Rolligon Corp.

National Labor Relations Board - Board Decisions

Jan 12, 1981

254 N.L.R.B. 22 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rolligon Corporation and Oil, Chemical and Atomic
Workers International Union, AFL-CIO. Cases
23-CA-7443 and 23-RC-4758
January 12, 1981
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 7, 1980, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent, the
Charging Party, and the General Counsel filed ex-
ceptions and supporting briefs, and Respondent and
the Charging Party filed answering briefs.
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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
In early 1979,1 the Union, Oil, Chemical and
Atomic Workers International Union, AFL-CIO,
began an organizational drive among employees at
the Respondent, Rolligon Corporation. Pursuant to
a petition for an election filed by the Union on
March 6, an election was held on May 10 in Case
23-RC-4758. A majority of votes was cast in favor
of representation by the Union. Respondent filed
timely objections to the election. Based on charges
filed by the Union in Case 23-CA-7443, the Re-
gional Director issued a complaint alleging that
Respondent had engaged in conduct violative of
Section 8(a)(l) of the Act. Thereafter, the Regional
Director issued an order consolidating the repre-
sentation and unfair labor practice cases for a hear-
ing before an administrative law judge.
As set forth fully in the Administrative Law
Judge's Decision, on March 21, Respondent's gen-
eral manager, Herb Asel, delivered a speech to an
assembly of employees. The following is a portion
of that speech:
We appreciate the loyalty and the courage that
many of you have shown. Still others of you
may want this Union to represent you. Em-
ployees who are unhappy here at Rolligon and
who would rather work in a Union shop
would do yourselves, your coworkers, your
supervisors, and this Company a great service
i All dates refer to 1979 unless otherwise indicated.
254 NLRB No. 4
if you would go and find a job where you will
be satisfied. Because the Union is never going
to run this Company. The Union is never
going to be welcome here. We are going to
fight this Union with every means the law
allows.
The Administrative Law Judge found that the
above portion of the speech was not couched in
threatening terms and did not suggest that employ-
ees who wished to be represented by a union
should seek employment elsewhere. Accordingly,
he concluded it was not violative of Section 8(a)(1)
of the Act. We disagree.
We have found that an employer's remarks
which imply that an union activist is unhappy on
the job and therefore should seek work elsewhere
violate Section 8(a)(l) of the Act. 2 In the instant
case, Respondent told an assembled group of em-
ployees that employees who are unhappy and
would rather work in a union shop would do Re-
spondent a great service by finding a job else-
where. We find that such a statement is coercive
and threatening and violates Section 8(a)(1) of the
Act because it conveys the clear message that sup-
port for the Union and continued employment by
Respondent are incompatible.
On March 20, a hearing was held in Case 23-
RC-4744. Prior to the hearing, the Union had sev-
eral organizational meetings wherein it requested
that as many employees as possible attend the hear-
ing. In order to insure that a large number of em-
ployees attended the hearing, the Union distributed
subpenas to approximately 20 of the 40 unit em-
ployees.3 The Administrative Law Judge found,
and we agree, that the subpenas were defective be-
cause they were not accompanied by witness and
mileage fees as required by Section 102.32 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended. See also section 11778,
National Labor Relations Board Casehandling
Manual (Part Two) Representation Proceedings. 4
2 Intertherm. Inc., 235 NLRB 693, fn. 6 (1978); 726 Seventeenth Inc., /a
Sans Souci Restaurant. 235 NLRB 604, 605-606 (1978); and Padre Dodge.
205 NLRB 252 (1973).
3 Lonnie Haynes, the union organizer, testified that a number of em-
ployees had expressed fear that Respondent would retaliate against them
if they attended the hearing. Haynes claims that the Union subpenaed the
employees in order to protect them from reprisals by Respondent.
4We also agree with the Administrative Law Judge that statements
signed by a number of the subpenaed employees indicating that they sup-
ported the Union were ambiguous and insufficient to constitute an explic-
it waiver of the employees' right to witness and mileage fees. We do not
agree, however, with the Administrative Law Judge's recommendation
that the Board should administratively require the Union to pay the sub-
penaed employees witness and mileage fees. The issue of money owed for
witness and mileage fees is a matter between the Union and the subpen-
aed employees that has not been raised by either of those parties and is
not before us in this case. Furthermore, contrary to the Administrative
Law Judge's suggestion, there is no administrative procedure whereby
we could compel such payment.
22
ROLLIGON CORPORATION
When a number of employees presented the sub-
penas to Respondent in order to seek time off to
attend the hearing, Respondent informed the em-
ployees that in Respondent's opinion the subpenas
were invalid because they were not accompanied
by witness and mileage fees and that the employees
were free to dishonor them. However, Respondent
also told the employees that they were free to
honor the subpenas and that no discipline would be
taken if they decided to honor the subpenas. In ad-
dition, Respondent assisted the employees in ar-
ranging a schedule to permit all interested employ-
ees to attend the hearing.
The Administrative Law Judge found that Re-
spondent interfered with the Section 7 rights of its
employees by telling them that they did not have
to comply with the subpenas. We disagree. Unlike
the subpenas in issue in the cases relied upon by
the Administrative Law Judge,5 the subpenas in
issue here were defective on their face, and, there-
fore, Respondent's comments were an accurate de-
scription of the employees' privilege not to comply
with them. In addition, Respondent clearly in-
formed the employees that they were free to honor
the subpenas and that no action would be taken
against any employee who chose to honor the sub-
pena. Accordingly, we find that Respondent's com-
ments were accurate, noncoercive, and did not vio-
late Section 8(a)(l) of the Act.
