of your paid holidays.
(6) The union cannot guarantee you anything in the way of
new and additional benefits. They can't even guarantee you
that you will keep all of the benefits you now have. If the
union demands interfered with the efficient operation of
the Company, the Company would be legally justified in
demanding a reduction in wages or fringe benefits in order
to operate profitably 27
In the March 30 speech, Kilbey cited examples of the
connection between unions and strikes and the difficulty of
operating profitably under work restrictions imposed by
unions, and concluded on this note:
What can the Union get you. In my opinion, all they can
guarantee you is a lot of grief and that you'll pay your dues.
In addition, Kilbey's speech indicated that as a result of
certain new business obtained by Respondent it expected to be
in a position "to pave some of the parking lots, buy new hand
tools, afford company picnics and provide outdoor lunch
benches."
At the hearing, when asked whether he made the latter
remarks to show that the employees did not need a union to
obtain the benefits mentioned by him, Kilbey candidly
answered, "Correct." That this was his purpose was evident, in
any case, from the timing and circumstances of his speech.
That a promise of benefits made for such a purpose interferes
with freedom of choice in an election hardly needs citation of
authority.
As to the various remarks related above concerning the dire
consequences of union representation, the conclusion that
they are coercive seems amply supported by such Board
decisions as Dal-Tex Optical Company, Inc,28 and Astronau-
tics Corporation of Amenca.2 9
25 Kilbey professed to be aware only of the annual collections among
employees for the Community Chest, which he authorized, as provided
for in the rule (He admitted that in September 1963, he authorized a
political candidate to tour the plant and shake hands with the
employees during work time However, this was not contrary to the
letter of the rule, which forbade only solicitation by employees, and
was, in any case, only an isolated incident.) Campbell testified to
collections by "supervisors" from employees during worktime for an
employee "Sunshine Club." The only "supervisor" identified by her in
that connection was Sipe, who directed Campbell's work However, the
evidence as to his supervisory status was meager, and, in any event,
under the terms of the rule, such collections were permitted if
authorized by the Division Head or Department Superintendent. Absent
any evidence on that point, it may not be assumed that there was no
compliance with the rule in that aspect.
Campbell's testimony indicates, also, that for an unspecified period
prior to December 1963, she was solicited at work by McLaughlin to
buy Avon products. The record shows that McLaughlin was a statutory
supervisor, albeit a minor one, at least until August 1963. However,
there was no evidence to refute the denial of McGraw and Kilbey that
they were aware of any merchandising activity by employees (or
supervisors) during worktime. (Since McLaughlin, if she did engage in
such activity, contrary to the company rule, would not be likely to
disclose that fact to higher management, this is not a situation where
her knowledge may properly be imputed to Respondent. The same
would be true of Sipe, were he deemed to be a supervisor) See
Astronautics Corporation of America, 164 NLRB No 89, Campbell
Soup Co , 170 NLRB No 167
26 Even if it were found that such warning, under all the circum-
stances, converted the general no-solicitation rule into a rule only
against Union solicitation, it still would not be clear how such a rule
could unduly impede the Union's efforts to reach the employees. I am
aware of no authority for holding that the promulgation of such a rule
constitutes interference with an election, absent discriminatory enforce-
ment thereof as between competing unions or factions involved in the
election. There was no evidence of such discrimination here.
27 The foregoing remarks were delivered in the form of answers to
questions posed by McGraw According to his testimony , some of these
questions had actually been asked by employees on the occasion of his
March 23 speech, as in the case of excerpts ( 1), (3), and (6), above The
other questions originated with McGraw, himself.
28 137 NLRB 1782 (warning that collective bargaining may lead to
loss of benefits, and would probably result in strikes and loss of
employment) See also The Trane Company, 137 NLRB 1506.
