Sterling Faucet Co.

National Labor Relations Board - Board DecisionsJun 1, 1973

203 N.L.R.B. 1031 (N.L.R.B. 1973)

STERLING FAUCET CO. Sterling Faucet Company, Texas Division , a Subsid- iary of Rockwell Manufacturing Company and Inter- national Union of District 50, Allied and Technical Workers of the United States and Canada, Local 13948 Sterling Faucet Company , Texas Division, a Subsid- iary of Rockwell Manufacturing Company and Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, Petitioner. Cases 16-CA-4738 and 16-RC-5843 June 1, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 23, 1972, Administrative Law Judge' Paul E. Weil issued the attached Decision in this pro- ceeding. Thereafter, the IAM 2 filed exceptions and a supporting brief, the Respondent-Employer filed ex- ceptions and a supporting brief, and District 50 3 filed cross-exceptions and a supporting brief.4 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, cross-ex- ceptions, and briefs 5 and has decided to affirm the rulings, findings, and conclusions, as modified herein, i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 International Association of Machinists and Aerospace Workers, AFL- CIO, the Petitioner in Case 16-RC-5843. 3 International Union of District 50, Allied and Technical Workers of the United States and Canada , Local Union 13948, the Charging Party in Case 16-CA-4738. Â° The United Steelworkers of America, AFL-CIO, hereinafter the Steel- workers, has filed a motion to substitute itself for District 50 as the Charging Party and Intervenor in this proceeding. The motion is predicated on the Steelworkers claim that it is the legal successor to District 50 as a result of a merger agreement consummated between these two Unions on August 9, 1972. The lAM has filed a response in opposition to this motion , contending that the motion should be denied on the grounds that: (1) the Steelworkers is not a proper party to this proceeding; (2) the evidence before the Board does not establish that the merger has been completely effectuated ; and (3) the evidence fails to establish that the Steelworkers is the legal representative of District 50's Local Union 13948. Having duly considered the matter, we are of the opinion that the evidence before us is insufficient to resolve the issue as to whether or not the Steelworkers is the legal representative of District 50's Local 13948. Accordingly, the Steelworkers motion is hereby denied at this time, but without prejudice to its being renewed before the Regional Director for Region 16 for the purpose of substituting the Steel- workers for District 50 on the ballot in the election we are directing herein If such a motion is filed , the Regional Director is hereby authorized to permit the Steelworkers to substitute for District 50 on the ballot on a proper showing that the Steelworkers is the successor-in-interest to District 50's Local Union 13948. 5 While this matter was pending before the Board , the IAM notified the Board that it disclaimed any further interest in, and requested to be allowed 203 NLRB No. 144 1031 of the Administrative Law Judge and to adopt his recommended Order. We agree with the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) of the Act by maintaining an invalid no-distribution rule. We also agree with his finding that the mainte- nance of such a rule during the preelection period had an inhibiting effect on employees in the exercise of their Section 7 rights and hence constitutes grounds for setting aside the election. In reaching these conclusions, we would comment briefly on our dissenting colleague's contention that an incumbent union should be estopped from raising such an objection, when, as here, the invalid rule re- sulted from the collective-bargaining efforts of the incumbent union and the employer. In our judgment such a concept would be valid if, in our election pro- cess, we were enforcing the rights of private parties. But clearly this is not our concern. Rather, it is our responsibility to determine the impact such conduct has on the employees and, when, as here, the objec- tionable conduct has inhibited the employees in the exercise of their Section 7 rights, it is our duty to set aside the election. It matters little whether the objec- tionable conduct is engaged in by the employer, an incumbent union, a rival union, or an outside party. What is dispositive is the effect such conduct has on the employees' freedom of choice in the election. Here, obviously, the objectionable conduct impinged on the basic rights of the employees and we are un- willing to conclude that this fact should be ignored because of the culpability of the objecting party.' We also agree with the Administrative Law Judge's finding that Supervisor Dixon's threat to employee Ervin was violative of Section 8(a)(1) of the Act. How- ever, we do not agree with his further finding that this unlawful threat does not constitute grounds for set- ting aside the election. Specifically, the Administrative