As set forth above, in order to insure that a large
number of employees attended the hearing, the
Union distributed subpenas to approximately 20 of
Respondent's 40 unit employees. At no point prior
to the hearing did the Union discuss any possible
testimony that it intended to elicit from the subpen-
aed employees, and at the hearing the Union did
not call any of the employees as witnesses. Respon-
dent filed objections to the election contending that
the issuance of subpenas to one-half of the unit em-
ployees was an abuse of the Board's process and
caused employees to believe that the Board fa-
vored the Union.' In agreement with Respondent,
I Richard T Furmney and Naomi P. Furtney, a co-partnership d/b/a Mr.
F's Beef and Bourbon, 212 NLRB 462, 466 (1974); and Bobs Motors In-
corporated, 241 NLRB 1236 (1979). See also Winn.Dixie Stores, Inc.., and
Winn-Dixie Greenville. Inc., 128 NLRB 574, 578-579 (1960).
6 Respondent's objections also alleged that Union Agent Haynes made
statements in the presence of employees that left the impression that he
was acting under Board authority and was a Board agent. In finding that
the Union engaged in objectionable conduct, the Administrative Law
Judge relied in part on his finding that, when Haynes distributed sub-
penas to employees, he used language that gave some impression that
Haynes spoke for the Board. The record, however, does not support this
finding by the Administrative Law Judge. Haynes testified that he stated
in the presence of employees that he was present as an agent of service
and to explain the NLRB subpenas; Haynes denied that he told employ-
ees that he was an NLRB agent. The Administrative Law Judge did not
discredit Haynes nor did he credit Respondent's general manager, Asel.
who initially testified during direct examination that Haynes had stated
he was an NLRB agent. Subsequently, however, Asel testified that
the Administrative Law Judge found that the
Union issued subpenas to one-half of Respondent's
work force in order to create the illusion that the
Union was strong and that the Board was in favor
of the Union, and that such conduct was objection-
able. Accordingly, he recommended setting the
election aside. On the particular facts of this case,
we disagree.
At the outset, we condemn the use by any party
of mass subpenas as a device merely to generate
employee enthusiasm or interest, or to cause mass
employee attendance at Board proceedings. It
clearly has the potential to disrupt Respondent's
production schedule and is, of course, not the pur-
pose for which the Board subpenas were intended.
Subpenas are, on their face, issued to require the
attendance of potential witnesses. Were we per-
suaded that the Union's use of subpenas here con-
fused employees or created the appearance of
Board partisanship or otherwise impacted upon the
exercise of free choice by employees, we would
not hesitate to set aside the election. Our examina-
tion of the record, however, reveals no support for
the conclusion that the Union's ill-considered deci-
sion to subpena employees en masse could reason-
ably have created an impression that the Board fa-
vored the Union or was in league with it. First, as
indicated previously, nothing in the record sup-
ports a finding that when the Union distributed the
subpenas it made any statement or engaged in any
other conduct that could have led employees into
believing that the Board favored the Union. Thus,
the Union's conduct in subpenaing employees en
masse stands alone, unaccompanied by other con-
duct that might have misled employees. Second,
the distribution of subpenas here took place almost
2 months before the election and with the full
knowledge of Respondent. Hence, it can hardly be
Haynes had stated he was there to serve the subpenas and that he, Asel,
could not recall Haynes' exact words. During cross-examination, Asel re-
canted his earlier testimony and admitted that he could not remember
Haynes' exact words and that he did not remember if Haynes had stated
he was an agent of the NLRB. Finally, during redirect examination, Asel
refreshed his recollection by reviewing a prehearing affidavit, and he
then testified that Haynes had stated that he was a representative of the
NLRB. In these circumstances, where the Administrative Law Judge has
not made a credibility ruling and where the objecting party has the
burden of establishing the objectionable conduct, we find that there is in-
sufficient record evidence to support Respondent's objection that Haynes
made statements that gave the impression that he was a Board agent or
was acting with Board authority.
Respondent's objections also allege that immediately after the close of
the representation hearing the Union held a short meeting with employ-
ees at the Board's offices. Respondent contends that the holding of a
union meeting in the Board's offices interfered with the laboratory condi-
tions of the election by conveying the impression that the Board favored
the Union. The record reveals that the union agent requested that em-
ployees who had witnessed an alleged assault on the union agent meet
with him to discuss the incident. There is no record evidence to support
Respondent's contentions that that short meeting conveyed the impres-
sion that the Board favored the Union.
