Allied Metal Hose Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 14, 1975219 N.L.R.B. 1135 (N.L.R.B. 1975) Copy Citation ALLIED METAL HOSE COMPANY, INC. 1135 Allied Metal Hose Company , Inc. and District No. 15, International Association of Machinists and Aero- space Workers, AFL-CIO. Case 29-CA-3498 August 14, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 30, 1974, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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 Decision in light of the exceptions and brief and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt her recommended Order. We agree with the Administrative Law.Judge that Respondent violated Section 8(a)(5) ands (1) of the Act by admittedly refusing to bargain with the Union which had been certified by the Board as the exclusive bargaining representative of an appropriate unit of Respondent's employees following a consent election conducted under the direction of the Re- gional Director for Region 29. The Administrative Law Judge properly rejected Respondent's conten- tion that the election underlying the Union's certifi- cation must be set aside because of the Union's al- leged improper offers to waive initiation fees. She found, instead, that any offers of waiver attributable to the Union were not objectionable under the stan- dards set forth in Savair.2 In addition, she found that certain statements made by employees Ramirez, Leon Hourruitiner , and Baerga to their fellow work- ers to the effect that those who signed a union au- thorization card now and/or voted for the Union would not have to pay an initiation fee, were not objectionable under the Savair standards because (1) they were made before the petition was filed and (2) none of the employees making such statements was 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). shown to have been acting as the Union's agent. Ad- ditionally, the Administrative Law Judge found that the rumors circulated by certain employees at Respondent's plant about the subject of initiation fees did not amount to the kind of third-party con- duct that would warrant setting aside the election. 1. As to the single statement that was attributable to the Union, we agree with the Administrative Law Judge that employee Monaco's remark to employee Brito, in the presence of Union Agent Fisher that, "if we join the union . . . we don't have to pay any initiation fee" did not transgress the specific man- dates of Savair. In our view, Monaco's statement did not in any way imply that the waiver of initiation fees was limited to those employees who joined the Union before the election nor was it conditioned upon the employees' voting for the Union. As the so-called waiver here is open-ended, the instant case is easily distinguishable from those Board decisions in which a union's waiver offers were found to have created an ambiguity as to when an employee would have to join the union in order to avoid paying initia- tion fees? 2. With respect to prepetition offers to waive initi- ation fees, the Board has recently modified its long- standing Ideal Electric rule 4 to hold that an improper offer to waive initiation fees, whether made before or after the petition is filed, constitutes grounds for set- ting aside an election 5 Accordingly, the credited pre- petition statements of Ramirez and the other named employees are relevant and have been considered. Nevertheless, we agree with the Administrative Law Judge's conclusion that neither Ramirez nor any of the other employees making statements regarding waiver of initiation fees was shown to have been act- ing as a union agent and that, therefore, their state- ments cannot be attributed to the Union. For this reason, we find it unnecessary to decide whether the credited statements of these employees, if uttered by a union agent, would have violated the ground rules set forth in Savair. 3. We also agree with the Administrative Law Judge's conclusion that the conduct of Respondent's employees during the preelection period did not ren- der a free and rational employee choice impossible. In so doing, we recognize that, under certain circum- stances, an election may be invalidated because the conduct of third parties, such as the employees them- selves, has interfered with the statutory right of em- ployees to participate in a free and uninhibited elec- 3 Inland Shoe Manufacturing Co., Inc., 211 NLRB 724 (1974); see also The Coleman Company Inc., 212 NLRB 927 (1974). 4 The Ideal Electric and Manufacturing Company, 134 NLRB 1275 (1961). 3 Gibson's Discount Center, a Division of Scrivner-Boogaart, Inc., 214 NLRB No. 22 (1974). This decision issued after the Administrative Law Judge herein had issued her Decision. 219 NLRB No. 181 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion .6 However, we do not read Savair to require either the Board or the parties to police the preelec- tion conduct of third parties with the same vigilance and rigor that they are required to exercise in polic- ing their own conduct . Under the circumstances of this case, we are satisfied that the statements circulat- ed by various employees about the Union's waiver of initiation fees did not rise to the level of impropriety that the Board has previously relied on in setting aside elections because of third-party conduct. In this respect , we fully agree with the Administrative Law Judge that such rumors and misinformation as might have existed did not create an atmosphere of fear, coercion , and confusion among Respondent's employees which could reasonably have interfered with the employees ' free choice . Nor do we find con- vincing reasons to hold the Union culpable and/or responsible for such rumors or misinformation espe- cially where , as here , the circulating statements in- correctly reflected the Union 's initiation fee policy and the employees made no attempts to ascertain the truthfulness of such rumors. Accordingly, we adopt the Administrative Law Judge 's conclusion that the conduct of third parties (i.e., the employees them- selves) does not provide grounds for invalidating the election. ORDER on August 1, 1973, and a complaint issued on August 14, 1973, presents the question of whether Respondent's ad- mitted refusal to honor the Charging Party's June 29, 1973, certification violated Section 8(a)(5) and (1) of the Nation- al Labor Relations Act, as amended (the Act), notwith- standing Respondent's contention that the election under- lying the certification was invalidated by alleged preelection statements regarding the Union's initiation fees. Upon the entire record, including my observation of the witnesses ,2 and after due consideration of the brief filed by Respondent , I make the following: FINDINGS OF FACT 1. THE NATURE OF RESPONDENT'S BUSINESS AND THE CHARGING PARTY'S STATUS AS A LABOR ORGANIZATION Respondent is a New York corporation which manufac- tures metal hoses and related products at two places of business in Long Island City, New York. During the year preceding the issuance of the complaint, a representative period , Respondent shipped products valued in excess of $50,000 to States other than New York. I find that, as Re- spondent concedes , it is engaged in commerce within the meaning of the Act, and that exercise of jurisdiction over its operations will effectuate the policies of the Act. District No. 15, International Association of Machinists and Aerospace Workers, AFL-CIO (the Charging Party, herein called the Union), is a labor organization within the meaning of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent , Allied Metal Hose Com- pany, Inc., Long Island City, New York, its officers, agents, successors, and assigns , shall take the action set forth in the Administrative Law Judge's recom- mended Order. 6See P. D. Gwaltney, Jr. and Company, Inc, 74 NLRB 371 (1947); N.L.R.B. v. Staub Cleaners, Inc., and Ben Barnet Cleaners, Inc., 418 F.2d 1086 (C.A. 2, 1969), cert. denied 397 U.S. 1038 (1970); A . Werman & Sons, Inc., 106 NLRB 1215 (1953); Cross Baking Company, Inc., 191 NLRB 27 (1971), enforcement denied on other grounds 453 F .2d 1346 (C.A. I, 1971). DECISION STATEMENT OF THE CASE NANCY M. SHERMAN , Administrative Law Judge: This proceeding, heard by me at Brooklyn, New York , on June 20, 27 , and 28 and July 30, 1974,1 pursuant to a charge filed 1 On June 17, 1974, Administrative Law Judge Arthur Leff conducted a pretrial conference which the Charging Party, through error, failed to at- tend. On June 20, Bernard Williams , the Charging Party's representative. asked me for an adjournment on the ground , in substance , that the arrange- I1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Pursuant to an agreement for consent election executed on February 14, 1973, by Respondent and the Union, the ments made at the pretrial conference had caught him by surprise and left him unprepared to proceed . I adjourned the hearing until June 27. On that date , Respondent's counsel , who cannot speak Spanish , requested leave to use a tape recorder during the hearing in order to supplement his notes and assist in preparing further examination of Spanish -speaking witnesses who testified through an interpreter . Over Williams' objection, I granted Respondent's request , with the understanding that the device would be put out of the witnesses sight , that the hearing would not be interrupted be- cause of any difficulties Respondent might have with the tape recorder, that off-the-record discussions would not be taped , and that the tape would not be used to draw into question the accuracy of either the official transcript or the official translation . Milgo Industrial, Inc., 203 NLRB 1196 (1973). Be- cause of my action in permitting use of the tape recorder , Williams an- nounced that he would not participate in the proceedings , and physically left the hearing room . Although Williams physically returned to the hearing room a few minutes later and remained for a considerable period on that day, he did not participate therein, or attend the hearing on any day thereaf- ter. Further , although one or both of two of the Charging Party's business agents (Sidney Fisher and William Oram ) were physically present in the hearing room during much of the subsequent hearing , neither of them filed an appearance on the Charging Party's behalf. The other parties and I have sent Williams several letters advising him about when the hearing was to be continued and other matters. 