Law Judge found that Supervisor Dixon told employee Ervin that he would be glad when the election was over, and if District 50 lost and the Company won Ervin might as well not come back to work because he (Dixon) would be waiting at the door to fire Ervin. In making this finding, the Administrative Law Judge relied on Ervin's testimony, at the same time, however, pointing out that Ervin was anything but a model witness and that his credibility was impaired by his truculence. On the basis of the reservations expressed by the Admin- to withdraw from, pending and further proceedings involving Sterling Faucet Company, Tyler, Texas, in Cases 16-CA-4738 and 16-RC-5843. The IAM request is hereby denied at this time, but without prejudice to its being renewed before the Regional Director for Region 16 solely for the purpose of allowing IAM to withdraw its name from the ballot in the election we are directing herein. 6 Cf The Magnavox Company of Tennessee, 195 NLRB 265. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD istrative Law Judge and his emphasis on the fact that the testimony stands uncontradicted, our dissenting colleague concludes that the Administrative Law Judge must have been operating under the mistaken impression that Ervin's testimony had to be credited because it was uncontroverted. We will indulge in no such presumption. In our opinion, the Administrative Law Judge knew full well that he could accept or reject Ervin's testimony and he elected to credit this testimony even in the face of his general reservations concerning Ervin as a witness . In such circumstances, we see no basis for overturning this credibility resolu- tion. Having found that the threat to fire Ervin was a violation of Section 8(a)(l) of the Act, the Adminis- trative Law Judge nevertheless concluded that it did not constitute objectionable conduct with regard to the election. In reaching this conclusion, the Adminis- trative Law Judge reasoned that the threat was not a threat of reprisal in the event Ervin voted for or sup- ported District 50 and that, on the contrary, such a threat would have reinforced Ervin in his determina- tion, if he had any, to see that District 50 won the election . Ervin may have regarded the threat as repre- senting a final decision about his discharge should District 50 lose, and such an understanding might, as the Chairman and Administrative Law Judge observe, have caused him to redouble his efforts to see that District 50 would win the election. But the threat might also have prevented Ervin from objectively evaluating representation by District 50 and shifting his support on the basis of such evaluation. It is also possible that Ervin could have understood the threat to be a conditional one, representing what the Re- spondent would do to him if he continued to support District 50, and this obviously would have affected Ervin's freedom to continue his support or terminate it. Other possible interpretations and reactions by Er- vin may be imagined . Unlike the Chairman, we see little point in such speculation. Whatever Ervin's reading of it and whichever way it may have had a tendency to have turned him, the threat plainly inter- fered with the freedom of choice the Act guaranteed to Ervin in the election. Accordingly, we find, con- trary to the Administrative Law Judge and our dis- senting colleague , that Supervisor Dixon's threat to discharge employee Ervin, in the circumstances de- scribed above, constitutes grounds for setting aside the election. Finally, we agree with the Administrative Law Judge's findings that Farr Associates, a psychological testing firm, was the apparent agent of the Employer and that it engaged in conduct which tainted the elec- tion. As found by the Administrative Law Judge, the Employer retained the services of Farr Associates to conduct a long-term attitude survey among its em- ployees. Under the arrangement, employees were in- terviewed during monthly meetings held with representatives of Farr Associates. These meetings were held on company time and premises. At these meetings , employees were encouraged to make sug- gestions relating to the conditions under which they worked and the suggestions were then turned to the Employer, presumably for possible action. According to the credited testimony, at two such meetings short- ly before the election, the representative of Farr Asso- ciates told employees that the Company had offered employees a 25-cent raise , but District 50 (the incum- bent Union) had prevented the employees from get- ting it. On the basis of the evidence before him, the Ad- ministrative Law Judge concluded that Farr Associ- ates was held out to the employees by the Employer as its agent . He based this conclusion on the fact that Farr Associates was a conduit for employee sugges- tions and that employees would infer that the sugges- tions received would be acted on by the Employer. In these circumstances, the Administrative Law Judge found that it was incumbent on the Employer