Polyflex M Company

National Labor Relations Board - Board Decisions

Mar 23, 1982

260 N.L.R.B. 1146 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Polyflex M Company and United Paperworkers In-
ternational Union, AFL-CIO-CLC. Case 15-
CA-7103
March 23, 1982
ORDER DENYING MOTION FOR
RECONSIDERATION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 30, 1981, a three-member panel of
the National Labor Relations Board issued a Sup-
plemental Decision and Order in the above-entitled
proceeding,' adopting the Administrative Law
Judge's recommendation to overrule Respondent's
objection to an election. Agreeing with the Admin-
istrative Law Judge that the Union had not made
statements in the course of the election campaign
in violation of N.L.R.B. v. Savair Manufacturing
Co.,2 the Board adopted the Administrative Law
Judge's recommendation to affirm its earlier
Order,3 which, inter alia, had ordered Respondent
to bargain, upon request, with the Union. On Octo-
ber 19, 1981, Respondent filed a motion for recon-
sideration of that Supplemental Decision.
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.
For the following reasons, we deny the motion
for reconsideration and reaffirm our earlier finding
that Respondent's refusal to bargain with the
Union violates Section 8(a)(5) and (1) of the Act.
As background to our decision it is necessary to
chronicle at some length the history of this pro-
ceeding. In August 1978, the Charging Party
Union won a representation election at Respond-
ent's Summit, Mississippi, facility. Thereafter, Re-
spondent filed objections to the election alleging,
inter alia, that the Union had engaged in impermis-
sible campaign statements in violation of Savair,
supra. In that regard, according to the Regional
Director, Respondent relied on a leaflet distributed
by the Union during the campaign which stated
that "There will not be any intiation [sic] fee or
any other fee to join the union." Respondent also
relied on an affidavit of an employee detailing cer-
tain comments allegedly made by Union Repre-
sentative Herman Merritt at the first employee
meeting held by the Union in May 1978. The Re-
gional Director concluded, however, that Respond-
ent had presented no evidence to warrant finding
that the Union had conditioned a waiver of initi-
'258 NLRB 806.
'414 U.S. 270 (1973).
' 240 NLRB 1153 (1979).
260 NLRB No. 150
ation fees on employees' signing cards or support-
ing the Union. Accordingly, he overruled the ob-
jection and certified the Union. Respondent there-
after requested review of that decision. In its re-
quest for review, it confined itself only to events at
the first union meeting in May 27, 1978, and
argued that the employee affidavit, referred to
above, was susceptible to an interpretation that
Merritt, in fact, had made objectionable statements
at that meeting. It argued that the affidavit raised
substantial and material issues warranting a hearing.
The Board, however, denied the request for
review.
Subsequently, Respondent refused to bargain
with the Union and, upon a complaint and a
Motion for Summary Judgment filed by the Gener-
al Counsel, the Board, in March 1979, found that
Respondent's continuing refusal to bargain with the
Union violated Section 8(a)(5) and (1) of the Act,
and ordered it to bargain with the Union. 4 Thereaf-
ter, the Board sought enforcement of its Order. In
July 1980, the Fifth Circuit Court of Appeals
denied enforcement and instead remanded the case
for an evidentiary hearing on Respondent's Savair
objection.5 As evidence supporting Respondent's
objection, the court made reference only to the em-
ployee affidavit discussed above which, as noted,
described events only at the May 27, 1978, meet-
ing. The court found the statements in the affidavit
susceptible to varying interpretations which indi-
cated that Merritt might have made improper
Savair statements. The court stated that:
Because isolated statements violative of the
Savair rule can be neutralized by explanation
or clarification by the Union, Rounsaville of
Tampa, Inc., 224 NLRB 455 (1976), it is at
least possible that the quoted portions of the
affidavit are accurate and yet no Savair viola-
tion occurred. On the other hand, the opposite
conclusion is also possible.6
In these circumstances, the court deemed a hearing
necessary on the Savair objection to "determine
what statements were made and what objective in-
terpretation is warranted by the statements when
taken as a whole."
The hearing mandated by the court was held
before Administrative Law Judge J. Pargen Rob-
ertson in March 1981 and the Administrative Law
Judge issued his Decision in April 1981. He recom-
mended that Respondent's Savair objection be
overruled and that the Board reaffirm its earlier
finding that Respondent's refusal to bargain was
' See fn. 3, supra.
'622 F.2d 128.
6622 F.2d at 131.
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POLYFLEX M COMPANY
violative of the Act. In so doing, he analyzed the
testimony of the three witnesses concerning the
comments made by Union Representative Merritt
at the May 27 meeting. The Administrative Law
Judge credited the testimony of employee Ella
Brown over that of Merritt and employee Willie
Tobias and found that Brown's testimony indicated
that Merritt had made no Savair proscribed state-
ments at the May 27 meeting.' Based on his analy-
sis of Merritt's statements on May 27, as well as the
Union's election week leaflet,8 the Administrative
Law Judge concluded that the Savair rule was not
violated in the Union's election campaign. Upon
exception to this Decision, the Board, on Septem-
ber 30, 1981, issued its Supplemental Decision and
Order9 in which it adopted the Administrative Law
Judge's conclusion and reaffirmed its earlier deci-
sion finding that Respondent's refusal to bargain
was in violation of Section 8(a)(5) and (1) of the
Act.
Thereafter, Respondent filed the instant motion
for reconsideration. It now claims that, based on
the testimony of Willie Tobias, described below,
the Board should find that Merritt engaged in im-
permissible Savair statements. Specifically, it notes