2 Because of the circumstances described supra, fn. 1, the Union called no witnesses . For the purpose of creating a full record, counsel for the General Counsel cross-examined many of Respondent 's witnesses (some of whom had given pretrial affidavits to a Board agent) and called four witnesses of his own. ALLIED METAL HOSE COMPANY, INC. Regional Director for Region 29 conducted an election on March 7, 1973, in an admittedly appropriate unit of Respondent's employees described infra, Conclusions of Law 3. The tally showed that 15 ballots favored the Union, 9 were opposed , and 2 were challenged . Thereafter, Re- spondent timely filed objections and supplemental objec- tions to conduct affecting the results of the election. Re- spondent alleged , inter alia, "Union representatives told employees that if they voted for the Union they would not have to buy a Union book, and if they didn't vote for the Union they would have to pay an initiation fee." On June 29, 1973, following an administrative investiga- tion , the Regional Director overruled Respondent's objec- tions and certified the Union. On July 18, 1973, Respondent 's request for review of the Regional Director's action was denied by the Board on procedural grounds (infra, fn. 3). The complaint alleges and the answer admits that since about July 16, 1973, Respondent has failed and refused to grant the Union's request for recognition as the exclusive bargaining representative of the employees in the certified unit . On August 29, 1973, counsel for the General Counsel filed a motion for summary judgment, to which Respon- dent filed an opposition dated September 24, 1974. On December 17, 1973, the Supreme Court decided N.L. R.B. v. Savair Manufacturing Company, 414 U.S. 270, 1973. On January 11, 1974, Respondent filed a motion to remand for reconsideration, relying on, inter a/ia, the Supreme Court's Savair decision . On February 19, 1974, Respondent filed a supplemental motion to remand for reconsideration, attaching, inter a/ia, a copy of an employee affidavit, with the affiant 's name deleted , stating, "That before the elec- tion, when I was handed the union card, Rafael Ramirez, Oscar Hourruitiner and Gabby Leon told me that the union men had said if I signed the card I would not have to pay for the book." On April 17, 1974, the Board issued an Order Denying Motion for Summary Judgment and Di- recting Hearing . The Order stated , inter alia: The Board . . . is of the opinion that , in light of the Supreme Court's [SavairJ decision . the issue raised by the Respondent with respect thereto can best be resolved by hearing. Accordingly, IT IS FURTHER ORDERED that a hearing be held before an Administrative Law Judge . . . for the purpose of taking evidence to resolve said issue ... . Before calling the first witness, Respondent's counsel moved to dismiss the complaint on the ground, in sub- stance, that the Board 's action in remanding the case for a hearing established that the Board believed that the Re- gional Director should have held such a hearing before certifying the Union; that, therefore , the complaint was premature; and that the "hearing directed by the Board on remand should be had in this Region in the nature of a hearing on objections where an agent of the Regional Di- rector will hear the matter as a Hearing Officer." I hereby adhere to my hearing denial of this motion? 1137 B. The Evidence Regarding The Alleged Objectionable Conduct 1. Introduction The nonemployee organizers who conducted the Union campaign at Respondent 's plant were Union Business Rep- resentatives Fisher and Oram . Each of them had for sever- al years been a professional union organizer, a job for which a good memory for names and faces is a valuable if not essential asset . For this reason , and on the basis of their demeanor, I believe that they had a better recollection of material matters , and engaged in more conversations with Respondent's employees , than Fisher and Oram were will- ing to admit, and hereafter describe certain respects in which I disbelieve their testimony about the extent of such activity . However , my evaluation of their testimony is tem- pered by the evidence that Respondent operates a compar- atively small plant to which Fisher and Oram paid a limit- ed number of visits , that neither of them (so far as the record shows) ever entered the plant itself, that practically all Respondent's employees are Spanish-speaking whereas Fisher speaks no Spanish and Oram very little , that the events herein occurred up to 18 months before they testi- fied, that their principal contacts with the employees ceased about 15 months before they testified, and that they have a number of organized shops to service , as well as the duty to conduct other organizing campaigns. Fisher and Oram first came to Respondent's plant in mid-January 1973. A week after the March 7, 1973, elec- tion, a number of employees met at a nearby bar with Fisher, Oram , and an interpreter . It appears that all those present had signed union authorization cards prior to the election.4 All the witnesses who testified about this meeting agreed that Fisher there discussed the subject of initiation fees , but no two employee witnesses gave materially the same testimony about what he said . While I have reserva- tions about Fisher's and Oram 's respect for the truth, their demeanor in testifying about this meeting lead me to credit them as to this issue . Accordingly, I find that on this occa- sion Fisher said that all those who presently were in the plant would come in at an initiation fee which was the equivalent of 1 month 's dues , and that any employees who came into the plant after the negotiation of a contract would be subject to the regular initiation fee.5 Fisher credi- 3 N.L.R.B. v. Commercial Letter, Inc., 496 F.2d 35, 38 (C.A. 8. 1974); International Union of Electrical Radio and Machine Workers [Liberty Coach] v. N.L.R.B. , 418 F.2d 1191, 1196, fn. 14 (C.A.D.C., 1969). 1 note that, before the charge herein was filed, Respondent 's request for review of the Regional Director's action was denied by the Board on the basis of the finality afforded his action by certain provisions in the consent election agreement and by the Board's Rules and Regulations applicable to such agreements citing, inter alia, Buffalo Arms, Inc v. N.L.R.B., 224 F.2d 105, 109-110 (C.A. 2). As previously noted, the Supreme Court's opinion, which resolved an apparent circuit conflict noted in Respondent's petition for re- view, issued after the filing of the complaint herein. 4 However, employee Jose Rodriguez , who apparently opposed the Union , was invited to attend by his friends from work . He did not go. s Employee John Montgomery , the only employee witness whose native language was English testified that Fisher said that the dues would be $8.50 a month ; that "if we all went in as a group , there would be no initiation fee"; and that employees who failed to join within 30 days "After the union Continued 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bly testified that the Union's bylaws permit reducing the regular initiation fee for organizational purposes , that the Union's regular initiation fee is $50, and that its monthly dues are $8 .50. Oram credibly testified that the authoriza- tion card circulated by the Union does not constitute an application for membership, that the Union uses a differ- ent form for such applications , and that "Up until the pres- ent time none of the employees of Allied Metal Hose are members of our organization ." However, there is no sub- stantial evidence that the Union ever described this distinc- tion to Respondent's employees , or that they knew about this difference from any other source .6 2. Alleged conduct by or in the presence of Union Business Representative Fisher a. Credited testimony for Respondent Former employee Brito credibly testified without contra- diction that, prior to the election, he came by a group near the plant consisting of Union Business Agent Fisher and employees Monaco and Garcia; and that, as Brito came within 2 or 3 feet of Fisher, Monaco turned to Brito and said in English that "the union has many benefits and if we join the union , we will get the union pension and we don't have to pay any initiation fee." Fisher said nothing.8 Em- ployees Jose Rodriguez credibly testified that in mid-Feb- ruary he heard a group of employees , including Monaco, "saying that whoever didn't vote for the union would have to pay for the book," worth about $60 or $70." The record was certified and was in the shop" would have to pay $65 to join. Montgomery's pre-hearing affidavit failed to refer to the 30-day grace peri- od, but merely said, "Fisher told us that since we were coming in as a group, there would be no initiation fees ." Employee Gabriel Leon testified that Fisher said that , I month after "the Union entered," initiation fees had to be paid. Former employee Angel Bnto testified that Fisher said , "We have to join the Union because those persons who join the Union won't have to pay any . . . initiation fee but the person who doesn 't join the Union will have to pay the $60.00 fee. The person who doesn 't want to pay the $60 .00 initia- tion fee , will have to get out from the factory "; and that Fisher did not say when the employees would have to join . Former employee Carlos Baerga testified that Fisher said, "those who join together will not have to pay for initiation, for the book," and that an employee who did not join "has to pay the book, which is $60 .00, or get out." However , Baerga stated in his pre- hearing affidavit , "Fisher said that because we were all coming in as a group, there would be no initiation fee for us though an employee who is employed by the company later and who joined the Union later would have to pay the initiation fee of $50.00." Employee Sergio Robert testified on direct examination that, on this occasion , initiation fees were not discussed at all. On cross-examination , he testified that initiation fees were in fact discussed, "but we never talk about if you didn 't join now you have to pay." 6 Former employee Baerga testified that after the election , he told em- ployees Fuste and "Mr . Rodriguez," among others , "see, now it cost you money to get in or you have to join , you know ." Neither Fuste nor employee Jose Rodriguez (infra, fn.9), both called as witnesses by Respondent, was asked about this alleged conversation . In view of this absence of corrobora- tion, the inconsistency between these alleged remarks and both of Baerga's versions of Fisher's remarks (supra , fn. 5), and Baerga's demeanor, I do not credit his testimony in this respect. 