23
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argued that Respondent, if it feared confusion on
the employees' part, did not have sufficient time to
set the record straight and correct any possible
misunderstandings. 7 In much the same vein, if Re-
spondent believed that the en masse subpenaing of
its employees was merely a device to harass it, it
could have brought the matter to the attention of
the Regional Director and requested appropriate
relief. 8
In sum, the issue before us in this case is not
whether the Union acted in an undesirable manner
in subpenaing employees en masse-clearly it did-
but rather whether the Union's conduct interfered
with the laboratory conditions of the election. We
are satisfied it did not; hence we decline to set
aside the election. 9
Unlike the situation where a Board document has been altered (see,
for example, Allied Electric Products, Inc., 109 NLRB 1270 (1954)), or
where the law has been misstated (see, for example, Thiokol Chemical
Corporation. Hall-Way Plant, 202 NLRB 434 (1973), there is no indication
th at the issuance of a Board subpena involves the misrepresentation of
Board actions. The Board issues subpenas in representation matters for all
parties, at their request, and we do not see how the issuance of subpenas
could imply that the Board favored one party or the other.
a In this connection, we note that, consistent with the Board's Rules
and Regulations, the Regional Director's issuance of subpenas upon
proper application is a ministerial act which is largely automatic. Howev-
er, where there is an abuse of the Board's process there is no impediment
to an aggrieved party bringing the matter to the Regional Director's at-
tention and moving to quash. Furthermore, should we discover wide-
spread efforts to abuse our process we will consider sua sponle revisions
of our Rules and Regulations to meet such a problem.
I Indeed, it would be unfair to employees, whose interest after all is
paramount, were we to set aside an election for misconduct of a party
that had no impact on the election results.
Finally, in overruling Respondent's objections, we do not adopt the
Administrative Law Judge's discussion of E. H., Limited, d/b/a Earringh-
ouse Imports, 227 NLRB 1107 (1977), enforcement denied 600 F.2d 930
(D.C. Cir. 1979), a case which we find plainly distinguishable.
Member Truesdale notes that he was not a member of the Board when
Earringhouse issued and that he has not had occasion to pass directly on
the issue addressed by the Board in that Decision. Since he agrees with
his colleagues that Earringhouse is distinguishable on its facts from the in-
stant case, he finds it unnecessary to comment on the result reached by
the Board there.
Member Penello agrees that Earringhouse is "plainly distinguishable"
from the factual situation in this case. The Administrative Law Judge,
however, did not imply otherwise. He accurately and objectively synop-
sized the distinguishing features of Earringhouse, and he did not in any
way rely on the facts, the Board majority's holding, the Board minority's
dissenting opinion, or the D.C. Circuit's holding in that case. The Admin-
istrative Law Judge limited his analysis of Earringhouse to the scenario
discussed in dicta at fn. 21 of the judicial decision. That scenario entailed
in hypothetical terms the precise situation which in fact confronts the
Board herein; i.e., "the issuance of more subpoenas than would ordinarily
be required." Member Penello joins his colleagues in refusing to adopt
the Administrative Law Judge's critique of the D.C. Circuit's views ex-
pressed in fn. 21 of the Earringhouse decision, but Member Penello does
so because the court's views are substantially in accord with the rationale
unanimously expressed by the Board in the body of this Decision. More-
over, although neither the factual nor the legal issues directly involved in
Earringhouse are present in this case, Member Penello emphasizes his
wholehearted endorsement of the D.C. Circuit's Earringhouse decision in
its entirety, a decision which denied enforcement of the Board's Order
and expressly agreed with the dissenting opinion of Member Penello and
former Member Walther.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
of the Act, we shall order that it cease and desist
therefrom, and take certain affirmative action de-
signed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact and
on the entire record in this case, we make the fol-
lowing:
CONCLUSIONS OF LAW
1. Rolligon Corporation is an employer engaged
in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
including draftsmen and parts department employ-
ees, employed at the Company located at 10635
Brighton Lane, Stafford, Texas, but excluding all
professional employees, purchasing assistants, in-
ventory control, customer services, and payroll
clerks, office clericals, leadmen, supervisors, guards
and watchmen as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. By making threatening and coercive state-
ments in a March 21, 1979, speech to assembled
employees, Respondent violated Section 8(a)(l) of
the Act.
5. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
6. Respondent did not engage in any other unfair
labor practices as alleged in the complaint.
7. The Union did not engage in any objection-
able conduct sufficient to cause the election to be
set aside.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Rolligon Corporation, Stafford, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Making threatening or coercive statements to
employees because of their involvement in union
activity.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
24
ROLLIGON CORPORATION
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its place of business in Stafford,
Texas, copies of the attached notice marked "Ap-
pendix." 1 0 Copies of said notice, on forms pro-
vided by the Regional Director for Region 23,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
IT IS FURTHER ORDERED that the remainder of
the complaint be, and it hereby is, dismissed.
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Oil, Chemical and
Atomic Workers International Union, AFL-CIO,
and that, pursuant to Section 9(a) of the National
Labor Relations Act, as amended, the said labor
organization is the exclusive representative of all
the employees in the following appropriate unit for
the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, or
other conditions of employment:
All production and maintenance employees, in-
cluding draftsmen and parts department em-
ployees, employed at the Company located at
10635 Brighton Lane, Stafford, Texas; but ex-
cluding all professional employees, purchasing
assistants, inventory control, customer ser-
vices, and payroll clerks, office clericals, lead-
men, supervisors, guards and watchmen as de-
fined in the Act.
10 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 Pursu-
ant 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
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives all employees the following
rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT interfere with, restrain, or
coerce our employees with regard to the
above rights by telling employees that if they
are unhappy and would rather work in a union
shop they would do themselves and the Com-
pany a great service by seeking a job else-
where.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
ROLLIGON CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me at Houston, Texas, on October
24, 1979,' pursuant to a complaint issued by the Region-
al Director of the National Labor Relations Board for
Region 23 on June 8. In addition, on June 12, the Re-
gional Director ordered consolidated certain issues aris-
ing from a representation election in Case 23-RC-4758.