29 164 NLRB No. 89 (bargaining would start "from scratch",
employer not required to continue existing benefits ). In that case the
Board cited the fact that the "bargain -from-scratch" statement was
made in the context of other unfair labor practices. Here, while it has
been found that the preelection interrogations and the threat by Parrish,
considered above, were too remote in time to affect the election, the
same conclusion does not apply when they are considered in conjunc-
tion with the preelection speeches . This is particularly true of Parrish's
threat that, if the Union prevailed , Respondent would take away the
employees ' coffee breaks, if one considers such threat in conjunction
with McGraw's warning that Respondent might bargain from "no
benefits " and that there was no assurance that under a union contract
existing benefits would be retained
ORTRONIX, INC 391
With respect to the present objection, Respondent appar-
ently relies on the authorities and arguments appearing in its
request for review of the Regional Director's Second Supple-
mental Decision.30 There, the thrust of Respondent's argu-
ment was that, contrary to cited precedents,3 i the Regional
Director, in evaluating Respondent's propaganda, had failed to
consider that it was issued in reply to the Union's election-
eering claims and arguments In this connection, the record
shows that between March 23 and 27, 1964, the Union
distributed seven handbills, which stressed the inadequacy of
Respondent's wages, cited other alleged substandard working
conditions in Respondent's plant, and enlarged on the efficacy
of a union in remedying these conditions and as a protection
against arbitrary discharge. Typical is the following
A decent Wage Scale and Grievance Procedure can be yours
under a strong Union Agreement negotiated by the Sheet
Metal Workers Union and your Committee at Ortronix.
Certain of the cases cited by Respondent indicate that the
Board will allow greater leeway to an employer, in a
preelection campaign, where his remarks are provoked by, or
addressed to, the Union's propaganda claims. However, none
of these cases goes so far as to hold that, in response to a
Union's claim that it will aid the employees to achieve greater
job security and other benefits, an employer may assert, as
here, that designation of a union as the employees' bargaining
agent is a guarantee of insecurity and "grief " While Respond-
ent was justified in pointing out that the Union's demands
would be the subject of negotiation and that no one could
assure the employees what the outcome would be,32 or that
Respondent's financial condition would limit the amount of
any wage gains under a union,33 or that it had the right to
replace economic strikers in the event of a strike,34 there was
no justification for implying, as Respondent did, that loss of
job security and other forms of "grief" would be a certain and
inevitable result of voting the union in.
Moreover, none of these cases holds that a union's election-
eering promises justify an employer in making promises of his
own regarding improvements in working conditions .3 5
It is accordingly concluded that, even after giving due
weight to antecedent events, McGraw's speeches and Kilbey's
speech were coercive in the respects noted above and war-
ranted setting aside the first election.
3. The second election
This election was held on January 21, 1965, and resulted in
a vote of 79 for, and 59 against, the Union.36 Respondent
filed timely objections to the election on five grounds, all of
which were overruled by the Regional Director, without a
hearing, in his Third Supplemental Decision, and Respondent's
request for review of such decision was denied by the Board.
The first objection in effect asserts merely that the second
election was invalid because the first election was improperly
set aside. Consistently with the findings above, this objection is
overruled.
Respondent's second objection was to the effect that the
selection by the Regional Director of the date of the second
election was arbitrary, in that Respondent had requested an
earlier date. At the hearing, Respondent stated that it did not
intend to offer any evidence in support of this objection.
Presumably, this signified waiver of the objection. In any case,
absent any evidence in support thereof, it is hereby overruled.
The third objection alleges that the Regional Director acted
arbitrarily in including in the official notice to employees of
the time and place of the second election a statement as
follows:
NOTICE TO ALL VOTERS: The election conducted on
March 31, 1964, was set aside because the National Labor
Relations Board found that certain conduct of the Em-
ployer interfered with the employees' exercise of a free and
reasoned choice. Therefore, a new election will be held in
accordance with the terms of this Notice of Election. All
eligible voters should understand that the National Labor
Relations Act, as amended, gives them the right to cast their
ballots as they see fit, and protects them in the exercise of
this right, free from interference by any of the parties.
At the instant hearing, in support of this objection,
Respondent offered in evidence only a copy of the official
election notice. In rejecting this objection, the Regional
Director relied on The Lufkin Rule Company case,3 7 where
the Board, in response to a motion filed by the union involved,
directed that the official notice of a second election contain
language substantially identical with that quoted above.3 8
Neither in its request for review nor at the instant hearing
did Respondent suggest any reason for distinguishing the
Lufkin case,39 and I can perceive none. Accordingly, it is
recommended that this objection be overruled.