7 I am satisfied that this incident occurred prior to the March 7 election. Brito initially testified that it occurred in February , then testified that it occurred a couple of days after the election, and then that it occurred a few days after another alleged incident , involving Fisher , which occurred in late January or early February. s Monaco and Garcia did not testify. Garcia retired at an undisclosed time prior to the hearing. Fisher was not asked about this conversation. fails to show whether this conversation occurred before or after Monaco's exchange with Brito. b. Discredited testimony for Respondent On direct examination , former employee Baerga testified for Respondent that in late January 1973 Union Repre- sentative Fisher told a group of employees , including "Rudy Rodriguez," that the initiation fee was $60, but if the employees all joined together , they would not have to pay initiation fees .9 Baerga's direct testimony about this conversation is exceedingly confused about who said what, and at one point he acknowledged, "I got it all mixed up." However , he did testify at this point that he told Fisher that he did not need a card because he had already ob- tained one from Ramirez, signed it, and mailed it. He fur- ther testified that Employee Ramirez had told him that if Baerga signed it "now," he would not have to pay the initi- ation fee, "which will be $60, something like that." Howev- er, Baerga's prehearing affidavit states, in part, "I think Fisher gave me a card . Whoever it was, he said fill this out if you want , and if enough employees sign up , maybe we'll have an election . . . at no time did any Union representa- tive make any statements of any kind . . . about a Union book or its cost." Moreover, Baerga testified on cross-ex- amination that he did not recall whether Fisher said any- thing to him about an initiation fee when giving him the card . In addition, Baerga's prehearing affidavit states that the March 14 gathering at the bar "was the first time to my knowledge that any Union representative had said to the employees that the $50 initiation fee was waived." On the basis of Baerga's admitted confusion about this incident, the conflicts between his hearing testimony and his pre- hearing affidavit, and the witnesses ' demeanor, I discredit Baerga's testimony about Fisher's remarks on this occa- sion, and to this extent credit Fisher's testimony that prior to the election, he did not discuss initiation fees with any employee of Respondent. Baerga further testified on direct examination that in late January or early February Fisher told a group of em- ployees, including Leon, Montgomery, and Robert, about getting better benefits and more money , that the initiation fee was "something like" $60, and if "we all have to join together , we won't have to pay no initiation fee . . . . And those who don't join will have to pay." Inferentially as to this same gathering,10 employee Leon testified on direct examination as a witness called by counsel for the General Counsel that he did not hear Fisher say anything about initiation fees. On cross-examination , when asked what Fisher had said to the employees, Leon initially testified, "Well, I think the people have to pay around $60 or 55, I don't remember how much, if they don't join the union," and then conceded that he could not remember exactly what Fisher said about initiation fees, but stated that Leon knew for a fact that Fisher discussed initiation fees. Leon Employee Jose Rodriguez testified for Respondent , but was not asked about this conversation . The record fails to show whether "Rudy" and Jose are the same individual. ie Leon and Baerga gave consistent testimony regarding the date of this gathering, and testified that it was attended by them , Fisher , and employees Robert and Montgomery. ALLIED METAL HOSE COMPANY, INC. 1139 conceded that on this occasion Baerga told him in Spanish "That initiations had to be paid. People who didn't enter the union had to pay initiation." In view of the portions of Baerga's prehearing affidavit previously referred to, the vacillations in Leon's testimony about what Fisher said, the evidence (infra, fn. 25) that Baerga was following a practice of conscious misrepresentation about the initiation fee matter , Leon's limited knowledge of English (the lan- guage used by Fisher), and the witnesses ' demeanor, I do not believe Baerga's testimony about Fisher's remarks, and conclude that Leon was confusing them with Baerga's. Rather, and notwithstanding my reservations about Fisher's veracity and certain conflicts between Montgomery's 11 and Robert's 12 other testimony and their prehearing affidavits, I credit Montgomery' s and Robert's testimony that Fisher did not discuss initiation fees in their presence, 13 and to this extent credit Fisher's testimony that prior to the election he did not discuss initiation fees with any employee of Respondent. the General Counsel called Leon as a witness, but did not ask him about contacts with Oram on the morning of the election.14 While I have reservations about Oram's veracity general- ly, I credit him over Fuste with respect to this incident. I particularly rely on Respondent's failure to obtain testimo- ny directly corroborative of Fuste about this specific inci- dent from its witness Baerga, the only individual who, on Fuste's version , would have knowledge of all the relevant facts concerning the alleged message . Furthermore , Robert credibly denied gathering with Oram that morning;15 and Montgomery credibly testified that he did not join the group, but merely said a few words to Oram.16 Further- more, it seems to me unlikely that even in the context sug- gested by Fuste's testimony, Oram would have overstated the real $50 initiation fee by $10." 4. Alleged conduct by employees outside Fisher's and Oram's presence 3. Conduct alleged to have been apparently authorized by Union Business Representative Oram Employee Ramon Fuste , a witness called by Respon- dent, testified that after he entered the plant on the morn- ing of the election , several employees-including, inter alia, Robert, Leon, Montgomery , and Baerga-were standing just outside the half-open plant door about 15 feet from Fuste , having a conference in English with Union Business Agent Oram . Fuste , who cannot speak Englis# and testi- fied through an interpreter , went on to testify that Oram, who speaks only a "little bit" of Spanish , "made a sign" to Baerga and "point[ed] towards" Fuste , that "When the conversation was ending" Baerga called him , that the two approached each other , and that Baerga said in Spanish that Oram had just told him that if Fuste did not vote for the Union he would not have to pay $60 and if he did vote for the Union he would not have to pay anything. No other witness corroborated Fuste 's version of this incident. Oram testified that prior to the election he had no con- versation with any of Respondent 's employees about initia- tion fees , and there is no direct evidence otherwise. Oram further testified , without corroboration from any other wit- ness, that the discussion at the plant door involved the selection of a union observer . Oram testified that he could not remember the names of the employees who initially gathered with him at the door ; that one or more of them went into the plant and came out with the message that Leon would be the Union 's observer ; and that Leon there- upon came to the door to introduce himself . Counsel for 11 Namely, whether a union representative was present outside the plant within the week preceding the election , and whether the employees dis- cussed benefits and initiation fees among themselves prior to the election. See also supra, fn. 5, infra, In. 16. 12 Namely , whether employee Ramirez discussed initiation fees prior to the election . Moreover, Robert testified that both Oram and Fisher were present during the election , whereas the union representatives' work records and other credible testimony establishes that only Oram was present. See also supra, In. 5; infra, Sec. 11, B , 4, C, (2) (b). 13 English is Montgomery 's native tongue , and Robert (unlike Leon ) testi- fied entirely in English. a. Alleged conduct by the employees who claimed that they first got in touch with the Union (Ramirez, Hourruitiner, and Reyez) Union Representative Fisher credibly testified that it was a telephone call from an anonymous employee which first alerted the Union to the employees' possible interest in organization . Oram credibly testified that none of the employees "ever acknowledged the fact of who called." 14 The tally of ballots was signed by Oram as the Union's "authorized observer." However , this tally does not impeach Oram 's testimony , in view of his own ineligibility under Board practice to act as observer while the balloting was in progress . See National Labor Relations Board Field Manu- al, Secs. 11310 and 11340.9. 15 Indeed, Robert did not even see Oram at the door. I infer that Robert, as well as Fuste and others, entered the plant before Oram came to the door, which was not shown to be in view of the locker room or Robert's work station. - 16 At the heanng , Montgomery initially testified that he had no conversa- tion with Oram on this occasion. After being shown his affidavit stating that he did in fact say it few words to Oram , Montgomery testified that his affidavit (executed a month after the election) was truthful, but that he had no present recollection that this conversation had occurred. Because of his demeanor and the fact that the incident had occurred abou( 15 months before he testified, I do not think that the differences between his initial testimony and his affidavit reflect on his truthfulness generally , or in this specific connection . Similarly, I ascribe to mere failure of recollection Montgomery's testimony that he could not "recall" Montgomery's having literature in his hand , notwithstanding Oram's credible testimony that he was distributing leaflets that morning. 