Standard-Toch Chemicals, Inc.

National Labor Relations Board - Board Decisions

May 25, 1953

104 N.L.R.B. 1120 (N.L.R.B. 1953)

1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The nonelectrical work performed by these employees
consists of pipefitting duties, including cutting, reaming, thread-
ing, and fitting pipe, maintenance of the steam-heating system,
insulating pipe, painting pipe, making mechanical repairs,
and unloading acid cars.
In view of the foregoing, we find that the maintenance
electricians are not a homogeneous , cohesive group of crafts-
men entitled to separate representation.?. We accordingly
find that a unit of maintenance electricians, or, in the alter-
native , a unit of maintenance electricians and pipefitters,
is inappropriate for the purposes of collective bargaining,
and shall dismiss the petition herein.
ORDER
IT IS HEREBY ORDERED that the petition herein be, and
it hereby is, dismissed.
2 E. 1. DuPont de Nemours and Company, Inc., 85 NLRB 1301; Columbia Southern Chem-
ical Corporation, 97 NLRB 1555.
STANDARD-TOCH CHEMICALS, INC., and LOCAL 781, IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL; AND LOCAL 950, BROTHERHOOD OF PAINTERS,
DECORATORS AND PAPERHANGERS OF AMERICA, AFL.
Case No. 13-RM-143. May 25, 1953
DECISION AND CERTIFICATION OF RESULTS OF
ELECTION
Pursuant to a stipulation for certification upon consent
election, an election by secret ballot was conducted in the
above-entitled proceeding on November 25, 1952, under the
direction and supervision of the Regional Director for the
Thirteenth Region, among the employees in the agreed unit.
The tally of ballots issued after the election showed that, of
the approximately 70 eligible voters, all cast ballots, of
which 33 were for the Union, 36 were against the Union, and
1 was challenged.
On December 1, 1952, the Union filed objections to the
election. Thereafter, in accordance with the Board's Rules and
Regulations, the Regional Director conducted an investigation
and on December 31, 1952, issued and duly served upon the
parties a report, on objections, and on January 5, 1953, an
amendment to report on objections. In his report as amended,
the Regional Director recommended that a hearing be held
with respect to the alleged lack of secrecy of the ballot and
that the Union's remaining objections be overruled. On January
12 and 13, 1953, respectively, the Employer and the Union
filed exceptions to the Regional Director's report and recom-
104 NLRB No. 152.
STANDARD- TOCH CHEMICALS, INC 1 121
mendations.i Subsequently, on February 13, 1953, the Board
issued an order finding that the Union's objections relating
to the alleged lack of secrecy of the ballot and to the alleged
promise of benefit by the Employer's plant superintendent
raised substantial and material issues of fact, directing that
a hearing be held thereon, and remanding the case to the
Regional Director for that purpose.
Pursuant to the Board's order, a hearing was held in
Chicago, Illinois, on March 5, 1953, before Richard B.
Simon, hearing officer. Both the Union and Employer ap-
peared and participated. On April 3, 1953, the hearing officer
issued and had served upon the parties his report on ob-
jections with •findings and recommendations, a copy of which
is attached hereto, in which he recommended that the ob-
jections be dismissed. The Union timely filed exceptions
to the hearing officer's report on objections.
The Board' has reviewed the rulings made by the hearing
officer at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the hearing officer's report, the exceptions there-
to, and the entire record in this case, and adopts the hearing
officer's findings and recommendations with the following
additions:
The hearing officer found, and we agree, that sufficiently
high standards of election conduct and secrecy were maintained
in the election and that the evidence failed to establish any
improper promise of benefit by the Employer. The Union's
exceptions to these findings by the hearing officer refer
essentially to his alleged erroneous credibility resolutions.