to as- certain what statements were being made by such agents and to disavow them if they exceeded the bounds of activity permissible to the Employer. Find- ing that those statements , described above, did in fact exceed the bounds of permissible activity, the Admin- istrative Law Judge recommended that this objection to the election be sustained. We agree with the Administrative Law Judge's findings and recommendations concerning this objec- tion. However, our dissenting colleague correctly notes that the objection itself alleges a misrepresenta- tion and no findings have been made concerning the truth or falsity of the statements made. The answer to this observation is that neither we nor the Administra- tive Law Judge has considered this conduct in the context of whether or not it was a misrepresentation. We have done so because the mere truthfulness of the basic statement , with full explanation of the circum- stances surrounding it, does not remove its objection- able character. For example, there is a very valid reason here why District 50, as the incumbent Union, could not agree to an unscheduled pay increase dur- ing the critical period before the election; namely, such action could be relied on as grounds for setting aside the election by the rival Union . In similar cir- cumstances, we have held that statements by an em- ployer which place the onus for loss of a pay raise on the union are grounds for setting aside the election.' 7 American Paper & Supply Co, 159 NLRB 1243. STERLING FAUCET CO. We see no distinction when , as here , the statement is made by the Employer's agent rather than the Em- ployer himself. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent , Sterling Faucet Company, Texas Division , a subsidiary of Rockwell Manufac- turing Company, Tyler, Texas , its officers , agents, successors , and assigns , shall take the action set forth in the Administrative Law Judge's recommended Or- der. IT IS FURTHER ORDERED that the election held on March 10 , 1972, in Case 16-RC-5843, be, and it here- by is, set aside, and that said case is hereby remanded to the Regional Director for Region 16 to conduct a new election at such time as he deems that the circum- stances will permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] CHAIRMAN MILLER , dissenting in part: Like my colleagues , I would adopt the Administra- tive Law Judge 's finding that Respondent violated Section 8(a)(1) of the Act by maintaining an invalid no-distribution rule.8 However , I find no basis for "inferring" that Respondent threatened an employee with reprisal if the incumbent Union lost the election held herein , nor any merit in the incumbent Union's objections to the aforementioned election , which the Petitioner won, and would , therefore , certify the Peti- tioner as the collective-bargaining representative of the employees here involved, for the reasons set forth below. 1. With respect to the alleged threat , the question is one of credibility , which the Administrative Law Judge resolved in an unconventional , and in my view, unacceptable way. He seems to be of the opinion that unless a litigant adduces rebuttal testimony , a trier of fact must accept the only testimony on a subject as truthful, no matter how unconvincing it may sound. Ervin was the sole witness to the alleged threat, and with respect to his testimony the Administrative Law Judge observes: Although Ervin was anything but a model wit- ness, and his credibility was impaired by his tru- culence and evasiveness: the absence of any contradiction to his testimony leaves me with the 8 The Magnavox Company of Tennessee, 195 NLRB 265. 1033 inference that the incident took place as report- ed. In my view, Ervin 's "impaired credibility" makes his testimony useless as a predicate for finding the unlaw- ful threat , particularly since it is somewhat implausi- ble that in an atmosphere otherwise free of union animus, and where employee support of a "no-union" vote was minimal , a supervisor would tell an employ- ee that his job would be in jeopardy if "the Company won." But even were I to find that the threat was made , like the Administrative Law Judge , I would find that it could not have had an impact on the election. 2. The unlawful no-distribution rule in this case was established by the terms of the collective -bargain- ing agreement between Respondent and the incum- bent Union. It was not enforced by the Employer, nor did the Employer call it to the employees ' attention during the preelection period . In these circumstances, though the contract provision , under our decision in Magnavox, supra, may violate Section 8 (a)(1), I think it an overly mechanistic application of that decision to set aside an election , on the basis of that agreement, where a rival has won the election, and the contract- ing union is the objecting party . The rule evidenced by the contract herein is not without advantage to the incumbent Union, for under it rival labor organiza- tions , indeed , dissident