The complaint, based upon a charge filed on March 23
by Oil, Chemical and Atomic Workers International
Union, AFL-CIO (herein called the Union), alleges that
Rolligon Corporation (herein called Respondent) has en-
gaged in certain violations of Section 8(a)(1) of the Na-
tional Labor Relations Act.
The Union's representation petition was filed on
March 6 and sought a representation election among Re-
All dates herein refer to 1979 unless otherwise indicated.
25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's production and maintenance employees. The
Regional Director ordered an election in a Decision and
Direction of Election issued April 10. The election was
held on May 10 and a majority of votes was cast in favor
of representation by the Union. Objections to conduct af-
fecting the outcome of the election were timely filed by
Respondent on May 16.
Issues
1. Whether or not the Union abused its right to sub-
pena employees to attend the representation hearing
either by one of its officials misrepresenting his authority
to employees, by subpenaing virtually all of Respon-
dent's employees causing a plant shutdown where there
was no legitimate purpose in causing their absence from
work, or by misleading employees to believe that the
NLRB endorsed representation by the Union.
2. Whether or not Respondent violated Section 8(a)(l)
by interfering with the subpenas issued by the Union or
violated the act by threatening employees with loss of
various benefits in the event they chose to be represented
by the Union.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the Union and Respondent. The General Coun-
sel did not file a brief.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits it is a Texas corporation engaged
in the manufacture of off-road vehicles and tires, having
a factory located in Stafford, Texas. It further admits
that during the past year, in the course and conduct of
its business it has purchased and received goods and ma-
terials valued in excess of 50,000 from suppliers outside
Texas. Accordingly it admits, and I find, it to be an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, the Union to be a labor
organization within the meaning of Section 2(5) of the
Act.
Ill. THE FACTS
As noted, Respondent operates a factory in Stafford,
Texas, a Houston suburb, where it manufactures off-road
vehicles, which are generally utilized in remote areas in
such ventures as oil exploration and construction. It also
manufactures special, large tires for use on those vehi-
cles. Its operation is principally divided into two divi-
sions, the "fab" shop where the vehicles are manufac-
tured and the tire plant where tires are built. In addition,
it employs several people in its parts and receiving and
shipping departments and has office and engineering
staffs. Altogether it employs approximately 50 people, of
which about 40 are in the bargaining unit found appro-
priate by the Regional Director.
Respondent's vice president and general manager is
Herb Asel. The director of its tire division is vice presi-
dent Thomas Novak; the manufacturing superintendent
at the time in question was Rex Hartman and its parts
department and shipping and receiving manager is Timo-
thy Deyton. The principal Union official involved here is
International Organizer Lonnie Haynes.
Most of the facts are not in significant dispute and re-
volve around the filing of two representation petitions
during the early part of 1979.
The first petition was filed by the Union in January. A
hearing was conducted shortly thereafter and one of the
issues which was litigated was the supervisory status of
an employee named Allen Albee. On February 28 the
Regional Director issued his decision in that matter,
Case 23-RC-4744, and directed an election. He found,
however, contrary to the Union's contention, that Albee
was a supervisor and not eligible to vote in the election.
Subsequently, it was discovered that Albee was the
Union's principal board solicitor and that his participa-
tion in the organizational drive may have "tainted" the
authorization cards. As a result, the Director asked the
Union to withdraw its petition under the threat of dis-
missal if it failed to do so. The Union complied and
began resoliciting authorization cards in order to support
a new petition.
The second petition, Case 23-RC-4758, was filed on
March 6 and a hearing scheduled for March 20. Respon-
dent moved both prior to and at the hearing to dismiss
the second petition on the grounds that the organization-
al drive was still tainted and because it believed the
Union should not be permitted to file a second petition
within 6 months of the first. See Sears, Roebuck & Com-
pany, 107 NLRB 716 (1954), and section 11114.1b of the
Board's Casehandling Manual, Representation Cases. Ac-
cordingly, it insisted upon a hearing so those arguments
could be made.
Union organizer Haynes, believing that Respondent
had utilized deceit to "convert" Albee from a statutory
employee to a statutory supervisor, was determined that
such an incident would not occur again. He called sever-
al meetings of employees held at two restaurants within
the 2-week period preceding the second hearing. At
those meetings he explained to those present the difficul-
ty the Union was having with Respondent and suggested
that to counter similar deceit it would be a good idea to
have as many employees present at the second hearing as
possible. According to him, some of the employees ex-
pressed fear that Respondent would engage in a reprisal
against them if they attended the hearing. He pointed out
that if they were subpenaed, their attendance would be
compelled by law and Respondent could do nothing to
punish them. As a corollary to that, however, he ob-
served that the Union did not wish to spend a lot of
money on statutory witness and mileage fees and he
asked employees to volunteer their services.
26
ROLLIGON CORPORATION
Beginning on approximately March 15 and continuing
even in the early morning of March 20, the day of the
hearing, Haynes and an associate, perhaps assisted by
others, distributed 20 subpenas, usually at the plant en-
trance. As a result of this effort the Union managed to
serve subpenas on nearly every employee in the fab and
tire shops. During the same time frame, employee David
Hobbs, and perhaps another union official, separately so-
licited signatures on a form which Haynes, at least, con-
sidered to be waiver of the subpenaed employee's right
to witness and mileage fees. The statement reads:
This is to acknowledge that I, the undersigned,
have been duly subpenaed by the Oil, Chemical and
Atomic workers International Union, AFL-CIO to
appear as a witness in the NLRB hearing on Rolli-
gon Corporation. Be it further known that I will
volunteer my services in order that the principles of
justice are served.