11 In the absence of direct testimony from Respondent's witness Baerga (or any other witness ) that on this occasion Oram made remarks about initiation fees, I believe Oram's evasiveness about Baerga 's presence on this occasion is insufficient to warrant an inference that Oram they mentioned this subject . However , Oram 's testimony as a whole does show that he was more aware than he was willing to concede of Baerga 's election activity. On cross-examination , Oram testified that he knew Carlos Baerga by sight "now that I've seen him today on the witness stand. I didn 't know his name before." When asked whether Baerga was present with him outside the plant with a group of employees prior to the election, Oram replied , "'I don't believe so . . . there was a couple [of employees ] there . I don't remember Mr. Baerga being there ." However, Oram stated in his preheating affidavit, about 5 weeks after the election and more than a year prior to the hearing, that "Carlos" was one of the employees outside the plant on the day of the election . After Respondent 's counsel drew Oram 's attention to this affidavit, Oram testified , "I don't recall right now , being so long ago , that if.he-was there or not. It's possible that he was .... The only time I knew that man's last name was today." 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Leon credibly testified that employees Rafael Ramirez, Oscar Hourruitiner , and Rafael Reyez told him that they first got in touch with the Union . Ramirez was discharged in January 1973 , and all of the conduct attribut- ed to him, Hourruitiner , and Reyez occurred before the Union filed its petition on January 31, 1973. Ramirez' rela- tionship to the Union is discussed infra, section II, C. Employee Robert credibly testified that in January 1973 Ramirez told several other employees that the employees would not have to pay an initiation fee because they would be joining as a group. Employee Leon , whose native language is Spanish, cred- ibly testified that , in January 1973, when giving Leon cards to distribute , Ramirez said in Spanish "to give the cards to the boys and then if they fill out the cards, then they don't have to pay the initiation ." 19 Employee Corretjer credibly testified that , in mid-January 1973, Ramirez told him that if he "signed the card for the union , [he] wouldn't have to pay $60 for the book . . . . That some agent of the union had told this to" Ramirez . Corretjer signed a card 2 or 3 days later and returned it to Ramirez . Former employee Brito credibly testified that in mid-January Ramirez gave him a card and said that he had "talked with the union and the union said that if [Brito ] sign the card, [he] could get so many benefits and [he] don 't have to pay any initiation fee." Brito signed a card that same evening and returned it to Ramirez on the following day. Employee Jose Rodri- guez credibly testified that in mid-January 1973 Ramirez "came over to me and spoke to me about the card , saying that a union delegate had given it to him and he told me to sign it as soon as possible and in that way I would save myself the initiation fee to enter the union." Ramirez said the initiation fee was about $50 or $60. Three or four days later, Rodriguez signed the card , according to him "in seeing that they were insisting that I sign the card and I was the only employee that was left without signing the card . I wasn't going to stand out for that reason and I didn't want to see myself obligated to pay the initiation fee." Rodriguez also credibly testified that prior to the elec- tion he "spoke personally with," inter alia, Ramirez and Reyez, and "all the employees who would get together in the morning before going into work," about the Union, including "about the fact that upon not voting , one would have to pay for the book ," but he did not specify what any individual employee said during these conversations. In mid-January 1973 , Ramirez gave a blank authorization card to employee Baerga and said , "Well, if you sign now, you will not have to pay initiation fee . . . I was informed it costs you $60.00 for initiation fee if you don't sign the card now ." Baerga took the card home , signed it, and mailed it. However , he did not regard Ramirez as a Union representative.19 13 Leon initially testified , in response to questions directly put to him in English , that Ramirez said to tell "the employees that if they did not sign a card they would have to pay" dues when the whole thing is over. The version set forth in the text was tendered in response to counsel 's questions translated into Spanish . I find the second version to be more accurate be- cause Leon can understand Spanish more easily than English and because of the probabilities of the situation. 19 The above findings as to Baerga represent a reconciliation of his testi- mony and his prehearing affidavit, which states that before the election no "Union representative" talked about initiation fees. Employee Fuste credibly testified that on January 19, employee Hourruitiner told him , "if you don 't sign [the union card] , you'll have to pay the initiation and if you sign it, you don't have to pay anything." It appears that Fuste never signed a card. b. Alleged conduct by employee who became the Union's election observer (Leon) Employee Leon credibly testified that prior to the elec- tion , on dates which he did not specify , he told four or five employees that if they joined the Union or signed cards for the Union they would not have to pay initiation fees 20 Employee Fuste credibly testified that about January 8 or 9, when he was out sick , Leon came to his home, tendered him a union authorization card , and said , "If you sign it, you don 't have to pay the initiation and if you don't sign it, you will have to pay it . . . Ramirez gave [the card] to me; the union man gave it to him so that he should have it arrive to you." 21 Still according to Fuste 's credible testimo- ny, he did not sign a card, but relayed a report of Leon's statements to three employees (identified only by their first names), who told him that "the same thing had been done to them," without identifying the people who had given them the cards. I conclude from credited portions of the testimony of employees Corretjer and Robert that Leon was present, and did not demur, during the previously described inci- dent when employee Ramirez said in January 1973 that the employees would not have to pay an initiation fee because they would be joining as a group.22 Employee Jose Rodri- guez credibly testified that in mid-February, after signing an authorization card given him by Ramirez, "I spoke with Ramon Fuste , Gabriel Leon about that we had to sign the card or if, on the contrary, we didn't sign, we would have to pay the initiation fee." Rodriguez ' testimony does not show what Leon said. About 3 hours before the polls opened on the morning of the election, Leon was named as the Union 's election ob- server by agreement between Oram, Leon himself, and other employees . Employee Fuste credibly testified that later that morning, about 9:30 a .m., Leon told him, "Don't forget that the person who votes for the union doesn't have to pay for the book that is worth $60. Whoever doesn't vote-whoever votes for the union doesn't have to pay for the book that is worth $60. Whoever doesn't vote for the union will have to pay for the book that is worth $60." There is no evidence that Fuste then knew that Leon would be a union observer . Ths polls opened about 2 hours lat- er.23 20 He further credibly testified that he was given blank authorization cards by employee Ramirez , who told him to tell the employees that if they filled out the cards they would not have to pay initiation fees . The signifi- cance vet non of this testimony is discussed infra, sec. 11, C. 21 The significance vet non of the reference to Ramirez is discussed infra, sec. 11, C. 22 My finding as to the substance of these remarks and that it was Rami- rez who made them is based on the testimony of Robert , whose memory impressed me as more exact than Corretjer's. My finding as to the date is based on Ramirez's January 1973 discharge . My finding that Leon was present is based on Corretjer's undenied testimony The significance vet non of the fact that it was Ramirez who made these remarks is discussed infra, sec. 11, C. 23 After the election , the employees selected Leon to act as their steward. ALLIED METAL HOSE COMPANY, INC. 1141 c. Alleged conduct by other employees (1) Credited testimony for Respondent Employee Fuste credibly testified that on January 27, 1973, employee Baerga 24 told him to sign a union card because "If you don't sign the card, you have to pay the initiation and if you sign it , you don't have to pay any- thing." Fuste further credibly testified that in mid or late February Baerga told him, "vote for the union so you don't have to pay for a book that costs $60. On the contrary, you're going to have to pay the $60." 25 As previously not- ed, employee Jose Rodriguez credibly testified that in mid- February 1973 Fuste, Baerga, and Monaco "were having a discussion with, speaking, saying that whoever didn't vote for the union would have to pay [$60 or $70] for the book." Rodriguez further credibly testified that 5 or 6 days before the election, Baerga "told me that to vote for the union, that if I didn't vote I would have to pay for the book, that a delegate of the union had told him that." Employee Leon credibly testified that a "few times" prior to the election, once in February and the others on undated occasions, Baerga told him that initiations had to be paid, that people who didn't enter the Union had to pay initiation of $55 or $60.26 Baerga credibly testified that "as often as [he] could see them," he told employees Fuste, Cardo, Rodriguez, and "a few others that they should join the union and they could get the benefits . If they don't they have to pay." Employee Jose Rodriguez credibly testified that, about the beginning of March, he had a conversation with em- ployee Manuel Jorajuria "About the coercion that they had done against us if we refused to vote for the union, we would have to pay for the book." Former employee Brito testified that in February "ev- erybody was talking about the union, all discussions were about the union . . . before we start to work, in coffee break, at lunchtime, then another coffee break, and all the time in the factory. . . . [The employees] were talking about the union, the union benefits , about that if we join the union that we don't have to pay any initiation fee. The person who doesn't join the union would have to pay the 24 Fuste identified this employee as "Carlos Vargas," but testified that Fuste had always addressed him merely as "Carlos." Counsel stipulated that Baerga was the only "Carlos" on the payroll. Moreover, as indicated infra, Baerga partially corroborated Fuste. 