employees themselves , are ef- fectively denied free expression in contravention of rights guaranteed by the Act. We can of course reme- dy this illegitimate use of contracting powers, as we have in this case, by issuing an appropriate cease-and- desist order. The protection we thus afford, however, is immediately negated by my colleagues , who would set aside an election won by a rival union at the re- quest of the incumbent , a co-author of the very rule it now claims is objectionable. This mechanical and simplistic application of Magnavox, supra, to the facts in this case can only lead one to conclude cynically: What the incumbent union cannot do directly, it can do indirectly by causing the Board to deny a rival the fruits of an election victory. 3. Finally, the incumbent Union objects to a state- ment allegedly made by an agent for the Employer to the effect that the incumbent was responsible for hav- ing blocked the wage increase . Since the theory of this objection would appear to be a misrepresentation rather than a threat or discriminatory withholding of benefits , and since the statement , if true, would hardly be objectionable , the absence of a finding as to the falsity of the alleged assertion persuades me to over- rule this objection as well. In view of the foregoing , I would overrule all the objections raised herein and certify the Petitioner as the collective -bargaining representative of the em- 1034 ployees here involved. DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WELL , Trial Examiner : On November 4, 1971, International Association of Machinists, and Aerospace Workers, AFL-CIO, hereinafter called IAM, filed a peti- tion with the Regional Director for Region 16 (Fort Worth, Texas), of the National Labor Relations Board , hereinafter called the Board, seeking an election among the hourly rated production and maintenance employees of Sterling Faucet Company, Texas Division , a subsidiary of Rockwell Manufacturing Company, hereinafter called Respondent or the Employer . International Union of District 50, Allied and Technical Workers of the United States and Canada, Local Union 13948 , hereinafter called District 50, the in- cumbent representative of Respondent's employees in the production and maintenance unit , intervened in the pro- ceeding. An election was held in the unit on March 10, 1972, with both unions on the ballot . Of approximately 357 eligi- ble voters, 137 voted for District 50, 168 for IAM and 21 voted against both labor organizations . Thereafter, District 50 timely filed objections to conduct affecting the results of the election. On April 7, 1972, District 50 filed a charge alleging that the Employer violated Section 8(aX3) and (1) by suspending Local President Faye Price and discharging employee Frank Blanton because of their support of District 50. On April 20, District 50 filed an amended charge adding allega- tions concerning the discharge of two additional employees. The Regional Director , on behalf of the General Counsel, on May 23, 1972, issued a complaint and notice of hearing alleging that the Employer violated Section 8(a)(1) by threats and interrogations of employees and by the promul- gation and enforcement of a no-solicitation and no-distri- bution rule, which prohibited solicitation and distribution on Respondent's property at any time . Thereafter, the Re- gional Director, on May 24, 1972, issued his report on objec- tions, recommending that because all of the objections raise substantial and material issues of fact and credibility, a hearing should be conducted thereon . The same order con- solidated the hearing on the objections with the complaint hearing theretofore noticed. The matter came on before me at Tyler, Texas, on July 13, 1972. All parties were present and represented by counsel. All parties had an opportunity to call and examine witnesses , adduce relevant and material evidence, argue orally on the record, and file briefs. The parties waived oral argument. Briefs have been received from each of the parties concerned. On the entire record in this case , and in contemplation of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer is a Delaware corporation engaged at Tyl- er, Texas, in the manufacture and distribution of plumbing fixtures. In the operation of its business as set forth above, the Employer annually sells goods valued in excess of $50,000, which it causes to be shipped in interstate com- merce from its plant in Tyler, Texas, to points in states of the Union other than the State of Texas. The Employer is an employer engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED District 50 and IAM are each labor organizations as de- fined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background The production and maintenance employees of the Em- ployer have been represented , at least since 1969, by District 50, which has had a contract with the Employer, dated January 10, 1969, and providing for its expiration on March 10, 1972. On November 