One employee, Clem Carter, who appeared to be of
average intelligence, testified that he had not signed a fee
waiver. When shown a copy of the foregoing document,
Carter agreed he had indeed signed that paper. Since it
was not presented to him simultaneously with the sub-
pena, I believe it fair to conclude that he did not under-
stand the purpose of the document. When read conjunc-
tively it is not a model of clarity. Nowhere does the
statement say the signer is specifically waiving a statu-
tory right to witness and mileage fees. If read disjunc-
tively the "volunteer" language could easily refer to
some other organizing service. Under traditional
"waiver" law such statements are deficient as not being
clear and unmistakable. 2
The Union did not interview any employee in order to
determine what sort of testimony he would give at the
hearing. Welder Dan Ray and Carter testified no union
official explained why they were subpenaed. That, of
course, raises the question of why the Union subpenaed
such a large number of employees if it had no intention
of calling them to testify. If the Union truly wanted
them to testify about factual material, the official han-
dling the Union's presentation before the hearing officer
presumably would have at least interviewed these indi-
viduals with regard to facts which they could describe.
In any event, on March 19, those employees who had
been subpenaed presented their subpenas to their fore-
men in order to seek time off for the following day. Not
suprisingly, that touched off a company response. Man-
ager Asel consulted with Respondent's attorneys about
the situation and then Hartman and Novak conducted
meetings in their respective shops. Although there is
some dispute over the words which were actually used,
it appears to be fair synthesis of the testimony of various
witnesses that they told employees that in Respondent's
opinion the subpenas were invalid because they were not
accompanied by witness and mileage fees and the em-
ployees were free to dishonor them. Further, however, it
I See, e.g., The Timken Roller Bearing Co. v. N.LR.B., 325 F.2d 746
(6th Cir. 1963), cert. denied 376 U.S. 971 (1964); Texaco. Inc. v.
N.LR.B., 462 F.2d 812 (3d Cir. 1972); Gary-Hobart Water Corporation,
210 NLRB 742 (1974); and Rose Arbor Manor. 242 NLRB 795 (1979).
appears both Hartman and Novak told the employees
that Respondent did not wish to prohibit them from at-
tending the hearing and if they wished to do so Respon-
dent would arrange a means by which all interested em-
ployees could be scheduled to go and observe at least
portions of the proceeding. Each shop set up a schedule
whereby two employees per hour could leave the plant
to go to the NLRB office in downtown Houston.3
According to Hobbs, who worked in the tire plant,
Novak also said he did not like unions, did not want one
in the plant, and stated that if a union came into the
plant employees would lose fringe benefits such as paid
sick leave and paid vacation. In addition, employees
would probably lose wages and there would be no more
friendship between the workers and management. On
cross-examination Hobbs denied Novak was simply ex-
plaining the manner in which collective bargaining
worked but did say Novak told the group "we could end
up with fewer benefits." He denies Novak said employ-
ees could end up with more.
Novak said he told the tire plant employees about an
experience he had had when he worked at Goodyear
Tire & Rubber Co. He said he explained how collective
bargaining worked and cited an example which had oc-
curred at Goodyear. According to him Goodyear had,
before union representation, provided 5 days sick leave
to its employees, but after the union became the repre-
sentative it negotiated a contract in which that benefit
was lost, He told the tire plant employees that negotia-
tions could result in more benefits, less benefits, or the
same benefits. He specifically denied telling employees
that unionization would result in less or that unionization
would result in no more friendship. He said he even
cited an example at Goodyear in which the union had
protected an employee whom that company had tried to
fire for incompetence.
Ray originally testified that Hartman, in the fab shop,
told employees that the Union would not do Respondent
any good and a newly granted benefit package would be
taken away. He remembered Hartman saying that negoti-
ations would mean that the parties would "start over
again on our benefit package" and employees would lose
all accrued vacation and start over "from the bottom."
On cross-examination he conceded that in using the
phrase start over Hartman was explaining that the Com-
pany and the Union would move to bargain over fringe
benefits and that employees could get less-that it de-
pended on the progress of negotiations.
Supervisor Deyton remembered an employee asking
about negotiations after Hartman was finished explaining
the subpena matter. He remembered Hartman saying ne-
gotiators for both sides would sit down and "line by
line" work out a contract. According to Deyton, Hart-
man said fringe benefits depended on the outcome of ne-
gotiations; the employees could end up with less or
more. He said Hartman never said employees would end
up with less if the Union came in and never threatened
any loss of fringe benefits. Further, he said Hartman
never said anything to the effect that benefits set forth in
3 Respondent did not notify the Union of its proposed action here.
Likewise, the Union did not tell Respondent what its purpose was.
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employee handbook would be taken away. He admits
Hartman told employees that the negotiators would start
with a "blank piece of paper" but said that was the be-
ginning of the negotiations which would take place on
that piece of paper, "line by line."