that Ella Brown, whom the Administrative Law
Judge credited, gave testimony only about Mer-
ritt's comments at the May 27 meeting. Respondent
now argues that there were other meetings con-
ducted by Merritt that Brown did not attend.
However, it asserts that Tobias did attend these
other meetings and that his testimony concerning
what Merritt said at the other meetings, which it
alleges was uncontradicted, demonstrates that Mer-
ritt made impermissible statements at these later
meetings which warrant setting aside the election.
We reject Respondent's assertions. First, we are
not satisfied that Tobias' testimony is uncontradict-
ed. Thus, we note that Union Representative Mer-
ritt's testimony, at the least, indicates that at an-
other meeting subsequent to the May 27 meeting
he may have again discussed the Union's initiation
fee policy. Hence, there are two accounts in the
record of what Merritt said at later meetings and
we are not at liberty to choose one account over
the other. Second, and contrary to Respondent, we
do not think it can be said that the Administrative
Law Judge credited Tobias' account of those later
meetings over Merritt's account. The Administra-
tive Law Judge's credibility findings speak only,
and precisely, of the comments Merritt allegedly
' We note that it was Brown's affidavit that Respondent had relied on
in the earlier representation proceeding in arguing that Merritt had, in
fact, made objectionable statements at the May 27 meeting
This leaflet was the document referred to above by the Regional Di-
rector in his onginal decision on the objections
9 See fn. 1, supra.
made at the May 27 meeting, and indeed his Deci-
sion makes no reference to subsequent meetings.
However, we think that the need for a remand to
the Administrative Law Judge for further credibil-
ity resolutions concerning Merritt's comments at
subsequent meetings is unnecessary. We so con-
clude because we find, assuming arguendo that
Tobias' testimony establishes that Merritt made any
arguably ambiguous Savair statements at employee
meetings after the May 27 meeting, the Union's
clearly permissible initiation fee policy was ade-
quately explained to the unit employees by the leaf-
let that the Union mailed to the employees shortly
before the election. That leaflet, sent by Merritt to
all the unit employees in the week prior to the
election, clearly and unequivocally stated, "There
will not be any intiation [sic] fee or any other fee
to join the union." As the Board has noted, "even
though statements made during the course of an
election campaign may have been violative of the
Savair standards, if viewed in isolation, such state-
ments will not cause the election to be set aside
where all of the circumstances indicate that the
employees were unambiguously informed that the
initiation fees were waived in a manner consistent
with Savair." '° We think such a situation exists
here. We have already affirmed a finding that there
were no impermissible statements made by Merritt
at the May 27 meeting. Assuming arguendo that
Tobias' testimony about subsequent meetings indi-
cates that Merritt made ambiguous statements
thereafter," we are satisfied that any ambiguous
statements were sufficiently clarified. As the circuit
court noted in its earlier order of remand, "isolated
statements violative of the Savair rule can be neu-
tralized by explanation or clarification by the
Union." We conclude that that is the situation here
and we reaffirm our earlier Order that Respondent
0' Firestone Steel Products Company, a Division of Firestone Tire and
Rubber Company, 235 NLRB 548. 550 (1978).
" Tobias' testimony itself is not clear on that point Respondent relies
on that portion of Tobias' testimony in which he indicated that "as best
[he couldl remember," Merritt told the employees that dues were waived
until the local was "organized and chartered, and that the local would
he organized "once the union was voted in and everything" Hence. Re-
spondent argues that a "reasonable interpretation" of this statement was
that an employee had to join the Union before the election to avoid the
initiation fee At an earlier part of his testimony. however. Tobias indicat-
ed that Merritt had not said that only those employees who joined the
Union before the election would not have to pay the initiation fee In our
earlier Supplemental Decision (see 258 NLRB 806 at fn 5), we indicated
that, contrary to the Administrative Las Judge's finding, Tobias had
given testimony reflecting that Merritt had tied initiation fees to the
Union's victory in the election. We were not there, however. making a
credibility finding but simply stating the fact that a portion of Tobias' tes-
timolny did reflect that such a statement was made. A portion of that tes-
timony. as noted. reflects the opposite, also
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with the Union, and we deny Respondent's
motion for reconsideration of that Order. 2
'' We are aware that the leaflet we are relying on to find that the
Union sufficiently clarified any ambiguous Savair statement is the same
leaflet referred to by the Regional Director in his original decision in the
underlying representation proceeding. However, while the Regional Di-
rector appeared to have relied on that document to find that the Union,
in fact, had made no impermissible Savair statements, in the face of an
employee affidavit to the contrary, we rely on the document only as a
sufficient clarification of any possible earlier ambiguous statement con-
cerning Savair
We have fully considered the merits of Respondent's claim that Tobias'
testimony establishes that Merritt made impermissible Savair statements,
in spite of the fact that throughout this proceeding Respondent relied
only on the affidavit of Ella Brown in urging that the election be set
aside. In this regard, we again reject as lacking in merit Respondent's ar-
gument that the Board denied it due process by considering its objection
in the context of an unfair labor practice proceeding. See 258 NLRB 806,
supra, at fn. 4, and cases cited therein
1148