4, 1971, IAM filed a petition seek- ing an election in the same unit . A vigorous campaign was conducted by both unions and the Employer, which result- ed in a majority of the votes being cast for IAM . District 50, however, in its objections complained that the Employer coercively interrogated employees , threatened them with reprisals, permitted solicitation and distribution of false and misleading literature on behalf of the IAM, in the vicinity of the polls during the time the election was in progress, falsely informed employees that District 50 had prevented them from receiving wage increases , and maintained and enforced an unlawful no-solicitation rule, and prohibited solicitation by supporters of District 50 during nonworking time on company premises . The objections also ran to activ- ities of the IAM in engaging voters in conversation in the vicinity of the polls, in campaigning during the time the election was in progress , permitting their agents and repre- sentatives to remain in the voting area during the time the election was in progress , and passing out what purported to be telegrams to the employees containing material misrepre- sentations during the time the election was in progress. The complaint filed by the General Counsel alleges the promul- gation and enforcement of a no-solicitation and no-distri- bution rule, which went beyond the restrictions permitted by the Act. It also alleges an incident of interrogation of an employee by a foreman and a threat to another employee that she would be discharged . I shall first consider the al- leged unfair labor practices, the discussion of which would encompass the factual background upon which the addi- tional objections are based. No-Distribution Rule The contract between the Employer and District 50 con- tains the following provision: Section XV-BULLETIN BOARDS (1) The Employer shall place bulletin boards at mu- STERLING FAUCET CO. tually agreeable locations which may be used by the Union for posting notices of the following types only: Notices of union meetings , recreational and social events, union elections , result of union election, union appointments and union meetings . Notices posted other than notices of meetings will be subject to the approval of the Employer. (2) There shall be no other distribution or posting by the Union or employees on plant property of any writ- ten or printed union material. During the time that District 50 has represented the em- ployees, whenever District 50 has had a notice to be posted other than notice of meetings , an officer of the local would seek permission to post it on the union bulletin board. If permission were not granted , normally the material would be printed in the form of a handbill and distributed outside the confines of the plant. The plant is set well back from the main highway serving it. The only entry to the plant is via an access road which winds for several hundred feet. About half way between the main road and the plant parking lot is a narrow two-lane bridge which automobiles must cross on planks at a slow rate of speed. Since the organization of the plant by District 50, it has been customary for distribution of written material to be conducted at the bridge, or on either side thereof. It appears that both Unions used this method. In the past, District 50 elections appear to have been conducted at the bridge site . The property line of the Employer commences about 50 feet beyond the plant end of the bridge. The Employer contends that there was no enforcement of the no-distribution rule, and that the employees were aware that while the contractual provision appeared to forbid dis- tribution at any time on company property, the rule would be enforced only with regard to distribution during working hours . The evidence reveals that there was a certain amount of distribution of literature by both Unions, but there is no evidence that it was anything but surreptitious or that it ever came to the attention of Respondent or its supervisors. There is no evidence that Respondent ever made any public announcement that the no-distribution rule would be any- thing less than fully enforced. Two incidents support the General Counsel's position that the rule, as written, was at all times in effect. First, the Employer, on a bulletin board erected for the purpose of posting the Employer's election material, put a display purporting to compare the working conditions in a nonunion plant of the Employer with those at the Tyler plant. A portion of the display compared the Company's rule with regard to bulletin boards with that contained in the union contract . However , the entire section XV, from the contract, as set forth above, including the no-distribution rule, was posted , whereas only the section of the company rule referring to posting of notices on the bulletin board was posted. I By this means it appears that the Employer went further than a mere comparison , and re- minded the employees of the no-distribution rule contained in the District 50 contract. The second contract took place when, shortly before the 1 The company rule absolutely forbidding solicitation and distribution of materials on the plant property or in the parking lot was not reproduced in the posted comparison. 