Respondent's fourth objection reads as follows.
That the Petitioner [Union] , through its agent or those
acting for or on behalf of the Petitioner, misrepresented to
the employees of the Employer material facts relating to
the profit of the Company on the eve of the election and at
a time when the Employer did not have an adequate
opportunity to respond. Further, the Petitioner made
material misrepresentations in handbills distributed by the
Petitioner on the 18th day of January, 1965 and on the
30 Respondent made no argument on the merits before me , but in its
answer to the complaint incorporated by reference the contentions
advanced in its various requests for review.
31 Decorated Products, Inc., 140 NLRB 1383, Arch Beverage Corp.,
140 NLRB 1385, Hy Plains Dressed Beef, Inc., 146 NLRB 1253,
American Greetings Corp., 146 NLRB 1440, Claymore Manufacturing
Co , 146 NLRB 1400, Shure Brothers Incorporated, 147 NLRB 43
32 See Hy Plains Dressed Beef, Inc, supra.
33 Ibid, Arch Beverage Corp., supra
34 Decorated Products, Inc., supra. Moreover, had Respondent here
commented on the Union's own strike record, rather than attempting to
equate unions , in general , with strikes , such comment might well have
been privileged. See American Greetings Corp , supra, Shure Brothers
Incorporated, supra
35 The Board has consistently refused to equate union promises with
employer promises in this respect , but regards the latter alone as
coercive, the rationale being that the employer has the obvious , present
power to fulfill his promises , whereas the fulfillment of the Union's
promises depends on contingencies , which are either apparent to the
employees or may readily be pointed out to them by the employer.
36 See G C. Exh. 7.
37 147 NLRB 341.
38 The instant objection contained an assertion by Respondent that
it believed that the disputed language was inserted in the notice by the
Regional Director on his own motion, and not at the request of the
Union. However, while in the Lufkin case the Board acted on a motion
by the union involved, there is no reason to believe that such a motion
would be required in all cases.
39 In fact , in its request for review, Respondent conceded that the
application of the rule of the Lufkin case to the instant situation was "a
matter of apparent discretion " and offered no argument with respect
thereto.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
19th day of January, 1965. Such conduct prevented the
employees from exercising their free and untrammeled
choice in the election.
In Hollywood Ceramics Co, Inc.,4 0 the Board announced
that, in determining whether a misrepresentation warranted
setting aside an election, it would consider the following
factors
1. Whether the misrepresentation involved a substantial
departure from the truth with regard to a matter of more
than de minimis significance to the employees.
2. Whether the other party had an opportunity to make
an effective reply.
3. Whether the employees had such independent knowl-
edge of the subject matter of the misrepresentation as to
enable them adequately to evaluate it
4. Whether the party making the misrepresentation had
such intimate knowledge of the subject matter thereof that
the employees might be expected to attach special weight
thereto 4 1
In discussing hereinafter the alleged Union misrep-
resentations, an attempt will be made to indicate the extent to
which the foregoing factors are applicable. At the outset, it
may be noted that none of such misrepresentations related to
matters within the peculiar knowledge of the Union.
In support of the instant objection, Respondent adduced
the following-
a. The January 18 handbill
A union circular distributed on January 18, 1965, read, in
part, as follows:
(1) The employees have been shabbily treated in most
instances To name a few ... How well were you informed
and how well were you treated when pay day came and
went, and you got no pay? Was management thinking of
you ... They were not only silent, they failed to show their
face....
(2) How about the 12% pay cut? Has this been fully
restored?
(3) How about those employees on layoff this summer ...