Frankly, I am unimpressed with the evidence adduced
by the General Counsel in both incidents. I was not at all
persuaded by Hobbs' veracity. Moreover, both Novak
and Deyton, corroborated in good part by the General
Counsel's witness, Ray, appeared far more credible.
Hobbs seemed to be biased against Respondent and had a
tendency to exaggerate and omit. Accordingly, his testi-
mony is not credited. I conclude that the General Coun-
sel has failed to prove the allegations relating to threat-
ened loss of benefits or privileges.
On March 20, at approximately 7 a.m., Lonnie Haynes
arrived at Respondent's parking lot with some subpenas
which he had not yet served. He said he was also there
to explain the Union's position with respect to the valid-
ity of the subpenas which had already been served;
Hobbs had called him the day before to tell him that Re-
spondent was claiming the subpenas were no good and
was telling employees not to go to the hearing. Shortly
after Haynes' arrival, General Manager Asel also ap-
peared and the two had a verbal confrontation. Asel told
Haynes to leave the parking lot as he was trespassing;
Haynes responded asserting that he had a legal right to
be there because "I'm acting as an agent of service and
explanation of the NLRB subpenas." Each individual ac-
cused the other of making physical threats. Asel, not cer-
tain if Haynes had a legal right to be there, said he
would call the police. Both were interrupted by the arri-
val of another person who, at the very least, challenged
Haynes who then went to the street to greet arriving em-
ployees. Asel went inside the plant.
As employees arrived for work that morning they
were greeted by Haynes who told them their subpenas
were valid and they could honor them. The employees
then entered various vehicles snd carpooled themselves
to the NLRB office, following Haynes' lead. Upon their
arrival at the NLRB hearing room, they were spoken to
by Haynes and another organizer. It is not exactly clear
what was said to the employees but it appears that the
union officials gave a short explanation of what was hap-
pening, said that they were "glad you're here" and
thanked the employees for coming down.
The hearing itself was conducted in summary fashion
as Respondent stipulated that the factual material ad-
duced in the earlier hearing could be utilized to decide
the instant petition. Respondent made its arguments re-
garding the propriety of proceeding with the second
case. At that point, the Union's representative asked that
the subpenas of each of the employees who were present
be entered as part of the record; the Hearing Officer
denied that request but permitted the Union to place a
list of those employees' names in the rejected exhibit file.
The union official explained the Union's purpose by
saying: "We want it in there as a matter of record be-
cause of action taken by the Company in the last day in
regard to this, and we will handle that in the proper
manner through the Board procedures."
The hearing ended after only 12 pages of transcript
and without any witnesses being called to testify. Be-
cause of the verbal altercation between Asel and Haynes
which had occurred that morning, and because Haynes
claimed he had suffered an injury from an assault by an
employee of a nearby company and he believed the as-
sault was based on instructions from Respondent, he
asked those employees who had witnessed the incident
to remain at the Board office and give statements to
Board investigators. As all the employees had carpooled
to the Regional Office, everyone was required to stay
while they waited for their associates to finish being in-
terviewed.
In the meantime, due to the large number of employ-
ees who had gone to the hearing instead of going to
work, Respondent was effectively shut down. Those few
employees who did report were unable to accomplish
anything. Finally, when the employees left the Board
office and returned to the plant, Respondent's manage-
ment told them to come to work the next day because
there was nothing which could be accomplished during
the remaining hours.
On the following day, March 21, Asel called all of the
employees from both shops together and conducted a
meeting. He read a speech and also answered a few ques-
tions. The complaint alleges that he made statements
which would lead employees to believe that unionization
would be a futile act and that union activities were in-
compatible with continued employment at Respondent.
In support of these allegations the General Counsel ap-
parently relies on the testimony of Dan Ray who said
Asel told them that the Union was no good and not wel-
come and that the Company would do anything in its
power to keep it out.
Asel's speech referred to the subpena incident the pre-
vious day and accused the Union of having caused ev-
eryone a loss of time and money, causing trouble and
hard feelings. He also observed that without the Union
the Company had grown and prospered and that man-
agement did not have any intention of permitting the
Union to destroy the Company. Asel ended with the fol-
lowing paragraph:
We appreciate the loyalty and the courage that
many of you have shown. Still others of you may
want this Union to represent you. Employees who
are unhappy here at Rolligon and who would
rather work in a Union shop would do yourselves,
your coworkers, your supervisors, and this Compa-
ny a great service if you would go and find a job
where you will be satisfied. Because the Union is
never going to run this Company. The Union is
never going to be welcome here. We are going to
fight this Union with every means the law allows.
Because of the detailed evidence presented by Respon-
dent here, I must discredit Ray. His recollection is in-
complete and without the contextual detail shown by
Respondent. As with the earlier speeches by Hartman
and Novak, I am unable to find anything in this speech
which is violative of the Act. It is true that the above-
quoted paragraph contains some tough-minded language.
28
ROLLIGON CORPORATION
Nonetheless, the fact that Respondent took a hard line
against unionization does not require the conclusion that
it was willing to break the law with regard to employee
rights. Respondent merely stated it intended to use
lawful means to oppose unionization. In no way did Asel
imply that unionization would be a futile act. Further-
more, his suggestion that employees who wished to be
represented by a union seek work elsewhere was not
couched in threatening terms, either direct or implied. It
is true that Asel said the Union would never be welcome
but that simply means that Respondent did not wish to
give up any of its entrepreneurial perogatives to bargain-
ing. That is a step away from implying that it would
refuse to bargain or that unionization would be futile.