However, as the Board has frequently held, the hearing
officer in proceedings of this type occupies a position com-
parable to that of a Trial Examiner in an unfair labor practice
proceeding and, as he has the opportunity to observe the
witnesses ' demeanor and hear their testimony,. we attach
great weight to his credibility findings. The Board will not
overrule such findings unless the preponderance of all the
relevant evidence convinces us that he is incorrect.3 We
are not persuaded that the hearing officer's findings in this
case are incorrect.,
In its exceptions to both the Regional Director's and
hearing officer's report, the Union further contends that the
election should be set aside because the election was held
in the area of the stock bins rather than the paint grinding
room as provided in the stipulation for certification upon
i Both the Employer and the Union excepted to the Regional Director's recommendations
that a hearing be held on the secrecy issue . The Union further excepted to the Regional
Director 's recommended overruling of its objections relating to the change of voting situs
and the alleged promise of benefit by the Employer . No exception was taken to the Regional
Director ' s recommendations that the Union's remaining objections be overruled and accord-
ingly those recommendations are hereby adopted.
2Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three- member panel [Members Houston, Styles, and
Peterson].
sThe American Envelope Co., 97 NLRB 1541, and cases therein cited.
1 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consent election. We find no merit in this contention. The
observers of both parties acquiesced in the change in voting
situs . Moreover, as found by the Regional Director, all the
employees on the eligibility list voted and thus no one was
deprived of an opportunity to vote by the change in voting
place. We conclude, therefore, as did the Regional Director,
that the change in the voting place did not constitute a material
alteration of the terms of the stipulation and affords no basis
for setting aside the election.4
Upon the entire record in this case , the Board makes the
following findings of fact:
1. The Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
2. The Union is a labor organization within the meaning
of the Act.
3. The following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All production and maintenance employees at the Em-
ployer's Chicago, Illinois, plant, excluding office and clerical
employees, salesmen, laboratory and professional employees,
guards, and supervisors as defined in the Act.
Because we have overruled the Union's exceptions, and
because the tally of ballots shows that the Union lost the
election, we shall issue a certification of results of election
to this effect.
CERTIFICATION OF RESULTS OF ELECTION
IT IS HEREBY CERTIFIED that a majority of the valid
ballots has not been cast for Local 781, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL; and Local 950, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL, and that the
said labor organization is not the exclusive representative
of the employees of the Employer, in the unit heretofore
found appropriate, within the meaning of Section 9 (a) of the
National Labor Relations Act.
4See Westinghouse Electric Corporation, 91 NLRB 955, 962; cf. N L. R B v. Huntsville
Mfg. Co., 204 F. 2d 430 (C. A. 5), enforcing 99 NLRB 713.
Hearing Officer's Report On Objections With Findings And
Recommendations
Pursuant to a stipulation for certification upon consent election, entered into on November
12, 1952, by Standard-Toch Chemicals, Inc., hereinafter referred to as the Company, and
joint petitioners, Local 781, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, and Local 950, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL, hereinafter referred to as the Union, an election was con-
ducted in the above-captioned case under the supervision of the Regional Director for the
Thirteenth Region on November 25, 1952, among the production and maintenance employees
of the Company, excluding office and clerical employees, salesmen, laboratory and profes-
sional employees, guards, and supervisory employees as defined in the Act The results of
the election were as follows:
STANDARD-TOCH CHEMICALS, INC. 1123
Approximate - number of eligible voters 70
Void ballots .. ...... .. ..... 0
Votes cast for Local 781, I.B.T. and Local 950, Paint Makers, AFL... ... 33
Votes cast against participating labor organizations . ..... 36
Valid votes counted ... ..... .... ... ............... ... ................... 69
Challenged ballots .. ........ . . ....... ..... . .. ... .. ................ 1
Valid votes counted plus challenged ballots 70
On December 1, 1952, objections to election were filed by the Union, a copy of which was
duly served on the Company, and the Regional Director The objections were as follows:
1. The election and the balloting was not properly conducted and the conditions neces-
sary to a fair and orderly election were lacking , in that.