How many, when recalled, received their former inade-
quate low wage rate? Most, if not all found they had lost
their "seniority" and were forced to start again at the "new
employee" hiring rate! Was this fair treatment9
(1) The missed payday
As to (1), above, the reference there is to the fact that on
December 13, 1963, Respondent was unable to meet its
payroll and no pay checks were distributed. Respondent takes
issue only with the allegation in the handbill that management
"failed to show their face" on that occasion. Respondent
adduced testimony that on December 13, pursuant to an
announcement made to all employees over the plant public
address system, several representatives of management circu-
lated throughout the plant and made small loans out of their
40 140 NLRB 221
41 E g , where a union misrepresents the benefits obtained by it for
employees in another plant
For cases involving application of one or more of the above criteria,
see York Furniture Corp., 170 NLRB No. 69, United Steelworkers of
America (Luxaire, Inc.) v. N.L.R.B., 393 F.2d 661 (C.A.D.C. ), and cases
there cited , Newport Mining Corp., 170 NLRB No. 85.
own funds to employees , in order to mitigate any hardship
they might suffer as a result of missing their pay. As there was
no effective contradiction of such testimony , it is found that
such loans were in fact made and that the statement in the
handbill that management , in effect , ignored the employees'
plight on December 13, was to that extent inaccurate.
However, in a speech delivered by McGraw on January 20, the
day before the election , the following reference is made to this
allegation of the handbill:
The Union didn't tell you how Mr . Thiele and Mr. Kilbey
and Mr. Bowers dug down into their own pockets to give
personal loans to employees when we didn 't get paid . Is this
what the Union calls "not showing their face?"
It is evident , therefore , that Respondent not only had an
adequate opportunity to make an effective reply to the
Union's charge, but did in fact make such a reply.
(2) The "12 per cent pay cut" and the recall of employees at
the "new employee" rate
As to (2), above, McGraw acknowledged at the instant
hearing that the employees suffered a reduction in pay in April
1964, but insisted that this amounted only to 9 to 10 percent
and not 12 percent, as was represented in the handbill. Union
Agent Reid testified that he was informed by employees that
the wage cut amounted to 12 percent, and employee Watts
testified (a) that a management representative announced that
there would be a 12 percent cut, and (b) that his own hourly
pay was in fact cut from $1.99 to $1.75, or by slightly more
than 12 percent. From a review of an exhibit prepared from
Respondent's own records, which shows the extent of the pay
cuts for about half of Respondent's work force (as of the date
of the second election),42 it appears that, while some
employees hourly pay was cut by more than 12 percent,43 m
the vast majority of cases the reduction amounted to less than
12 percent, and in some cases was even less than 5 percent. It
seems not unlikely, therefore, that McGraw's figure of 9 to 10
percent was closer to the average percentage loss suffered by
the employees than the Union's 12 percent figure. To that
extent, the Union's statement is deemed inaccurate.
As to (3), above, Respondent's records show that 27
employees were laid off in the spring and summer of 1964, and
recalled in the fall months. McGraw testified that, while these
employees lost their seniority by reason of their layoff, their
pay rate was not adversely affected thereby, and they returned
to work at the same rate as they had when laid off, subject to
any intervening, plant-wide changes in wage rates.44 Respond-
ent's records show, that, while 3 of the 27 laid off employees
returned at the same rate as was currently being paid to newly
hired employees in the same classification, the rest returned at
rates ranging from 5 cents to 40 cents above the current hiring
rate Thus, the Union's assertion that "most, if not all" of the
laid off employees returned at the hiring rate was substantially
inaccurate
Although it has been found that (2) and (3), above,
contained departures from the truth, it is appropriate to
inquire under the rule of Hollywood Ceramics, supra, whether,
42 Resp . Exh. 15.
43 E.g., M Hardeman ( 14+ percent), Nevius ( 17+ percent), Adkins
( 13 percent), Ohmer ( 14 percent).
44 Such changes included the 9 to 10 percent pay cut effected on
June 1, 1964, which is discussed above, and subsequent , partial
restoration of such pay cut.
ORTRONIX, INC 393
inter alia, the employees had sufficient independent knowledge
of the subject matter of the misrepresentations to enable them
to discount them, and whether Respondent, in any event, had
sufficient opportunity to expose the Union's inaccuracies.
