North Electric Company, Plant No. 10, Gray, Tennessee

National Labor Relations Board - Board Decisions

Jul 30, 1982

262 N.L.R.B. 1467 (N.L.R.B. 1982)

NORTH ELECTRIC COMPANY
North Electric Company, Plant No. 10, Gray, Ten-
nessee and Communications Workers of Amer-
ica. Case 10-CA-13000
July 30, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
A representation election was conducted on Oc-
tober 6 and 7, 1976, pursuant to the Board's Deci-
sion, Order, and Direction of Second Election. 1
The tally of ballots showed 682 votes for, and 679
against, the Union, with 5 void and 2 challenged
ballots. Respondent filed timely objections to con-
duct affecting the results of the election, alleging in
substance that union supporters threatened employ-
ees and that the Union made material misrepresen-
tations on the eve of the election, a time when Re-
spondent was unable to reply effectively.2 The Re-
gional Director for Region 10 conducted an inves-
tigation and, on November 12, 1976, issued his
Report on Objections in which he recommended
that Respondent's objections be overruled and the
Union be certified. On April 1, 1977, the Board
adopted the Regional Director's Report on Objec-
tions and certified the Union.
Subsequently, by letter dated April 4, 1977, the
Union requested that Respondent meet for pur-
poses of collective bargaining. Respondent refused
to bargain with the Union, contending that the
Union was improperly certified. Thereafter, the
Union filed unfair labor practice charges. The
Board, in its Decision and Order,3 found that all
issues raised by Respondent, save for an alleged af-
firmative defense concerning its misrepresentation
objection, were considered and resolved in the un-
derlying representation case. Respondent's alleged
affirmative defense was found to be without merit.
The Board therefore granted the General Counsel's
Motion for Summary Judgment, found that Re-
spondent unlawfully refused to bargain in violation
of Section 8(a)(5) of the National Labor Relations
Act, as amended, and ordered it to bargain upon
request.
On March 26, 1981, the United States Court of
Appeals for the Sixth Circuit denied enforcement
of the Board's Order and remanded the case to the
225 NLRB 1114 (1976), enfd. 588 F.2d 213 (6th Cir. 1978).
2 Respondent's allegation that the Board agent improperly refused to
count a ballot as challenged was rejected by the Regional Director on
the grounds that Respondent failed to file a timely objection to the Board
agent's conduct and that, assuming a timely objection, the ballot revealed
a clear intention on the part of the voter.
3 240 NLRB 220 (1979).
262 NLRB No. 174
Board.4 Following its reasoning in Prestolite Wire
Division v. N.L.R.B., 592 F.2d 302 (1979), and
N.L.R.B. v. Curtis Noll Corporation, Curtis Indus-
tries Division, 634 F.2d 1027 (1980), the court held
that it is an abuse of discretion for the Board to
adopt the report of the Regional Director without
reviewing the documentary evidence relied on by
the Regional Director. The court held that Section
102.69(g) of the Board's Rules and Regulations,
Series 8, as amended,5 requires the Board to
review all the documentary evidence relied on by
the Regional Director in his disposition of election
objections in cases in which there is only an admin-
istrative investigation and no hearing. The court
further held that it is the Regional Director's re-
sponsibility to transmit the record, as defined in the
first sentence of Section 102.69(g), to the Board for
such review.
The court remanded the case to the Board for
reconsideration of the Regional Director's report in
light of the documentary evidence in the record.
The court declined to order the Board to conduct
a hearing because Respondent's objections do not,
on their face, raise material factual disputes. In-
stead, the court left it to the Board to determine
whether the objections, when reviewed with the
documentary evidence in the record, require a
hearing.
On August 4, 1981, the Board accepted the
court's remand. Subsequently, Respondent filed a
statement of position.
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.
We have reviewed the entire Regional Office file
in the representation proceeding and have re-
viewed the documentary evidence relied on by the
Regional Director, as well as witness statements
submitted to the Board by Respondent." As dis-
cussed below, we affirm the Regional Director's
overruling of Respondent's objections and the Cer-
tification of Representative.
Respondent's objections concerning alleged
threats to employees are as follows:
1. Employees who openly supported the
Employer prior to the election were threat-
ened that property of theirs would be damaged
4 N.LR.B. v. North Electric Company, Plant No 10, b44 F.2d 580
6 The Rules and Regulations have since been revised
a Respondent did not submit a copy of employee Wilcox's affidavit ob-
tained by the Regional Director during the investigation of the objec.
tions. We accept as the law of the case the court's instruction to review
this affidavit, but note that it continues to be the Board's policy that affi-
davits independently acquired by a regional director during the investiga-
tion of objections are confidential and are not part of the record
1467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or destroyed if they came to work and voted
in the election.