(a) The Unions were not furnished with or given a reasonable opportunity to examine
a list of the eligible voters prior to the election The Unions were not afforded a chance
to check the eligible list . Despite many promises , the Company did not supply an eli-
gibility list to the Unions. When the Unions took up the question of examining the eligibility
list with the Regional Office, they were told that the Field Examiner was out of town and
the Unions could not go over the list.
(b) The Unions had no reasonable opportunity to challenge voters and a fire marshal
and other ineligible employees were permitted to vote.
(c) The Board did not bring out booths , to make possible secret voting , nor did the
Company supply voting booths Voters did not cast their ballots in secret and employees
were able to watch one another vote and could see how the ballots were being marked.
(d) The polling place was changed and the election did not take place in the location
agreed upon or set forth in the Notices of Election.
(e) The request of the Unions for two observers was refused by the agent for the Board,
despite the fact that the change in the polling place and the impossibility of any advance
checking of the payroll list made two observers reasonable and necessary to preserve
the proper standards for a Board election.
2. The Company, by its supervisors and agents , questioned and interrogated its em-
ployees concerning their union sympathies.
3 The Company made statements and issued leaflets which restrained and coerced
employees and made it impossible for eligible employees to exercise a free choice in
the election
4 The Company, by its supervisors and agents , made threats of reprisal and prom-
ises of benefits and on about the day before the election stated that if the employees went
along with the Company they would receive a raise
On December 31. 1952, the aforementioned Regional Director , after investigating the ob-
jections , issued his report on objections , recommending that the Board overrule all of the
Union's objections with the exception of No 1 (c), and further recommending that a hearing
be ordered by the Board , in order to resolve the question of fact raised in this objection
Subsequently , both the Company and the Union filed exceptions to the Regional Director's
report on objections , the Company's exceptions being filed on January 9, 1953, and the
Union's exceptions on January 12, 1953.
On February 13, 1953, the Board issued its order directing hearing , finding that the
Union's objections Nos. 1 ( c) and 4 raised substantial and material issues of fact, and order-
ing that a hearing be held, " insofar as the objections relate to the alleged lack of secrecy
of the ballot and the alleged promise of gain made by the plant superintendent ." Pursuant to
notice , a hearing was held in Chicago , Illinois , on March 5, 1953 , before Richard B. Simon,
the undersigned hearing officer , duly designated to conduct such hearing . Each party was
represented by counsel who participated in the hearing Full opportunity to be heard, to
examine and cross - examine witnesses , and to introduce evidence pertinent to the issues was
afforded all parties . The parties waived oral argument . Thereafter , pursuant to leave granted
to all parties , the Company , on March 25 , 1953, filed a brief, which has been duly considered.
The order directing hearing required that the hearing officer "shall prepare and cause to
be served upon the parties a report containing resolutions of the credibility of witnesses, find-
ings of fact , conclusions and recommendations to the Board as to the disposition of said
objections ." In substance , the issues raised by the objects are:
1. Was there secrecy of the ballot in the election on November 25, 1952?
2. Did the Company's plant superintendent promise benefit to any of the Company's
employees prior to the election? i
i In accordance with the order of the Board , directing hearing, this report does not deal
with any of the other issues raised in the original objections.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observations of the witnesses, the under-
signed makes the following resolutions of credibility of witnesses.
FINDINGS OF FACT
I. THE ALLEGED LACK OF SECRECY OF THE BALLOT
Kenneth Keith, the field examiner designated by the Regional Director to conduct the elec-
tion, found on his arrival at the Company's plant on November 25, 1952, the date selected for
the election, that no booths had been sent out by the Board, nor had they been provided by
the Company. He decided; therefore, that the voting place specified in the election notice
would be unsuitable , as affording insufficient secrecy for voting . After touring the plant,
accompanied by various company officials and employees, it was decided to hold the election
in the storage bin area . The stipulation for consent election and the election notice had pro-
vided for the election to be held in the paint grinding room , where a previous Board election
had been held.