The record shows that McGraw made no reference to either
of the foregoing representations in his January 20 speech, and
at the hearing he gave shifting explanations therefor, at first
insisting that he either did not take note of the foregoing
statements in the handbill, or that, in the case of the allegation
as to the pay cut, he did not have an opportunity to verify the
Union's 12 percent figure before he delivered his speech, but,
when confronted with a pretrial affidavit, in which he
attributed his failure to comment on these matters in his
speech to the fact that he did not regard them as sufficiently
important to warrant comment, McGraw acknowledged that
such was in fact his judgment on January 20 . He insisted,
however, that, in reaching this conclusion, he had considered
only the fact that the older employees would be familiar with
the true facts about the pay cuts and the rates paid those
recalled from layoff, either through their personal experience
or thanks to the plant "grapevine,"4 s and that he had
overlooked the fact that 30 odd employees had been hired
after June 1, 1964, when the pay cut was instituted, and so
had no personal knowledge of the facts pertaining thereto, and
would not, he assumed, acquire such knowledge or learn the
truth about the rates paid to those recalled from layoff. When
asked if he made this assumption because the newly hired
people were not "in" with the older employees, McGraw
answered vaguely, "More or less," and offered no other
explanation.
Thus, the Respondent is now in the position of asking the
Board to overrule the judgment made on the spot by its own
personnel director as to the materiality of the inaccuracies in
the Union's propaganda, and as the only basis therefor cites his
asserted afterthoughts about the validity of certain assump-
tions made by him on January 20-afterthoughts, which not
only conflict with the initial reason assigned by McGraw for
not answering the Union' s allegations , but which are predi-
cated on an apparently arbitrary assumption that, while the
plant grapevine was so effective as to reach all the older
employees within 10 minutes after the event,46 it would not
reach any of the newer employees at all.
It seems that little weight should be given to McGraw's
attempts to discredit his own initial judgment through un-
supported speculation. Rather, such initial judgment is entitled
to controlling weight as that of the representative of manage-
ment who was in the best position to appraise the temper and
mood of the employees and to determine what items in the
Union's handbill were likely to influence their choice in the
election.
In any case, it can no longer be seriously contended that
Respondent did not have an adequate opportunity to reply to
those misstatements. This is abundantly clear from McGraw's
own, final position that his failure to reply was due to
considerations other than lack of opportunity.
It is accordingly concluded that the employees had suffi-
cient independent knowledge of their own rates and those of
their fellow employees to take the sting out of the Union's
misrepresentations as to those matters, and that, in any case,
Respondent had sufficient opportunity to make an effective
reply.
b. The January 19 handbill
On January 19, the Union distributed a handbill which, in
effect, labeled as false a management promise to restore past
wage cuts, and posed the following question'
Is it not true that the overall wage pattern is lower than a
year ago? A year and a half ago' Two years agog
In his January 20 speech, McGraw stated:
We're restoring the wage cut as fast as we can just as we
promised When it is completely restored we'll go to work
on the merit review porgram, just as we promised you last
October....
Every cent that can be channeled into wages is being spent
that way, and we guarantee that we will continue to do this
until everyone is making at least as much as he was last
June, before the wage cut.
It is thus clear that Respondent not only had an oppor-
tunity to, but did, comment on the Union's charges regarding
the restoration of the wage cuts and the current wage level. It
is also notable that in his speech, McGraw neglected to take
issue with the claim that the wage cuts had not been restored
and that the overall wage pattern was currently lower than in
the past.
At the hearing, McGraw at first asserted that "almost all"
the wage cuts previously effected had been restored by
January 20, but he later testified that as of January 20, no
employee's wage cut had been fully restored 47 As to the
Union's allegation that the overall wage pattern was lower in
January 1965, than at various times in the past, McGraw
insisted that it was false because Respondent's "basic pay
policies," as established in January 1963, had not changed. In
explaining this conclusion, he stated, "The basic rates for the
jobs and the methods for hiring had not been changed or
altered in any way" at the time of the second election.
However, McGraw acknowledged, in effect, that in January
1965, the actual level of wages was lower than the year before
Thus, Respondent's position is, essentially, (1) that the
Union's charge that management had failed as of January 20,
to fulfill its promise to restore wage cuts was false because by
that date some progress had been made in that direction, and
(2) that the Union's claim that the "overall wage pattern" was
lower than in the past was false, because there had been no
change adverse to the employees in basic wage policies.
However, both these positions assumed that the employees
would interpret the Union's allegations in a particular manner.
Thus, as to (1), above, it is assumed that the employees would
interpret the charge as to the wage cuts as meaning that no
part of such cuts had been restored (which was false) and not
45 According to McGraw, this grapevine was so effective that 10
minutes after the laid off employees were recalled "their rates were
known by everybody in the plant."