25 Fuste , who was called by Respondent , also testified that he reported this conversation to employee Robert , who said, "If [Baerga] told you that, it's because the union delegate told him to tell it to you," and that "it was true that if [Fuste ] voted for the union , [he] wouldn 't have to pay the $60." Robert , who was called by counsel for the General Counsel , testified that he told Fuste that he, Robert , was going to ask Baerga about the mat- ter; that Robert asked Baerga , "Where you find out this matter about we had to pay an initiation fee if you no join the union?"; and that Baerga "says this only for he wants to say so , he never heard about from any member of the union . . . Nobody told him from the union that . . . He say nobody from the union member tell me that , all I do is because I want to do it because I would like to scare the guys, that 's all." Baerga, who was called by Respondent , was not asked about the conversation described by Robert. On the basis of the witnesses' demeanor, I credit Robert. However , there is no evidence that he told Fuste about this conversation with Baerga. 26 Baerga 's February remarks purported to be, but were not, a translation of remarks by Fisher . See supra, sec. II, B, 2, b. $60 for the book." On the basis of this testimony and the previously summarized, credited testimony about employ- ee discussion of initiation fees, I conclude that during a period which extended beyond the January 31 filing of the petition and lasted until the election, a number of the em- ployees frequently discussed initiation fees between them- selves ; that much of this discussion was to the effect that employees who signed union cards and/or voted for the Union would not have to pay initiation fees of $60 or $70 whereas others would; and that some of it was to the effect that initiation fees would have to be paid by employees who did not join the Union, but not by employees who did join. (2) Discredited testimony for Respondent (a) Regarding Montgomery's alleged statements Former employee Brito further testified that during a lunch break employee Montgomery told employee Joraju- ria, and others whom Brito did not identify, that "if you join the union, you don't have to pay an initiation fee, but if you don't join the union you have to pay the $60.00 fee." Brito vacillated in his testimony about whether this alleged conversation occurred before or after the election. Employ- ee Rafael Rivera testified that during a February 1973 lunchbreak, Montgomery said-in the presence of, inter alia, employees Jorajuria, Leon, Robert, Brito, and Fuste- that "if we join the union that we don't have to pay for the book, the only one who have to pay is that doesn't join the union." Rivera's prehearing affidavit states, "I never heard anything about the Union book or its cost." Montgomery (called by counsel for the General Counsel) testified that prior to the election he had no discussions with any of the employees about initiation fees , and described a conversa- tion when Jorajuria said he was not interested in a union because "you have to be a socialist." Robert ( a witness called by counsel for the General Counsel) testified that with exceptions immaterial here, prior to the election he did not hear any discussion among employees about initia- tion fees . Counsel for the General Counsel called Leon as a witness , but did not ask him about Montgomery 's alleged remarks?? I conclude that Montgomery did not make the remarks which Brito and Rivera attributed to him. In the first place, Montgomery is a fairly intelligent man who speaks English as a native language, and I think it inherently unlikely that he made such remarks, which are senseless if taken liter- ally. Moreover, Rivera's testimony in this respect is square- ly contradicted by his prehearing affidavit; whereas the prehearing affidavits of Montgomery and Robert, although in other respects inconsistent with their testimony (supra, fns. 11 and 12), are not inconsistent as to this matter. Addi- tionally, Brito vacillated as to the date of Montgomery's alleged remarks. Further, I found Montgomery's and Robert's demeanor more impressive than Rivera's and Brito's. 27 Nor did Respondent ask its witness Fuste about the matter . However. Fuste is a Spanish-speaking employee who testified entirely through an in- terpreter; and, because Montgomery does not speak or understand Spanish, any such conversation would necessarily have been carried on in English. 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Regarding Robert's alleged statements Former employee Brito testified on direct examination that in early February he saw employees Robert and Hour- ruitiner standing outside the plant with Fisher. Still on di- rect examination , Brito went on to say that later that same day, Robert "told me that the union say, if we join the union, we don't have to pay any initiation fee but those who doesn't join the union, will have to pay the $60.00 book." On cross-examination, Brito testified that this con- versation with Robert occurred a couple of days before the election, which was held on March 7. Brito then went on to testify that Robert asked him whether he had signed a union card, that Brito replied he had, and that Robert then said "that we have to join the union because if we join the union now, we don't have to pay any initiation fee but if we don't join the union now, we will have to pay the $60.00 initiation fee." On further cross-examination, Brito testi- fied that before the election Robert said that "I [Brito] have to vote for the union" because of its many benefits. When asked whether there were other reasons , Brito re- plied, "There were other reasons that-he told me that the union agent told him that if we-that if we vote for the union , we don't have to pay any initiation fee." When asked whether Robert had said "if we vote for the union" or "if we join the union," Brito initially said, "16 we join, I think";28 then, in response to suggestions from me and counsel for the General Counsel, replied "both;" then vol- unteered, "I think it's almost the same word, vote or join"; then said he considered them the same ; and then said that Robert used the word vote at one time and join at another. In response to a leading question on redirect examination, Brito testified that the Fisher-Robert-Hourruitiner conver- sation occurred in late January or early February. Hourrui- tiner did not testify. Fisher testified that prior to the elec- tion he never discussed initiation fees with any employees, and Robert that prior to the election he never discussed initiation fees with any union representatives. Robert, who was called as a witness by counsel for the General Counsel, denied talking to Brito about the Union before the elec- tion . Robert testified on direct examination that prior to the election, he never talked to any other employees (with exceptions immaterial here) about initiation fees, had no discussions with employee Ramirez about the subject, and did not hear Ramirez speaking to other employees about the subject. On cross-examination , Robert admitted stating in his pretrial affidavit that prior to the election Ramirez told him that the employees would not have to pay initia- tion fees because they would be joining as a group; and initially admitted and then denied discussing the Union's advantages with Brito before the election. Particularly because Brito was Robert's helper, I believe that Robert did in fact discuss the Union with him prior to the election. However, I conclude that Robert did not make the foregoing statements attributed to him by Brito. a The transcript appears to ascribe this remark to me . As is clear from the context , the remark was in fact made by Bnto . The transcript is hereby corrected accordingly. Robert impressed me as too intelligent to have either ac- cepted from others or conveyed to Brito the senseless state- ment, initially testified to by Brito, that employees who joined the Union would not have to pay initiation fees but those who did not join, would have to pay.29 Not until his cross-examination did Brito improve the coherence of his version of Robert's remarks by adding the word "now" at two critical points; and during his subsequent testimony he never again adverted to the "nows" or their equivalent. Further, I find inherently unlikely Brito's testimony that immediately after being told that Brito had already signed a card, Robert advanced to him arguments directed at in- ducing such action, particularly at inducing such action "now." Brito's subsequent assertions that Robert simulta- neously or on other occasions used such arguments to urge a union vote impressed me as afterthoughts. Moreover, Brito initially dated the conversation as having occurred in early February, then as just 2 days before the March 7 election , and then as late January (that is, on a date when such conduct was likely too remote to warrant invalidating the election) 30 or early February. Furthermore, the se- quence of events described in Brito's testimony suggests that Robert obtained his figure of a $60 initiation fee from or in the presence of Fisher; yet it is undenied that the fee was in fact $50, and it seems highly improbable either that Fisher would have led Robert to believe it was $60, or that Robert would have forgotten the correct amount during the short intervening period. For these reasons, and after considering the witnesses' demeanor, I do not believe Brito's testimony in this respect, and to this extent credit Robert's testimony about his preelection conversations with Brito. (c) Regarding Rivera's alleged conversations Employee Rivera testified that prior to the election, he had conversations with employees Fuste and Pardoa to the effect that employees who did not join the Union would have to pay "$60 for the book." Pardoa did not testify. Fuste testified for Respondent, but did not corroborate Rivera's testimony. Rivera's prehearing affidavit states that prior to the election he "never heard anything about the union book or its cost." In view of this affidavit, the fact that Rivera's testimony stands uncorroborated, and his de- meanor, I do not credit his testimony in this respect. C. Analysis and Conclusions In N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973), the Supreme Court held that the Board should set aside a union-won election preceded by union offers