Joint exhibits 1 and 2 are , respectively , a diagram and photograph of the storage bin area
where the election was held , depicting the general appearance of the storage bin area on the
day of election. Several boxes were set up at the south end of the bins, at the point marked
"box" in red pencil , on the diagram (this does not show on photograph ), on which the voters
were to mark their ballots . Miritello , the union observer, and Francis , the company observer,
stood at a desk to mark the voting list and check off the names of voters as they appeared.
The closest edge of the desk to the "box" (hereinafter called the voting place) was about 9
feet. While they were waiting to vote, the voters were kept waiting in a line immediately ad-
jacent to the bins, on the west side of the aisle, and at the other end of the bins from the
voting place . Keith , the Board agent , stood at a point in the aisle, between the desk and the
voting place , facing the waiting line of voters . The aisle west of the bins was probably blocked
off with empty trucks on the day of election. At any rate, there is no contention that anyone
went into that aisle while voting was going on , so that secrecy of the ballot could not have
been impaired by observation from the west side of the voting place
After each voter was checked off by the observers, he received a blank ballot from Keith,
proceeded to the voting place, and marked his ballot,then returned down the aisle to deposit
it in a ballot box hanging on the bin at a point across the aisle from the desk . The next voter
was then checked off, given a ballot by Keith, and proceeded to the voting place
The facts related so far are substantially undisputed in the testimony of the witnesses for
the parties . In the remainder of this section of the report , the questions relating to the actual
secrecy of the ballot will be treated separately.
All of the witnesses testified that while any voter was marking his ballot at the voting place,
no other waiting voter was permitted to go there . The distance at which waiting voters were
kept from the voting place is variously estimated2 at 12 feet in Lewis' testimony, 7 feet in
Miritello's testimony, and 7 feet in Francis' testimony All witnesses agree that the voters
were kept waiting in a line next to the bins, and that the overflow of waiting voters extended
back in the aisle north and west of the bins The thickness of the bins is about 6 feet, con-
sisting of 2 rows of steel shelving, closed at the back, each 3 feet thick, and back to back
There is some conflict in the testimony regarding the position of Keith, the Board agent.
Lewis testified that Keith was approximately 10 feet from the voting place, Miritello testified
that Keith was about 51 feet from the voting place, and Francis testified that Keith was about
6 feet from the voting place. The observers, Miritello and Francis, were standing or sitting
at the desk, to the north of Keith, where they checked off the names of eligible voters before
the latter were given ballots Although their testimony is in disagreement as to who was to
the right or left, their testimony, and examinationof joint exhibit 1, reveals that neither could
have been closer than about 9 feet from the voting place.
The position of the remaining witnesses, Lewis and Martin, is given by them as about 14
feet from the voting place. Lewis testified that he was standing at a position north of the desk
for about 10 minutes after voting and Martin that he was standing at the north end of the bins
(where all voters waited before receiving their ballots), while waiting for his own ballot.
The testimony regarding the number of cans on the shelves in the bins near the voting place
is scanty and uncertain Lewis testified that the bins were practically empty on the day of the
election, but later, on cross-examination, said that he wasn't sure. Miritello testified that
there were only a few cans of paint in the bins, which did not obstruct his view, and Martin
2Although most of the testimony did not mention actual distances as such, the undersigned
has measured the various points on joint exhibit 1 as marked by the witnesses, and thus
reconstructed the approximate distances.
STANDARD-TOCH CHEMICALS, INC. 1 125
testified that there was a little paint on the shelves, but that it was possible to see through
from one side of the shelves to another. Based on their composite, credited testimony, I
find that there was insufficient paint on the shelves to have prevented anyone from observing
a voter marking his ballot, if close enough to the voter
The testimony is in substantial conflict as to whether witnesses could have seen how
ballots were marked Lewis testified, in a contradictory manner, first that he didn't see
any voter mark his ballot, but could if he had wanted to, wasn't paying much attention, still
later that he didn't remember, and finally that he didn't actually see anyone marking his ballot.