2. Employees who openly supported the
Employer prior to the election were threat-
ened that their homes would be burned down
if they came to work and voted in the elec-
tion.
3. Employees were threatened that their
homes could be burned down if they did not
vote for the CWA Union.
4. Employees were otherwise harrassed [sic]
and intimidated in their exercise of a free and
unrestrained choice in the election.
Employee Mary Sanders stated in her affidavit
that she received a "Vote No" badge on Monday,
September 27, 1976, and wore it the remainder of
the week and the following Monday and Tuesday.
On or about October 4,7 Sanders received a tele-
phone call at home. The caller identified himself
and said he was working for the Union. Sanders
could not recall the caller's name. The caller told
Sanders to call the Union if she needed anything,
and asked her if the plant favored the Company or
the Union. After Sanders said she did not know,
the caller said the Union would appreciate a "yes"
vote.
On October 5, Sanders received a call from an
unidentified woman who asked if she was going to
vote "yes" in the election. Sanders replied she was
not going to disclose her vote, whereupon the
caller allegedly stated several times, "You'd better
vote 'yes."'
On the evening of October 6, the day before
Sanders was scheduled to vote, an unidentified man
called Sanders and asked how she was going to
vote. Sanders refused to say, and asked the caller if
he was working for the Union. The caller replied,
"Let's say I'm working for the Union," and asked
if she was going to vote "for us." Sanders again re-
fused to say. The caller then allegedly said, "You
don't want nothing to happen to your car, do
you," and mentioned the make of Sanders' auto-
mobile, adding "we watch you all the time." After
repeating his statement about Sanders' car, the
caller told Sanders not to wear "Vote No" badges
any more, and that she would "be better off not
[going] to work tomorrow." Sanders stated that
she did not wear her "Vote No" badge when she
voted the next day because of the phone call. She
also stated that after the call she telephoned two
friends and told her rider the following morning.
Employee Adel Pender stated in her affidavit
that she wore a "Vote No" sticker for approxi-
mately 2 to 3 hours on October 5. For the past 2 or
7 All dates are in 1976 unless otherwise indicated.
3 weeks Pender had been eating lunch with a
group of employees, one of whom was an open
union supporter. The employees discussed the
Union nearly every day during lunch. On October
5, while Pender was wearing her "Vote No" stick-
er, the union supporter told her it was "against
government rules" to be wearing a "Vote No"
sticker. Pender replied she was not aware of any
such rule. The union supporter then allegedly said,
"Your house could be burned down if you don't
vote for the Union." In response, Pender asked if
that "was the kind of people we need to represent
us." Pender stated in her affidavit that she repeated
the house-burning remark to a woman in her de-
partment and to two employees from other depart-
ments. Pender, in an earlier statement, asserted that
she reviewed her homeowner's insurance policy
after the October 5 discussion.
Pender also stated in her affidavit that several
days prior to October 5 she received a telephone
call from a Mr. Buchanan who stated he worked
for Bristol Telephone. The caller answered
Pender's questions about the Union and asked her
how she was going to vote. Pender replied that she
was undecided. The caller said if Pender had any
more questions she could call him at home or at
the office.
Employee Mary Lou Wilcox stated in her affida-
vit that she had been on medical leave since
August 24. On October 5 she was called by an un-
identified man who told her that, since she was on
a leave of absence, she would not be eligible to
vote in the election. The caller also stated that
Wilcox would not have a job when she returned.
On the following day, Wilcox called her general
foreman who told her she could vote and informed
her of the voting hours. Wilcox, who in an earlier
statement placed the anonymous phone call on Oc-
tober 6, voted on October 7.
The Regional Director found that there was no
evidence that the unidentified callers or the union
supporter involved in the alleged threats were
agents of the Union. Assuming, arguendo, that the
threats occurred as alleged, the Regional Director
found that the nature of the conduct was insuffi-
cient to create a general atmosphere of confusion
and fear of reprisal for failing to vote for or sup-
port the Union. We agree. Our review of the
record shows that the alleged objectionable con-
duct was not attributable to the Union nor was it
of such a character to result in an atmosphere of
fear and coercion. Furthermore, the evidence does
not reveal the existence of substantial and material
factual issues which would require a hearing.