to waive initiation fees for those who signed union "recogni- 29 While Robert's limited ability to understand English might account for his getting such an initial impression of an English statement regarding initiation fees , I believe him intelligent enough to realize thereafter that he must have misunderstood the English words, because the speaker would not likely have intended to say anything so foolish. Because I infer that any Robert-Brito conversation about initiation fees would have been carried on in Spanish , both employees' native language , I do not believe that Brito's testimony in this respect flowed from either an inaccurate choice of words by Robert or a misunderstanding on Brito's part of what Robert told him. 30 See infra, fns. 36 and 46. ALLIED METAL HOSE COMPANY, INC. 1143 tion slips" before the election. The Court found " legiti- mate" the Union's "interest in waiving the initiation fee, when the Union has not yet been chosen as a bargaining representative, because 'employees otherwise sympathetic to the Union might well have been reluctant to pay out money before the Union had done anything for them. Waiver of the [initiation fees] would remove this artificial obstacle to their endorsement of the Union."' However, the Court stated that "this interest can be preserved as well by waiver of initiation fees available not only to those who have signed up with the Union before an election but also to those who join after the election. The limitation imposed by the Union in this case-to those joining before the elec- tion-is necessary only because it serves the additional purpose of affecting the union organizational campaign and the election." The Board has read Savair as rendering proper a preelection offer to waive initiation fees where the offer extended to all eligible voters and was not limited to those employees who signed up with the Union before the election.3 As found supra, in February 1973, employee Monaco remarked to employee Brito, in English and in Union Rep- resentative Fisher's hearing, that "if we join the Union .. . we don't have to pay any initiation fee." I find that this statement was made under circumstances where Fisher would be expected to disavow it if it were not true, and therefore, that it bound the Union 32 However, the state- ment was literally true with respect to all eligible voters as well as all other employees hired before a contract was signed, accurately described a valid union policy, and nei- ther literally nor by implication asserted that eligible voters would indeed have to pay initiation fees unless they joined by a particular date. Accordingly, and although ambigui- ties in the Union 's waiver offer about whether it extends to postelection signatories are to be resolved against the Union,33 I conclude that this statement did not affect the validity of the election.34 As found supra, prior to the election employees Ramirez, Hourruitiner, Leon, and Baerga made various statements to their fellow employees about initiation fees . Many of these statements would constitute objectionable conduct if made by a union agent after the filing of the petition 33 I 31 See , e.g., Endless Mold, Inc., 210 NLRB 159 (1974); Lawrence Security, Inc., 210 NLRB 1048 (1974); Wabash Transformer Corp., 210 NLRB 462 (1974); Con-Pac, Inc., 210 NLRB 466 (1974). 32 N.L.R.B. v. Urban Telephone Co., 499 F.2d 239 (C.A. 7, 1974); Bonnaz Embroideries Tucking and Pleating and Allied Crafts Union, Local 66, Inter- national Ladies' Garment Workers' Union (V. & D. Machine Embroidery Co.), 134 NLRB 879, 880 (1961); Local 5881, United Mine Workers (Grundy Min- ing Co.), 130 NLRB 1181, 1182, enfd . 296 F .2d 734 (C.A. 6, 1961). 3Inland Shoe Manufacturing Co., Inc., 211 NLRB 724, (1974); cf. Ban- cro7t Mfg. Company, Inc., 210 NLRB 1007 (1974). Because the initiation -fee waiver offer in fact extended to all eligible voters, I regard as immaterial to the election's validity the statement 's fail- ure to point out that initiation fees would have to be paid by employees who could not vote in the election-namely , those who were hired after a con- tract was signed . Cf. Coleman Co., Inc., 212 NLRB 927 ( 1974), where the Union's statement that initiation fees would be waived for "all present em- ployees who make application for charter membership ," without specifying when such application would have to be made or what "charter member- ship" was, was susceptible of the construction that eligible employee voters would benefit by making a union commitment before the election, to avoid paying the initiation fee. find that, standing alone, they did not invalidate the elec- tion for the following reasons: (1) all of Ramirez' and Hourruitiner's statements were made before the election petition was filed;36 (2) all but one of Leon's statements either were shown to have been made before the petition was filed, or were not shown to have been made af- terward;37 (3) some of Baerga's conduct occurred before the filing of the petition'38 or was not shown to have oc- curred afterward (see supra, fn. 37),39 and (4) none of these employees was shown to have been a union agent. Although making no claim that Leon's appointment as a union observer on the morning of the election rendered his statements about initiation fees attributable to the Union,40 Respondent does contend that employee Ramirez' state- ments on this subject are attributable to the Union. Rami- rez did not testify, and there is no direct evidence that any union representative made any remarks to him about initi- ation fees4t Fisher and Oram testified that they gave no more than one extra union card to any employee except one, who was given 5 to 10 cards because he asked for them. Both Fisher and Oram- testified that they could not remember the name of this last employee, but that they were fairly sure it was not Ramirez. However, I am satis- fied that this employee was in fact Ramirez, in view of Leon's credible testimony that Ramirez gave him several blank cards to distribute and the credible testimony of sev- eral other employees-that Ramirez gave them blank cards to sign. Moreover, I am persuaded that in testifying that this employee was not Ramirez, Fisher and Oram were testifying untruthfully rather than merely mistakenly. Be- cause Ramirez' January 1973 discharge led the Union to file an unfair labor practice charge processed by Fisher, because of Fisher's and Oram's somewhat evasive testimo- ny about the matter, and because of their demeanor when giving such testimony, I do not believe that they could not recall him as an individual. Further, I infer from their un- truthful replies in this respect that they were attempting to conceal that they or one of them did in fact make state- 35 More specifically, Ramirez ' statements to Leon, Corretjer, Brito, Rodri- guez, and Baerga to the effect that if they signed union cards they would not have to pay an initiation fee; Hourruitiner's and Baerga 's similar statements to Fuste ; Leon's similar statements to Fuste and four or five others ; Leon's statement to Fuste that employees who voted for the Union would not have to pay a $60 initiation fee, but those who did not vote for the Union would have to pay the fee; Baerga's similar statements to Jose Rodriguez, and Baerga 's statements to Leon that people who did not enter the Union had to pay initiation of $55 or $60. However, the election would not be set aside because of statements, like those made by Ramirez, that the employees would not have to pay an initiation fee because they would be joining as--a group. See supra, fn. 31. 36 See Goodyear Tire and Rubber Co., 138 NLRB 453 (1962); Gate of Spain Restaurant Corp., 192 NLRB 1091 (1971). 37 The burden rested on Respondent to show that such statements were made during the critical period . Garden City Fan and Blower Company, 196 NLRB 777, 777-778 (1972). - 38 More specifically , one of his statements to Fuste. 19 More specifically , all but one of his statements to Leon , and certain statements made to Fuste , Cardo, Rodriguez, and "a few others" "as often as he could see them." 40 See Bridgeport Castings Co., 109 NLRB 749, 751-752 (1954). 41 Respondent discharged Ramirez 17 months prior to the hearing, and there is no evidence that after the dismissal of the charge based on his termination he had any further connection with or interest in the Union. Accordingly, I reject Respondent's contention that his failure to testify calls for an adverse inference against the Union or counsel for the General Coun- sel. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meats to Ramirez about initiation fees; and to this extent, I discredit their testimony that prior to the election they never discussed initiation fees with any employees 42 However, I do not think that Respondent has thereby sustained its burden of showing that Ramirez ' statements to employees about initiation fees are attributable to the Union. Fisher's credible testimony that the Union's bylaws permit the Union to reduce the regular initiation fee for organizational purposes , and the credited testimony re- garding his statements to the employees shortly after the election, establish that the Union was not in fact following an improper initiation-fee practice. Moreover, Ramirez' statements to the employees about the matter were mutual- ly inconsistent , and, indeed, some of them accurately re- flected the policy which the Union followed in fact. Fur- thermore, Ramirez' statements that the Union's initiation fees were $60 or $70 inaccurately described the Union's real $50 fee , and I think it inherently improbable that any misrepresentation that the Union may have made to Rami- rez about initiation fees would have included this particu- lar misstatement . Because of such inconsistencies and inac- curacies , because Ramirez' assertions to some employees about the source of his initiation fee statements are hearsay as to the identity of the source, and because of his fre- quently vague descriptions of his alleged source ,43 I find such assertions nonprobative with respect to the existence or contents of communications between Ramirez and union agents . Accordingly, I decline to find that Ramirez' inaccurate statements that the Union followed an invalid waiver policy echoed statements made to him by a union representative , or were prompted by a union 42 However , in thus discrediting their testimony in this respect , I do not rely on their diaries and Fisher 's weekly work reports , all of