46 See preceding footnote.
47 From examination of Respondent's Exhibit 15, which, inter aka,
lists the relevant pay rates of all the "older" employees not affected by
the 1964 layoffs, (about half of the unit in January 1965), it appears
that a few employees, who were still in the same classification as they
had been before the June 1964 pay cut, had by January 1, 1965, in
fact, been fully restored to their former rate . However, as to the bulk of
such of these employees as were on that date still in the same
classification as before the cut the exhibit shows that not more than
half of the loss in pay rate had been restored , and as to some,
particularly those in the higher brackets, there had been no restoration
at all Thus, Ohmer, who had in June 1964, suffered a cut from $2.90
to $2.50, was still receiving $ 2.50 on January 1, 1965
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as meaning that the wage cuts had not been fully restored
(which was true). Even if one accepts this view, it is difficult to
see how the employees could have been misled as to the extent
to which their former pay had been restored, since we are
dealing here with employee wage rates, which, according to
McGraw's own testimony, were a matter of instant, common
knowledge among the employees 48 In any case, the more
likely construction of the Union's charge is that management
had not fulfilled such promise as it had made regarding
restoration of the wage cuts. Unfortunately, there is no
evidence as to what that promise was other than the
self-serving, hearsay evidence of the statement in McGraw's
speech that the promise was to restore the wage cuts "as fast as
we can." Even if it be assumed that that was all that
management promised, the Union's charge amounted merely
to an expression of opinion that Respondent had not restored
the wage cuts as expeditiously as it could have done. Clearly,
such an expression of opinion was susceptible of evaluation by
the voters.
As to (2), above, Respondent assumes that the employees
would construe the charge regarding the decline in the wage
"pattern" as referring to its "basic pay policy" and not to the
actual level of wages, which admittedly had, in fact, declined
during the preceding year.49 Since it was natural for the
employees to be more concerned about their actual take-home
pay then about such a nebulous concept as Respondent's pay
policy, it seems more realistic to assume that they regarded the
handbill as referring to the actual pay level. Moreover, it is not
clear from McGraw's testimony what he meant when he said
that Respondent's basic pay policy had not changed since
1963, citing the fact that there had been no change in the
"basic" job rates and hiring "methods." Even if this is
construed as meaning that there had been no change in starting
rates, Respondent's records do not confirm this entirely. Thus,
Respondent's Exhibit 15, prepared from such records, shows
that, while employees had previously been hired for the job of
"S M 2/C" at rates ranging from $2 to $2.50 an hour, the
hiring rate for that classification in the fall of 1964 was only
$1.85 an hour. Moreover, it appears from such records that as
a result of the June 1964 pay cut, the wage rates of at least
seven employees50 were reduced below their hiring rate It is
not clear, therefore, what significance to attach to McGraw's
testimony about an unaltered "basic" rate. Moreover, while
admitting that Respondent's merit review program, which had
formed the basis of all merit increases, was suspended in the
spring of 1964, McGraw failed to explain why he did not
regard this as a change in "basic pay policy" adverse to the
employees
Accordingly, whatever view one takes of the matter, the
Union's charge regarding Respondent's wage pattern has not
been shown to be false, and, indeed, appears to be amply
warranted by the facts. Moreover, even if it were thought to be
in some way misleading , such charge concerning the em-
48 For reasons indicated above, I give no weight to McGraw's
"assumption" that such knowledge did not extend to those 30 odd
employees hired since June 1964.
49 There was no evidence as to how the level of wages in January
1965, compared with that in effect on the other dates mentioned in the
handbill Even apart from the Court of Appeals ' statement as to
Respondent 's burden of proof , it would seem that it was incumbent on
Respondent to come forward with some evidence on that score In any
case , McGraw had adequate opportunity to point out in his speech any
inaccuracy in that respect to the Union's charge, but failed to do so.
ployees' own wage rates would be susceptible of evaluation by
them for reasons already stated.