Respondent's objection alleging material misrep-
resentations by the Union is as follows:
1468
NORTH ELECTRIC COMPANY
Material misrepresentations of fact were
made by the Union in an election eve commu-
nication wherein it was indicated. that large
numbers of named employees had been unfair-
ly terminated or layed [sic] off and not re-
called because of their lack of union represen-
tation wherein the facts were such list of em-
ployees included:
(a) former employees who were deceased;
(b) employees who had, in fact, been re-
called to work;
(c) employees who had never been layed
[sic] off or terminated from the employment
of the Employer;
(d) employees who had voluntarily quit;
and
(e) employees who refused recall to work
from layoff.
The communication referred to in the objection
is a four-page letter from the Union to Respond-
ent's employees dated October 4. The cover page
of the letter contains a reprint of an article that ap-
peared in the October I edition of the Kingsport
Times. The article, which describes the upcoming
election at the Company, reports that Union Rep-
resentative Calvin Patrick "charged that the Com-
pany padded its payroll before the last election and
that there would be more layoffs after next week if
the Union does not win." The article further re-
ports that Patrick "said he has had phone calls
from 175 persons who have been laid off and not
rehired even though the Company has hired some
206 new employees since the last election." At the
top of the cover page, written in red, is "What
North Really Thinks of You," with a red arrow
pointing to a circled portion of the newspaper arti-
cle. The circled paragraphs of the article read as
follows:
Duncan [Respondent's manager of industrial
relations] responded to the Union's charges by
saying there was "no truth" to the layoff rehir-
ing figures being bandied about by the CWA.
"I'm sure during the last 10 years there are
some who have not been rehired for many rea-
sons, but at present, we have no one on lay-off
who is eligible for recall."
Prior to the 1974 election defeat for the
CWA, North Electric did hire "some new em-
ployees," but this was because of "business
conditions" and not to "pad the payroll" so a
Company win would be assured, Duncan said.
Written in red, to the right of the circled para-
graphs, is "Look at the attached list of employees
who have passed out the door since October 11,
1974, and Decide for Yourself ! Without a union,
they had no one to speak for them!" The list,
which comprises the remaining 3 pages of the
letter, contains approximately 1,080 names.
Respondent claims that, of the approximately
1.080 names on the list, 210 were employees who
voluntarily quit, 40 were never laid off or terminat-
ed, 46 were recalled or rehired from layoff. 67
were recalled but refused reemployment, 3 are de-
ceased, and 1 has no record of employment.
In support of this objection, Respondent submit-
ted other union communications pertaining to the
layoff/recall issue. A leaflet distributed September
14 states in relevant part:
We have received many telephone calls
from persons on lay-off who had more than 3
years service, were hurt on the job and now
the company refuses to take them back to
work. Others have called saying they are not
being called back even though they had se-
niority, but were laid off because of the so-
called family of skills. Now the company
doesn't need them.
Hundreds of employees who were working
when CWA started our campaign in March of
1974, do not work at North any more. We
told you then that North would hire hundreds
of employees to defeat the Union and then
those employees would be laid off after the
election. IT DID HAPPEN. During that cam-
paign, North said that the new employees
could only have job security through the com-
pany and not with CWA. Look around you.
How many of those employees hired in 1974
are being called back to work? WE NOW
PREDICT AGAIN, that the company with
knowledge of this up-coming election has
again hired NEW EMPLOYEES. They will be
laid off after the election, just like before. I be-
lieve the word is out and this time new em-
ployees will vote YES for CWA and them-
selves. Then, after the election, they will be
able to keep their jobs, because of the job se-
curity provided by your CWA contract.
On September 24, the Union mailed to employ-
ees a letter in which a former employee described
her hiring, layoff, and lack of recall. The letter
refers to relatives and a friend who were also laid
off and not recalled. The letter concludes with the
following:
CWA told us in 1974 North would lay us
off, after the election, and not recall us. I
didn't think too much about it then, but now I
know they were right.
If the new employees vote against the Union
they will go out the door just as we did.
1469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only way employees can have job secu-
rity is by voting in the union.
An October 1 letter to employees begins with
the following relevant paragraphs:
Over 1,500 names that were on North's pay-
roll when we started our first campaign on
Marcy [sic] 1, 1974, are NO LONGER
WORKING at North Electric.
We know that some quit, some married,
changing their names, some were terminated
but HUNDREDS HAVE NOT BEEN RE-
CALLED TO WORK.
CWA has received over 175 calls from
former employees who have not been rehired.
There must be several hundred more. Just
look around you. Every person in the plant
knows at least one person who has not been
recalled.