Accordingly, I conclude there is a failure of proof with
respect to those allegations.
IV. ANALYSIS WITH RESPECT TO THE SUBPENA
ISSUES
Two specific issues are presented regarding the
Union's use of subpenas in the representation case: first,
whether or not it abused its right to utilize subpenas and
if so if the election should be set aside; second, whether
or not Respondent had any legal right to interfere with
the Union's use of subpenas even if the Union was en-
gaging in an abuse of process.
With respect to the first issue, I conclude the Union
had no legitimate purpose in subpenaing all but a few of
Respondent's production and maintenance employees.
The Board has not articulated any test to determine
when suhpenas have been misused. Nonetheless, a certain
guidance may be found in the subpena enforcement
cases. In Endicott Johnson Corp. v. Perkins, 317 U.S. 501,
509 (1943), the Supreme Court observed that subpenas
must be "not plainly incompetent or irrelevant to any
lawful purpose of [the party issuing the subpenas.]" See
also N.L.R.B. v. Frederick Cowan and Company, 522
F.2d 26, 28 (2d Cir. 1975). The question therefore is
whether the Union's purpose was incompetent or irrele-
vant to the issues in the representation case. I hold that
the Union's purpose in subpenaing the 20 production and
maintenance employees fails to meet that standard.
Employee Clem Carter testified Haynes never told
him why he was being subpenaed, never told him he was
to be a witness and never interviewed him regarding po-
tential testimony. Employee Luis Afre said Haynes told
him he could expect to be subpenaed so he could attend
the hearing without fear of Respondent's disciplining
him. He was not told he would be a witness and was not
interviewed with respect to potential testimony.
It seems clear that the Union had no reason to believe
that the issues in the second representation case would
be decided differently from the first. Moreover, there is
no evidence, except Haynes' assertion, that Respondent
in the earlier hearing had engaged in deceit in its claim
that Albee was a statutory supervisor.
It seems to me, therefore, that all the Union needed
was one or two knowledgable employees to assist it in
presenting its case. To determine who those employees
were would have required little effort on its part. If,
during the hearing, something unusual had occurred
there is no doubt that sufficient time would have been al-
lowed to obtain appropriate witnesses.
Haynes, however, acted at a tangent to those con-
cerns. He subpenaed 20 employees, 19 of whom ap-
peared. Two said they appeared only because of the
command of the subpena and feared sanctions if they had
failed to comply.4 They were not aware that the Union
had no intention of enforcing the subpenas. Carter was
unaware that Haynes had supposedly said that their pres-
ence was to counter Respondent's expected trickery or
that his presence was "voluntary"--the word used in the
waiver form. Yet Haynes claims it was the employees
who wanted to attend. He even concedes that when he
learned their desire he suggested that subpenas would
protect them.
Combined with the foregoing, however, is Haynes' ad-
mission that in the early morning of March 20 he told
Asel, in the presence of employees, that he was present
as "an agent of service and explanation of the NLRB
subpenas." Asel recalls Haynes saying he was an "NLRB
agent." Whether or not Asel's version is credited, it is
clear that Haynes used language which gave some im-
pression that he spoke for the Board. His "explanation"
had the color of Board authority. Thus his assertion that
the subpenas were valid was intended to be considered
more authoritative than Respondent's whose assertion
was to the contrary.
Based on these facts I find that Haynes subpenaed Re-
spondent's work force in order to create the illusion-di-
rected at both undecided employees and Respondent-
that the Union was strong and as specifically approved
by the National Labor Relations Board. Indeed, it was
contrived in such a way as to cause what appeared to be
a Board-approved and protected organizational work
stoppage, for the Board-issued subpenas gave the em-
ployees a legal shield they would not otherwise have
had. The subpenas were therefore issued for incompetent
and irrelevant purposes. 5
This scenerio appears to me to be exactly the case
about which the District of Columbia Court of Appeals
was warned in Service Employees International Union,
Local 250, AFL-CIO (E. H. Limited d/b/a Earringhouse
Imports) v. N.L.R.B., 600 F.2d 930, 938, fn. 21 (1979). In
the Earringhouse situation subpenas were not issued by
the petitioning union but virtually all of the employer's
employees left work to attend the representation case
hearing. The company had attempted, as Respondent did
here, to accomodate employees who wished to attend
the hearing. The employees disregarded the employer's
directive to remain at work, attended the meeting, and
were discharged as a disciplinary measure. The Board
found that the employees were discharged for attending
the Board hearing and ordered their reinstatement. The
court reversed, holding that in balancing the employees'
rights against the employer's rights there was no viola-
4 Only four employees testified.
5 The vagueness of the waiver forms, too, is evidence that Haynes was
being less than candid with the employees. He seems to have been mis-
leading employees into waiving their right to fees by not informing them
what that right was. If he was willing to mislead there, it is also likely
that he was trying to mislead them in the parking lot regarding his au-
thority-again by imprecise, but carefully couched language.
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. In dealing with the Board's dissenting opinion,6 the
court majority observed that even though there were no
subpenas in that case the result might have been different
had the employees been so served. Then it stated in foot-
note 21:
We recognize that the adoption of the Board mi-
nority view may result in the issuance of more sub-
poenas than would ordinarily be required. It is sug-
gested that union counsel may subpoena all employ-
ees of a given employer. We have more faith in
union counsel handling labor matters and, should
that occur, the ALJ [hearing officer?] may revoke
the subpenas or otherwise impose sanctions.