c. The union meeting
Respondent adduced evidence concerning an alleged misrep-
resentation at a Union meeting, with regard to Respondent's
profits Employee Haught testified that at a Union meeting on
January 19, 1965, attended by 40 to 50 employees, and
presided over by Union Agent Reid, one of those in attend-
ance, Colleja, announced to all those present that, according
to a newspaper item, Respondent had "cleared" $160,000, and
that he thought the employees were "entitled to some of it",
that the witness asked Colleja what paper he was referring to,
remarking that he had not seen the item in question, and that
Reid at this point announced free beer and invited the
employees to partake. Reid confirmed that Haught was at the
meeting, but disclaimed any knowledge of Colleja's attend-
ance, and denied that any employee at the meeting had made
the remark attributed to Colleja by Haught Reid did acknowl-
edge that at a Union meeting, the date of which he could not
recall, an employee remarked that he understood that Re-
spondent had obtained a new contract and asked how the
employees could get a "better shake" from Respondent.
According to Reid, he answered that the only road to better
conditions was through negotiations.
The record shows that on December 25, 1964, there was
published in a local paper a report that during a recent week
Respondent had received an order in the value of $160,000.
While it appears from the evidence that any statement that
Respondent had earned $160,000 in profits at any time in
1964 would have been a gross misstatement, there was no
evidence that the foregoing reference to new business in the
amount of $160,000 was false. Thus, if one is to credit Reid,
there is no basis for finding any misrepresentation by an
employee at a Union meeting. On the other hand, if one is to
credit Haught, there was such a misrepresentation. Haught's
credibility was seriously impaired by the fact that, when
confronted with a pretrial affidavit purporting to be signed by
him, and containing a denial that he ever attended any Union
meeting, he acknowledged that the signature was his but
vehemently denied that he had ever before seen the affidavit,
which was notarized by a Board agent. Under all the
circumstances, I deem incredible such denial, which implies
that a Board agent tricked the witness into signing a blank
sheet of paper, and then inserted the contents of the affidavit
without his knowledge or consent. While, in view of Reid's
corroboration of Haught on this point, I credit his testimony
that he attended the Union meeting of January 19, the fact
that he would swear to the contrary in his affidavit and that he
would at the hearing repudiate the affidavit in such a bizarre
and implausible manner precludes giving any credit to his
testimony, where it is contradicted by other testimony not
subject to any comparable infirmities.' i In view of this, as
50 Schwarm, Tomaleski, Boyle, Lovely, Rupert, Schimansky, and
Staves
Si There is no need to speculate as to the reason for Haught 's various
self-contradictions. However , from the fact that the affidavit contains a
denial that Haught made any statement about Respondent 's profits at a
Union meeting , it is inferred that his concern at the time of making the
affidavit was to exonerate himself of the charge that he had played the
role which, subsequently , at the hearing he attributed to Colleja. and
Haught 's denial of attendance at any Union meeting was incidental to
this self-exculpatory purpose
ORTRONIX, INC 395
well as demeanor, I credit Reid's denial that any employee at a
Union meeting made the remark attributed by Haught to
Colleja 52
In view of all the foregoing considerations, and since, as
already stated, it is clear that none of the alleged, or actual,
misrepresentations discussed above related to matters within
the peculiar knowledge of the Union, it is concluded that there
is no merit in the fourth oblectlon.53
As no merit has been found in any of Respondent's
objections, it is concluded that the Union did not unduly
interfere with freedom of choice in the second election, that
its certification on the basis of such election was valid, and
that Respondent's refusal on and after May 28, 1965, to
recognize, or bargain with, the Union violated Section 8(a)(5)
and (1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth m section III,
above, occurring in connection with its operations described in
section 1, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof
V THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(5) and (1) of the Act, I
shall recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of
the Act. It has been found that the Respondent has refused
and still refuses to bargain collectively with the Union as the
exclusive representative of the employees in the appropriate
unit described below. It will therefore be recommended that
the Respondent bargain collectively upon request with the
Union as the exclusive representative of these employees and,
if an understanding is reached, embody such understanding in
a signed agreement.