North has said that only the company can
give job security. CWA agrees with North
that the economy and sales are the primary se-
curity that management enjoys, yet, 1,500 em-
ployees PASSED OUT THE DOOR never to
enter again (even to get a reasonable explana-
tion from Mr. Runyan for their termination).
He has even refused to talk to most of them
on t:t- telephone. Is this fair? Is it morally
right to treat employees, who were loyal to
the company for more than 6 years, this way?
Can you feel secure knowing that without a
Union this can happen to you?
Right now, some of you know younger
people who [sic] the company has hired, yet in
the same family, there are older, former loyal
employees who are on layoff. Think about that
for a moment-Do you feel former employees
have job security?
Other communications issued by the Union
during the organizing campaign discussed the in-
creased job security a union contract would afford.
These handbills and letters specifically referred to
the layoff/recall issue, and asserted that seniority
provisions in a union contract would provide em-
ployees with increased job protection.
The Regional Director overruled this objection
on the ground that the Union's election eve com-
munication did not involve a substantial departure
from the truth. He found that the layoff/recall
issue was an integral part of the Union's organizing
campaign, and that the Union's October 1 letter to
employees acknowledged that some employees no
longer working at the Company had quit, changed
their names, or were terminated. He also noted that
the newspaper article appearing on the cover page
of the October 4 letter sets forth Respondent's re-
sponse to the Union's claim that new employees
were hired while former employees remained on
layoff.8
Respondent contends that throughout the 1976
election campaign the Union asserted that the
Company had unjustly discharged hundreds of em-
ployees since the first election. It argues that the
Union's election eve mailing of the list of employ-
ees who had "passed out the door" conveyed a
sense of corroboration of the Union's theme of
unfair discharges, and that, in this context, the sub-
stantial factual inaccuracies contained in the Octo-
ber 4 letter interfered with the employees' free
choice.
We agree with the Regional Director's overrul-
ing of the objection.9 The documentary evidence
shows that the issue of job security was frequently
addressed by the Union during the organizing cam-
paign. In particular, the Union claimed that many
individuals employed at the Company during the
first campaign were no longer working at North
and had not been recalled to work. The Union at-
tributed this situation to Respondent's tactic of
hiring employees to defeat the Union and then
laying them off after the election. The Union "pre-
dicted" the Company had again hired new employ-
ees who would be laid off after voting in the 1976
election.
The Union elaborated on the layoff/recall issue
in its October 1 letter to employees, claiming that
1,500 employees were no longer working, or had
"passed out the door," since the first campaign.
The letter admits that "some quit, some married,
changing their names, some were terminated," but
asserts that "hundreds have not been recalled to
work." Thus, the Union clearly was not claiming
that all of the 1,500 employees who had "passed
out the door" had been discharged and denied
recall as part of Respondent's alleged election strat-
egy.
Further, it is apparent from the face of the Octo-
ber 4 letter that the "list of employees who have
passed out the door since October 11, 1974" was
distributed to refute Respondent's comments in the
accompanying newspaper article that "at present,
we have no one on lay-off who is eligible for
recall." As understood in light of the Union's Octo-
ber I letter, the October 4 list of names was offered
s In its Decision and Order of January 25, 1979, the Board round that
Respondent's misrepresentation objection was properly overruled under
the standards of Hollywood Ceramics Company. Inc., 140 NLRB 221
(1962), reaffirmed in General Knit of California. Inc., 239 NLRB 619
(1978). Then Member Penello relied on Shopping Karr Food Market., Inc.,
228 NLRB 1311 (1977).
' Chairman Van de Water concludes that the objection is without
merit under the standards of either Shopping Kart, supra, or Hollywood Ce-
ramics, supra.
1470
NORTH ELECTRIC COMPANY
for the employees' consideration in evaluating the
plausibility of Respondent's layoff/recall statement.
Viewed in this context, Respondent's accounting
for the status of 367 of the 1,080 names on the list
fails to establish that the October 4 letter involved
a substantial departure from the truth.' 0
Having confirmed the validity of the election in
Case 10-RC-10126, we hereby affirm the Certifica-
10 We further find that Respondent's objection, considered with the
documentary evidence in the record, does not raise substantial and mate-
rial factual issues warranting a hearing.
tion of Representative issued therein, and we
hereby affirm our Order in Case 10-CA-13000. 1 '
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board affirms its Decision and Order issued
in this proceeding on January 25, 1979 (reported at
240 NLRB 220), and hereby orders that the Re-
spoadent, North Electric Company, Plant No. 10,
Gray, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth therein.
" 240 NLRB 220.
1471