It is apparent that this Union (which is not represented
by counsel) did not meet the level of trust expected by
the court of appeals. Moreover, these facts demonstrate
the difficulties that any responsible party would have to
prevent the situation from occurring. The court suggest-
ed that the hearing officer in the representation case
could revoke the subpenas. As a practical matter, how-
ever, that can be done only if the subpenaed employee is
aware of his right to petition to revoke and does so in a
timely fashion. Here, at least some of the subpenas were
issued on the day of or the day before the hearing and
the employees had no reasonable means to seek to
revoke the petition even if they were aware of their right
to do so. The Regional Director was in a precarious po-
sition not wishing to interfere with what might be a
lawful need and in any event was inhibited from doing
so since the issuance of subpenas in this circumstance is a
ministerial act in which he could not interfere. See Sec-
tion 102.31(a) of the Board's Rules and Regulations, D.
B. Lewis, et al. v. N.L.R.B., 357 U.S. 10, 14 (1958), and
Free-Flow Packaging Corporation, 219 NLRB 925, 926
(1975). In both cases it was held that the issuance of sub-
penas was a ministerial act involving no exercise of dis-
cretion. That being so, the Regional Director has no au-
thority to police misuse of the subpenas under current
Board rules.
If one compares the Board's subpena rules with the
rules of court, one can readily see that while both have
the right to quash or revoke, the courts also have the
power to hold in contempt persons who abuse that pro-
cess. The Board, through its administrative law judges
and its hearing officers, has no such authority. How
then, may the Board protect its processes from such
abuse? Under current rules it appears it cannot and its in-
ability to do so can easily result in a situation such as oc-
curred here. Respondent had no standing to complain
about the subpenas except by objections to the election;
the employees had neither time nor sufficient knowledge
to exercise their right under the rules; and the Director
had no authority. Moreover, by the time the employees
reached the hearing room, even if they had chosen to
seek revocation of their subpenas, the damage was al-
ready done. Accordingly, I recommend that the Board
study this problem and consider rule-making in this area
to prevent further abuse from occurring.
6 227 NLRB 1107, 1113-14, frn. 24 (1977).
In the meantime, however, I shall recommend that the
election be set aside on the grounds that the Union
abused its right to subpena employees and thereby made
it appear as if the Board either endorsed the Union's
tactic or had enleagued itself with the Union in some
fashion. The Board and its agents must be, and at all
times also must appear to be, neutral. By wrapping em-
ployees in the protection of the Board's subpenas in
order to cause a work stoppage, the Union misled em-
ployees into believing that the Board endorsed both the
Union's sought-after representational status and the work
stoppage. For that reason, Respondent's objections
should be sustained and the election should be set aside.
Allied Electric Products, Inc., 109 NLRB 1270 (1974);
Rebmar, Inc., 173 NLRB 1434 (1968); GAF Corporation,
234 NLRB 1209 (1978); Columbia Tanning Corporation,
238 NLRB 899 (1978).
There remains for consideration the second issue, the
allegation that Respondent improperly interfered with
the subpenas. Aside from the question of whether or not
the Union was engaging in an abuse of process, one must
bear in mind that the subpena is an important tool of
those public bodies charged with fact finding-both
courts and administrative agencies. The integrity of the
subpena process must be left unfettered and not inter-
fered with. Indeed, the Board has previously held that
when an employer informs an employee that he need not
comply with a Board subpena, or when it advises the
employee that he is "free to suit himself in deciding
whether to go or not to go to a Board hearing in re-
sponse to the commands of subpena, such statements
constitute unlawful interference with the Section 7 rights
and are a violation of Section 8(a)(1) of the Act." Rich-
ard T Furtney and Naomi P. Furtney, a Co-partnership d/
b/a Mr. F's Beef and Bourbon, 212 NLRB 462, 466
(1974), and Bobs Motors, Incorporated, 241 NLRB 1236
(1979). It was not within Respondent's realm of responsi-
bility to make judgments about the subpenas' validity or
to suggest conduct inconsistent with their command. Ac-
cordingly, I conclude that statements made by Novak
and Hartman on March 19 to the effect that the subpenas
were invalid and need not be honored violated Section
8(a)(l).
V. THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(1) of the Act by interfering with the Board's sub-
pena power, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.7
Upon the foregoing findings of fact, and upon the
entire record in this case, I make the following:
7 In addition, I recommend that the Board administratively require the
Union to comply with Board Rule 102.66(g) by paying the subpenaed
employees the statutory witness and mileage fees.
30
ROLLIGON CORPORATION
CONCLUSIONS OF LAW
I. The Respondent, Rolligon Corporation, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union, by abusing the subpena power of the
Board, interfered with the outcome of the election by
misleading employees into believing that the National
Labor Relations Board endorsed both the Union's repre-
sentational status and the Union's prehearing work stop-
page.
4. Respondent, acting through its agents Thomas
Novak and Rex Hartman violated Section 8(a)(l) on
March 19, 1979, by advising employees that the subpenas
which had been served upon them were invalid and that
they need not be honored.
5. Respondent did not engage in any other unfair labor
practices as alleged.
[Recommended Order omitted from publication.]
31