CONCLUSIONS OF LAW
1. Ortronix, Inc., is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2. Sheet Metal Workers' International Association, AFL-
CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. All production and maintenance employees employed by
Ortronix, Inc., at its Orlando, Florida, plant, including sheet
metal assemblers, sheet metal assemblers senior, carpenters,
welders, machine operatois, sheet metal mechanics, machinists,
painters, jig and fixture mechanics, electrical assemblers,
wiremen, material handlers, test technicians, maintenance
technicians, stock clerks, shipping and receiving clerks, ware-
housemen, drivers, inspectors and timekeeper, excluding all
other employees, including office clerical employees, profes-
sional employees (including engineers), technical employees
(including electronic technicians and draftsmen) and super-
visors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. On May 17, 1965, and at all times thereafter, the Union
was and now is the representative of a majority of the
Respondent's employees in the appropriate unit described
above for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on May 28, 1965, and thereafter to bargain
collectively with the Union as the exclusive representative of
all its employees in the above-described appropriate unit, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (5) and (1) of the
Act.
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
proceeding, I recommend that Ortronix, Inc., Orlando,
Florida, its officers, agents, successors, and assigns, shall be
required to.
1. Cease and desist from refusing to bargain collectively
with Sheet Metal Workers' International Association, AFL-
CIO, as the exclusive representative of all its employees in the
appropriate unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment.
2. Take the following affirmative action, which it is found
will effectuate the policies of the Act:
(a) On request, bargain collectively with Sheet Metal
Workers' International Association, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit and
embody any understanding reached in a signed contract.
(b) Post at its place of business in Orlando, Florida, the
notice attached hereto and marked "Appendix."54 Copies of
said notice, to be furnished by the Regional Director for
Region 12, shall, after being duly signed by an authorized
representative of the Respondent, be posted by it immediately
upon receipt thereof and maintained by it for a period of 60
consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material
52 In any case, even if one were to credit Haught's version, it is not
clear how the Union could be held responsible for a remark made at a
Union meeting by one in attendance , which merely purported to report
a news item Respondent seems to contend that, by not disclaiming
responsibility for the remark, even though not made by an agent or
apparent agent of the Union, it impliedly adopted or ratified the
remark. No authority for such a proposition is cited and I am aware of
none. See Cornveau & Routhier Cement Block, Inc., 171 NLRB No.
113
53 Respondent 's fifth objection alleges-
That the Petitioner [ Union] through promise of benefit and through
action threatened , coerced and restrained the employees of the
Employer by statements and conduct and thereby prevented the
employees from exercising their free and untrammeled choice in the
election.
At the hearing , Respondent stated that it would offer no evidence
with regard to this objection , and, absent such evidence , there is no
basis for sustaining this objection
54 If this Recommended Order is adopted by the Board, the words
"a Decision and Order " shall be substituted for the words "Recom-
mended Order of a Trial Examiner " in the notice In the further event
that the Board 's Order is enforced by a decree of a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals
enforcing an order" shalt be substituted for the words "a Decision and
Order."
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 12, in writing,
within 20 days from the receipt of this Decision, what steps it
has taken to comply therewith.55
55 In the event that are adopted by the Board , this provision shall be
modified to read "Notify the Regional Director for Region 12, in
writing, within 10 days from the date of receipt of this Order what steps
the Company has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of
the National Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as amended
we hereby notify our employees that:
WE WILL bargain collectively upon request with Sheet
Metal Workers' International Association, AFL-CIO, as the
exclusive bargaining representative of all our employees in
the appropriate unit described below with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment and if an agreement is reached,
embody such understanding in a signed contract. The
appropriate unit is.
All production and maintenance employees at our
Orlando, Florida, plant, including sheet metal assem-
blers, sheet metal assemblers senior, carpenters, welders,
machine operators, sheet metal mechanics, machinists,
painters, jig and fixture mechanics, electrical assemblers,
wiremen, material handlers, test technicians, mainte-
nance technicians, stock clerks, shipping and receiving
clerks, warehousemen, drivers, inspectors and time-
keepers; excluding, all other employees, including office
clerical employees, professional employees (including
engineers), technical employees (including electronic
technicians and draftsmen) and supervisors as defined in
the Act.
ORTRONIX, INC.
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate directly
with the Board 's Regional Office, Room 706, Federal Office
Bldg., 500 Zack Street, Tampa, Florida 33602, Telephone
228-7711,Ext 257.