Miritello testified that from where he was standing at the desk, as observer, he could see
how several voters marked their ballots, by squatting down a little, and Martin that from
where he was standing at the north end of the bins, he could see how two voters marked their
ballots. Francis, however, testified that the shelf obstructed his view of the voting place,
making it impossible for him to see the top of the box (constituting the voting place).
Lewis also testified that the height of the boxes (constituting the voting place) was a "tiny
bit" below the first shelf, and a "little over 3 feet high," and Francis that the boxes were
46 inches high, and that the shelf of the bin was 53 inches high. Based on any examination of
the photograph, joint exhibit 2, and Francis' testimony that he is the man in the photograph
and is 5 feet 9 inches tall, Icredit his testimony as to the height of the shelf and find that it is
approximately 53 inches high. As to the height of the voting place, I find that it was approx-
imately 7 inches below the shelf 8 and that the boxes constituting the voting place were at the
center of the south end of the bins which were 6 feet in thickness. I also find that the top
surface of the boxes constituting the surface of the voting place were not more than 46 inches
wide and 23 inches in depth, thus leaving at least 12 inches between the east edge of the shelf
and the nearest edge of the top of the box.
Having thus located the actors and props in this drama, it is now appropriate to determine
whether or not Miritello, Martin, and Lewis saw or could have seen voters marking their
ballots at the voting place, as they have testified to, or whether their views would have been
obstructed by the shelf, as was Francis', when he looked in that direction. Bearing in mind
that all of the four witnesses were standing in different locations, their respective angles of
view differed. Lewis' testimony in this respect is vague and unconvincing. I regard his state-
ment in Board exhibit 2, as purely speculative, I. e., that other voters could see how he marked
his own ballot, and nowhere in his testimony does he state that he actually saw anyone marking
his ballot.
On all of the evidence in the record, I find that it would have been impossible for anyone to
have seen any portion of the top surface of the boxes constituting the voting place from a
distance further than 6 feet from the voting place, unless he were at an eye level of 61 feet,
since the shelf would have obstructed his view. The summary of the evidence already shows
that neither Miritello, Francis, nor any waiting voter, was claimed by any witness to be that
close to the south end of the bin behind which the voting place was located I further find that
the impossibility of seeing the top of the boxes from any point in the aisle even if a viewer
were standing on the extreme east side of the aisle, still exists, unless the viewer was
standing closer than a point exactly opposite at least 51 feet from the south end of the bin,
since it is undisputed that the aisle was 3 feet wide. Based on these findings, I further find
that it was impossible for Miritello to have seen the voting place from a distance of 9 feet
away, and that it was impossible for Martin to have seen the voting place from a still further
distance. The composite testimony of Miritello and Francis s6ows that Keith was, at various
times during the election, standing as close as about 6 feet from the south end of the bin,
and on the east side of the aisle, directly opposite to a point about 5 feet from the south end
of the bin, but nowhere does the testimony reveal that Keith was facing in any direction other
than-towards the waiting voters.
The two remaining issues are whether secrecy of the ballot was violated by voters coming
out of the voting place with their ballots unfolded, and whether secrecy was violated, assum-
ing the truth of Lewis' testimony that he was able to see how a ballot was marked by reading
through the folded ballot from a distance of about 6 feet.
3Having found the height of the shelf to be 53 inches, I do not credit Lewis' testimony that
the surface of the boxes was a little over 3 feet high, since it could not then also be "a tiny
bit" below the shelf, as he also testified. There is no dispute as to the height of the shelf,
or any contention that its height as measured by Francis is any different than on the day of
election.
4Miritello's testimony is doubly unconvincing, since he testified that he could not see the
top of the boxes.