which were received into evidence after they testified . Fisher's work reports and diary corroborate his testimony about how often he came to the plant . Fishee s and Oram's diaries do indicate that Oram may have paid a March 2 visit alone and about which they did not testify . However , both union represen- tatives were testifying entirely from memory about events which had oc- curred at least 14 months earlier ; Fisher credibly testified that he had mis- laid his 1973 diary , which he did not locate until after he testified; and Oram credibly testified that his diary was then in his tax accountant's custo- dy. Moreover, I see no reason why either of them should have deliberately concealed a visit on March 2, after most of the allegedly objectionable statements had already been made. Nor do I regard Fisher 's testimony that he never conducted or scheduled any preelection meetings among Respondent's employees as impeached by his work report for the week ending January 19 . This entry states, "Visited and handled shops at Rheingold Brewery, Schaefer Brewery, Berge Ind., Breakstone Foods and Filtron Corp . Attended meeting reorganizing Hand- ing leaflets at Allied Metal Hose reorganizing this shop . Renegotiating con- tract at Central Molding Corp." (Emphasis supplied.) Respondent 's brief characterizes the "meeting" in the emphasized portion as an "organizational meeting," and asserts that it "clearly pertains to Allied Metal Hose, since, as may be gathered from reviewing Fisher's Weekly Activity Reports for Janu- ary, February , and March," whose sole reference to Schaefer appears on the January 19 report, "the other corporations listed were organized IAM shops." (This work report was offered into evidence after the last testimo- nial hearing day, and no explanation from Fisher of this entry was ever tendered .) However , this entry is at least equally consistent with the hypoth- esis that Fisher then attended a meeting of professional organizers (from District 15 itself, its affiliates , or other labor organizations) to discuss orga- nizational techniques . Moreover , not a single employee of Respondent testi- fied that he had ever attended or even been invited to any preelection orga- nizational meeting. 43 "Some agent of the union"; "the Union"; "a union delegate" (source of card only); "I was informed." representative's suggestion that Ramirez use an initiation fee argument in attempting to secure employee signatures. Rather , and notwithstanding Leon 's credible testimony that Ramirez frequently talked to Fisher outside the plant,44 I find that Respondent has failed to show that Ra- mirez' statements in this respect stemmed from any source other than private motives known only to him. Moreover, I credit Fisher's testimony , which is not directly contra- dicted, that he never selected any particular group of em- ployees to act as organizers , and never instructed anyone in the plant to act on the Union 's behalf . Additionally, I credit Oram's testimony, which is likewise not directly con- tradicted , that when giving out blank cards to employees he never told them to assist him in organizing Respondent. Accordingly, the record fails to show that in asking for a number of blank union cards and subsequently urging others to sign and distribute them , Ramirez was acting in any capacity other than as a pure volunteer who sought to further the interests of himself and his fellow employees, as he saw them, by soliciting authorization cards through techniques thought of and developed by himself alone. Further, there is no direct evidence that Oram or Fisher knew about Ramirez' improper representations regarding initiation fees; and I do not infer such knowledge absent evidence that these English-speaking union representatives were ever in the plant where the employees were discussing them (in. Spanish or otherwise ) or were present during the Hispanic Ramirez' solicitation elsewhere . For the fore- going reasons, I reject Respondent 's contention that Rami- rez' statements about initiation fees were attributable to the Union, and, therefore , its similar statements made by other employees on the basis of Ramirez' representations to them.4 Respondent's presentation of testimony regarding pre- petition statements , and regarding statements made by per- sons whose conduct was not even arguably attributable to the Union, led me to expect a contention by Respondent that even if no initiation-fee statements were attributable to the Union , the election should be set aside because an election atomsphere of fear, coercion, and confusion was allegedly created by rank -and-file employees' postpetition statements in light of prepetition statements connected with initiation fees .46 While Respondent's posthearing brief w To this extent , I discredit Fisher's testimony that no particular individ- uals talked to him at the plant . Further , as a matter of inference, I find that the progress of the organizing campaign was a frequent subject of Fisher's discussions with Ramirez. However, Leon did not tender probative testimony that Ramirez "fre- quently reported to Fisher concerning the current status of the Union's organizational activities inside the plant ," that Ramirez "acted as a conduit of information during the Union 's organizing drive and frequently relayed information from the employees to the Union and, in return , from the Union to the employees ," or that he "periodically relayed information con- cerning pro and antiunion sentiment in the plant which he had obtained from Leon to Fisher, and also dutifully conveyed Fisher 's instructions back to Leon." Leon testified that he did not overhear any conversations between Ramirez and Fisher. 43 See Bufkor-Pelzner Division, Inc., 197 NLRB 950, 950, 954 (1972), enfd. 84 LRRM 2432 (C.A. 9, 1973); Bridgeport Castings, supra, 109 NLRB at 751-752 (1954); J. J Newberry Co., 100 NLRB 84, 86 (1952). 46 In evaluating election objections , the Board will consider prepetition conduct insofar as it lends meaning and dimension to related postpetition conduct . Stevenson Equipment Co., 174 NLRB 865, 866 , In. 1 (1969 ). See also Consolidated Rendering Company, d/b/a Burlington Rendering Co., 161 ALLIED METAL HOSE COMPANY, INC. 1145 does not in terms so contend, I believe the issue is suffi- ciently presented by the record to warrant exploration. As to objections based on preelection rumors among the employees, the Second Circuit has stated (N.L.R.B. v. Staub Cleaners, Inc. and Ben Barnet Cleaners, Inc., 418 F.2d 1086, 1088, (1969) cert. denied 397 U.S. 1038): The Board has been reluctant in the past to give the same weight to anonymous or third party attempts to influence the outcome of certification elections that it gives to improper efforts by the parties themselves. [Citing cases.] Even where the conduct condemned is the product of rank-and-file Union members, the Board has been hesitant to set aside an election in the absence of a showing that they acted at the command or urging of Union officials. See Orleans Mfg. Co., 120 NLRB 630 (1958): While the Board will consider conduct not attrib- utable to any of the parties in determining whether an election should be set aside, the Board accords less weight to such conduct than to conduct of the parties. See also E. I. Dupont de Nemours & Co., Inc., 105 NLRB 710 (1953). The rationale for such a distinction is soundly based. Generally, prejudicial remarks com- ing from anonymous or non-authoritative sources are apt to be more lightly regarded by employees than those backed up by the employer or the union. Allega- tions by one who controls the conditions of employ- ment, or who seeks to participate in that control are more likely to carry weight. Moreover, where one of the parties is directly at fault, the most effective deter- rent to future misconduct is to deny that party what it sought to gain improperly. But, when unknown third parties are responsible for the improper comments, they have little concern with the expense and annoy- ance incurred by repeating the election, and the NLRB order in such a case carries with it no deterrent effect. Moreover, "any other rule would invite third parties or one of the protagonists who doubted the election outcome to anonymously create incidents and then attempt to use them to set aside the election." N.L.R.B. v. Monroe Auto Equipment Co., Hartwell Division, 470 F.2d 1329, 1332 (C. A. 5, 1972), cert. denied 412 U.S. 928 (1973). See also Price Brothers Company, 211 NLRB 822 (1974). Nonetheless, the Board will set aside an election on the basis of third-party conduct which created a "general at- mosphere of fear and confusion which precluded the hold- ing of a free election." James Lees and Sons Company, 130 NLRB 290, 291 (1961). In determining whether preelec- tion rumors reached this level, the Board considers, so far as appears relevant here, (1) the seriousness of the suppos- edly threatened harm, (2) the likelihood that the employees will attribute the rumored threats to one of the parties, (3) that party's power to carry them out, (4) the believability of the rumors, (5) whether the allegedly objectionable rumors were counteracted by other rumors, (6) the proportion of the employees exposed to the allegedly objectionable ru- mors, and (7) the frequency with which they were repeat- ed.47 Moreover, (8) Savair, supra, indicates that the size of the plurality is likewise to be taken into account." Factors 6 through 8 are sufficiently established by this record. During the critical period, at least 6 49 of the ap- proximately 25 persons eligible to vote in an election whose results might have been reversed by a change in 2 votes were exposed, sometimes repeatedly, to allegedly objec- tionable statements by fellow employees regarding initia- tion fees. The evidence regarding factors 2 through 5 contains cer- tain deficiencies, although perhaps not fatal ones. Thus, it was rumored that initiation fees would be required not only from those who did not sign union cards (whom the Union could obviously identify) but also from those who failed to vote for the Union (whose identity would be con- cealed by the secrecy of the ballot) 50 Further, it cannot be assumed that none of the employees recognized as garbled, because senseless , the rumor that those who joined the Union would not have to pay initiation fees, but those who did not join would have to pay them: Moreover, the inac- curate postpetition rumors about the Union's initiation fees may well have been at least partly counteracted by Monaco's essentially accurate postpetition statements (im- pliedly approved by Fisher) that employees who joined the Union would not have to pay initiation fees, by Ramirez' accurate prepetition statements to some employees that the employees would not have to pay any initiation fees be- cause they would be joining as a group, and by the fact that the inaccurate rumors sometimes contradicted each other.51 In addition, most of the postpetition-as well as the prepetition-rumors did not purport to come from any- one who had any particular connection with the Union or any special knowledge about the initiation fee policy of which the employees were hearing several different ver- sions. However, it is principally the content of the instant ru- mors which leads me to conclude that they were insuffi- cient to create an "atmosphere of fear, coercion, and con- fusion ." Virtually all the elections set aside under this rubric on the basis of third-party conduct have heretofore involved violence or threats of violence, threats of job loss on a mass scale, or highly inflammatory rumors on subjects (e.g., racial matters irrelevant to the election issues. 