1 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miritello's testimony that he was able to see how at least 15 employees voted because they
emerged with their ballots open is uncorroborated. At another portion of his testimony he
testified to seeing "at least 7 or 8" who had not folded their ballots. Based on his demeanor
during the hearing , and his uncertain and inconsistent testimony as to numbers, and the obvious
unlikelihood of 15 voters (out of only 70) coming out of the voting place with their ballots open
and facing the direction of Miritello so that he could read the markings, the undersigned dis-
credits this portion of the testimony completely.
Lewis testified that while standing north of the desk, after he had voted, he saw how a voter
marked his ballot by reading through the folded ballot However, his testimony was not too
convincing, since he also testified, "Well, I wouldn't say definitely, but I would say the "yes"
was on the left hand side of the ballot " Assuming, arguendo, this to be true, an isolated oc-
currence like this should not be grounds for setting aside an election , in the opinion of the
undersigned in a properly run election, the ballot box is always within the view of the ob-
servers, and an assertion, whether true or not , that the intention of the voter could be read
through the folded ballot, could serve to invalidate almost any election. 5
The Company, in its brief, argues that Miritello, the union observer, signed a certificate
on conduct of the election at the end of the voting, and also a tally of ballots (containing
language certifying the secrecy of the ballot), after the count was known. Even assuming
that Miritello may have been more sophisticated than the average observer in election
procedure , since he had acted once before as election observer , the undersigned has not con-
sidered this fact in making his findings and recommendations , since the Board ' s decisions
consistently show that a high standard of election conduct is required in Board elections, and
that observers cannot waive the right of protest where the required standards have not been
met. Cf. Gary Enterprises, Inc., 86 NLRB 431
At this stage of the report , it is appropriate to summarize briefly the established standards
of election conduct set up by the Board in its decisions These have been amply expressed in
Bercut-Richards Packing Company, et al., 65 NLRB 1052, and the frequently cited General
Shoe Corporation case, 77 NLRB 124. It is of vital importance to the Board's effectuation of
the policies of the Act that the integrity of its procedures be maintained at all times and at
all cost, and that the regularity of the conduct of its elections be above reproach. 6 It is of
equal importance, however, that elections not be set aside lightly unless there is conduct "so
glaring that it is almost certain to have impaired employees' freedom of choice Because we
cannot police the details surrounding every election, and because we believe that in the
absence of excessive acts employees can be taken to have expressed their true convictions
in the secrecy of the polling booth, the Board has exercised this power sparingly. The ques-
tion is one of degree " T An example of the degree to which the laboratory standards referred
to in General Shoe Corporation were befouled to such an extent that the experiment was in-
validated can be found in Gary Enterprises, Inc , op cit., where the voters marked their
ballots in the corner of a relatively small room in full view of the observers, and a union
business agent was present during part of thevoting, a set of facts substantially different than
in the instant case
In the opinion of the undersigned, and based on all of the above, I conclude and find that the
Union's objections, with regard to the lack of secrecy, do not have merit and are not grounds
for setting aside the election, since none of the persons at the election could have seen voters
marking their ballots, and that the laboratory standards referred to in General Shoe were
maintained here. There is nothing sacrosanct about the use of voting booths in Board elections,
provided the necessary secrecy of balloting is present, and many Board elections are held
without the use of conventional voting booths. It is unnecessary that the voter be totally hidden
from view while marking his ballot; it is required only that no one can see how he marks his
ballot The Board ' s Rules and Regulations , Series 6, as amended , Section 101.18, states,
"The ballots are marked in the secrecy of a voting booth." Since there is no possibility that
the ballots may have been marked within view of any persons present it is the opinion of the
undersigned that sufficiently high standards of election conduct and secrecy were maintained
in this election.
5If ballot boxes were not kept within view of observers , it is obvious that the validity
of elections could be attacked with the accusation that the ballot box could have been stuffed.
6Bercut-Richards Packing Company , op. cit., p. 1057.