2 While I do not suggest that no other kinds of third-party conduct could call for setting an election aside,53 the facts of these prior decisions do indicate the type of third-party conduct regarded as "of such nature as to preclude the exercise by 07 See, e.g., the cases cited infra, fns. 50, 51, and 52. 48 Cf. Central Photocolor Co., Inc., 195 NLRB 839 (1972). 49 Namely, Fuste , Leon , Baerga , Rodriguez , Jorajuria , and Brito. 30 Cf. Janler Plastic Mold Corp., 186 NLRB 540 (1970); Price Brothers, supra, 211 NLRB 822 (1974). 31 Cf. General Housing Industries, Inc., 197 NLRB 24 (1974). NLRB I, 16-17 (1966), enfd. 386 F.2d 699 (C.A. 2, 1967). Cf. N.L.R.B. v. 52 See, e.g., Al Long, Inc., 173 NLRB 447 (1968); Universal Manufacturing Dee's of New Jersey, Inc., 395 F.2d 112, 115-116 (C.A. 3, 1968); N.L.R.B. v. Corporation of Mississippi, 156 NLRB 1459 (1966). Blades Manufacturing Corp., 344 F.2d 998, 1003 (C.A. 8, 1965). s See, e.g, The Great Atlantic & Pacific Tea Company, 120 NLRB 765, 766-767 (1958). 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unit employees of a free choice in the election" (Reed Seismic Co., 182 NLRB 158 (1970), enfd . in relevant part 440 F.2d 598 (C.A. 5, 1971) ). I conclude that the third-party pressures exerted herein did not render a free and rational choice impossible . These pressures consisted of (1) endorsements which may have been regarded by the endorsers (although erroneously) as having been "bought" from them by the Union for $50 to $70, but which nonethe- less may have been accepted by their fellows as unbought views worthy of respect ; (2) some employees' possible sense of moral obligation to vote for the Union after sign- ing a Union card in the belief (although erroenous) that the Union had "bought" their signatures for $50 to $70; some employees' possible belief that the choice expressed in their individual ballots, although secret, would nonetheless cause them to lose or gain $50 to $70 if the Union was voted in; and (4) some employees' possible fear (based upon the erroneous belief that the Union was trying to "buy" endorsements and votes for $50 to $70) that if they did not sign they would face a "wrathful union regime should the union win." See Savair, supra. I do not think the cumulation of these possible pressures resulting from erro- neous employee rumors rises to the level of the third-party conduct which prior cases have regarded as invalidating a Board election where the parties themselves have engaged in no improper conduct. Moreover, Savair 's holding that a union has a "legiti- mate interest" in waiving initiation fees from employees for whom the union had not yet done anything, and that such a waiver would remove an "artificial obstacle to [such employees'] endorsement of the union," points toward cau- tion in setting aside a Board election on the basis of rumors like those presented here . The instant record establishes that this Union's proper initiation-fee policy designed to protect this legitimate interest was so susceptible of em- ployee misinterpretation that a number of individual em- ployees gave different versions (mostly wrong) at different times . Indeed, the 4 employees who related what Fisher said at the postelection meeting at the bar gave four differ- ent versions of what was said about initiation fees, and two of them gave still different accounts in their preheating affidavits (supra, fn. 5). The fact that such misapprehen- sions developed among employees whose intelligence im- pressed me as average or better u lends weight to the con- clusion that Board readiness to set union-won elections aside because of unfounded rumors alleging an initiation- fee policy condemned by Savair would seriously jeopardize union organizational interests whose legitimacy Savair ex- plicitly sought to preserve . If employee misunderstandings on this subject are sufficient to void a union election victo- ry, the ease with which they develop-an ease vividly illus- trated by the record herein-would deter wholly proper waivers by suggesting that a union offers any such waivers at its peril, even where (as is true here, so far as the record shows) employee misunderstandings of that policy were H Such misapprehensions cannot be ascribed mostly to the language problem, which in any event is fairly common in certain areas and indus- tries . The victims included Montgomery, who spoke only English (supra, fn. 5), as well as bilingual employees and employees who spoke little or no English. never drawn to its attention before the election was held. In this connection , I attach significance to the absence of evidence that any employee asked either the Union or Re- spondent to clarify the initiation-fee matter , even though a number of individual employees not only heard but ten- dered mutually inconsistent versions . It seems to me likely that if the employees had been seriously concerned about the matter, at least some of them would have tried to get the matter straightened out. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. All production and maintenance employees employed by Respondent at its premises located at 37-46 9th Street and 37-29 9th Street, Long Island City,,New York, exclu- sive of all office clerical employees , sales employees, pro- fessional employees , guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(a) of the Act. 4. Since June 29, 1973, the above-named labor organiza- tion has been and is now the certified and exclusive repre- sentative of all employees in the aforesaid appropriate unit for the purposes of collective-bargaining within the mean- ing of the Act. 5. By refusing on or about July 16, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive representative of all the employees of Respondent in the appropriate unit, Respon- dent has engaged in and is engaging in unfair labor practic- es 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 Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, I shall recommend that Respondent be required to cease and desist therefrom and, upon request, to bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such an understanding in a signed agreement . I shall also recom- mend that Respondent be required to post appropriate no- tices . Because Spanish is the native language of most of Respondent's employees, and some speak no English, such notices shall be in Spanish as well as English. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargain- ing agent for the period provided by law, the initial period of certification is to be construed as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Ho- ALLIED METAL HOSE COMPANY, INC. tel, 140 NLRB 226 (1962), enfd . 328 F .2d 600 (C.A. 5, 1964), cert . denied 379 U.S. 817; Burnett Construction Co., 149 NLRB 1419 , 1421, enfd . 350 F .2d 57 (C.A. 10, 1965). Upon the foregoing findings of fact and conclusions of law and upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended Order: ORDER55 Respondent Allied Metal Hose Company, Inc., its offi- cers , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with District No. 15, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent at its premises located at 37-46 9th Street and 37-29 9th Street, Long Island City, New York, exclusive of all office clerical employees, sales employees , professional employees , guards and supervisors as defined in the Act. (b) In any manner interfering with the above -named la- bor organization 's efforts to bargain collectively with Re- spondent. 2. Take the following action which is necessary to effec- tuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative in the aforesaid appropriate unit with respect to rates of pay , wages , hours, and other terms and conditions of employment, and, if an understanding is reached , embody such understanding in a signed agreement. (b) Post at its Long Island City, New York, facilities copies , in English and Spanish , of the attached notice marked "Appendix." 56Copies of said notice, on forms pro- vided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall 1147 be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29 in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 55 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec 102 .48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order , and all objections thereto shall be deemed waived for all purposes. 56 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of The National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours , and other terms and conditions of employment with District No . 15, Inter- national Association of Machinists and Aerospace Workers , AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any manner interfere with District 15's efforts to bargain collectively with us. WE WILL , upon request , bargain with District 15 as the exclusive representative of all employees in the unit described below , with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All our production and maintenance employees at our premises located at 37-46 9th Street and 37-29 9th Street, Long Island City, New York, ex- clusive of all office clerical employees , sales employ- ees, professional employees , guards, and supervisors as defined in the Act. ALLIED METAL HOSE COMPANY, INC. Copy with citationCopy as parenthetical citation