7 General Shoe Corporation , op. cit ., p. 126.
STANDARD-TOCH CHEMICALS, INC. 1127
IL THE ALLEGED PROMISE OF BENEFIT
Kenneth Martin , a rank-and-file employee , and one of the Union ' s witnesses , testified that
on November 25, 1952 , 8 he was in one of the Company's washrooms at about 10 in the morn-
ing, smoking and talking to two other employees about the impending election that afternoon,
when Guy Richards , plant manager , walked in , and said , " If you boys will cooperate with me,
I'll see that you get an increase ." Richards , the plant manager, testified that although he cus-
tomarily enters the plant washrooms about four times a day, and Martin may have been present,
this alleged incident never happened , and that Martin's statement is completely false . Neither
the Union nor the Company has presented any other witnesses with regard to this alleged in-
cident, thus presenting a pure question of credibility as between Martin and Richards.
The testimony showed , further , that Martin is the son of Robert Martin , a business agent of
the Union; works for theUnion (aswellas for the Company ) and is paid by it; and that a charge
was filed by the Union before the election concerning Martin's discharge.
Martin, in his affidavit (givenduringthecourseof investigation of the objections ), stated that
he did not know the names of the 2 employees present during the conversation with Richards,
yet during the course of the hearing testified that 1 of the employees was Eddie Pruitt, who is
now in the service, and that he didn ' t recall the name of the other now. He later testified as
follows
Q, You knew Pruitt?
A. I knew Pruitt, yes.
Q. You knew his name at the time?
A. Yes.
Q. And at all times since them?
A. Yes, I did , until he was drafted into the army, and the other one I didn 't know very
well.
Later, and after he had read Board exhibit 3, he testified first that he didn' t know Pruitt's
name until a few days or a week after he had given the affidavit , and then that he did not find
out Pruitt ' s name until more than 11 days following the election
Based on the observation by the undersigned of the witnesses , the undersigned finds that
Martin's credibility is affected by his shifting and evasive testimony , and that the Union has
therefore failed to sustain the burden of proof with respect to the alleged promise of benefit
It is recommended that this allegation of the objections be overruled as being entirely with-
out merit 9
RECOMMENDATIONS
Upon the basis of the above findings of fact , and upon the entire record in the proceeding, I
recommend that the National Labor Relations Board dismiss the objections.
As provided in the order directing hearing on objections , within 10 days from the date of
issuance of the report , any party may file with the Board in Washington , D. C., an original
and six copies of exceptions thereto Immediately upon filing of such exceptions , the party
filing the same shall serve a copy thereof upon each of the other parties , and shall file a copy
with the Regional Director . If no exceptions are filed thereto, the Board will adopt the rec-
ommendations of the hearing officer.
8 Board exhibit 3, Martin's affidavit, given during the course of the Regional Director's
investigation of the objections , states that this conversation took place on November 24, the
day before the election . The hearing officer regards this discrepancy as being of no sig-
nificance.
9 Martin 's employment by the Union , his close relationship with a business agent of the
Union, and his general air of intelligence and alertness , make it appear very unlikely that
he would have failed to realize the importance of having the names of corroborative witnesses
made available to the Regional Director during investigation of the objections , or to the
Union for the hearing . Thus, it appears that the names were withheld for fear that the
alleged witnesses to the promise of benefit would not corroborate his story, and that the
name of one was given belatedly when he was no longer available , in order to lend a false
air of authenticity to his story . Although I do not regard either Martin ' s relationship to a
business agent, his being the subject of an unfair labor practice charge , or his paid status
as a union employee as affecting his credibility , I find it difficult to believe that, when
considering these facts in connection with the fact that Martin had been employed almost
3 months in a plant employing only about 70 production employees , Martin did not know, or
could not have easily ascertained , the names of the 2 witnesses to the alleged promise of
benefit. It is also very unlikely that Richards would have made a promise of benefit to
Martin, knowing that a charge had been filed concerning him.