1035 election, the Union's president sought permission to post some documents on the union bulletin board which the Employer construed as campaign material. On this occasion the Employer's personnel manager, Cliff Johnson, accord- ing to the testimony of Union President Faye Price, told her that this leaflet would have to be distributed off company property and on nonworking hours. According to Johnson's testimony, he "suggested that the handbills had always been distributed by distributing par- ties at the location of the bridge, that that would probably be the best place to do it." According to the testimony of Ruby Ford, who accompa- nied Mrs. Price to the personnel office, Johnson told her that the leaflet could not be published on the bulletin board because it was controversial and if the employees wanted to pass it out they could do so down by the bridge as they had been doing. I see no need to determine the credibility issue that arises, inasmuch as none of the versions are contradictory to the rule printed in the union contract and under none of the versions could the Union be said to have been advised that the rule was waived with regard to distribution in nonwork areas during nonworking hours. There is no evidence of enforcement of the rule by the Employer, but there is no evidence that the Employer at any time had knowledge of its breach. With regard to the alleged no-solicitation rule, the record reveals a considerable confusion between a no-solicitation rule and a no-distribution rule. The witnesses, and indeed counsel, spoke in terms of a solicitation rule, but there is no evidence that such a rule presently exists at the plant. Mrs. Price testified that sometime in the past, at least 2 years ago, she had a conversation regarding the solicitation rule with a supervisor. I consider that evidence of such a conversation was too remote to matters concerned with herein. The plant rules booklet, from which the Employer's comparison of conditions in its nonunion plants with those in the plant here concerned, contained an invalid no-solicitation rule, but there is no evidence that anyone was ever informed that the rule was applicable to the Tyler plant or that any effort was made to enforce such a rule at the Tyler plant. The employees uniformly testified that they were aware that they should not solicit for their respective labor organiza- tions on company time , and it appears clear that during breaks and lunch periods solicitation was common and un- hindered by any action of the Employer. No rule pertaining to inplant solicitation appears in the contract, nor has any been posted. Insofar as the General Counsel alleges that the existence and enforcement of a no-solicitation rule violated Section 8(a)(1), I recommend that the complaint be dis- missed . With regard to the no-distribution rule, it is clear that by forbidding distribution of any kind at any time, in any part of the plant, the rule exceeds the bounds estab- lished by the Board for such an inhibition of the employees' rights to disseminate information with regard to the union campaign. Under the decision of the Board in The Magna- vox Company of Tennessee, 195 NLRB 265, the waiver by District 50 of its members' rights to distribute materials is ineffective, not only with regard to the employees support- ing the opposing labor organization, but with regard to the employees supporting District 50. Accordingly, the contin- 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ued existence , even without active enforcement of the rule inhibits employees in the exercise of their protected rights and violates Section 8(axl) of the Act. The Alleged Interrogation Faye Price, the president of District 50, testified that in a conversation with Foreman Spiker in the foremen 's office, Spiker asked her what she thought about the upcoming election. She answered that she did not know. Spiker then, according to her, asked if she thought they could get repre- sentation from District 50, and said he thought the IAM was a better union because District 50 was an independent and IAM was a member of the AFL-CIO. Mrs. Price answered that the Steelworkers, with which District 50 proposed to merge, was a branch of the AFL-CIO, and Mr. Spiker said that he thought that that merger had fallen through. Spiker testified that he had a conversation with Faye Price, and asked her how the campaign was going. Asked whether he ever had asked her if she thought she would get decent representation from District 50, he answered in the negative . He answered in the negative whether he got into an argument with respect to whether or not District 50 would merge with the Steelworkers . He stated he did not clearly recall the particulars leading up to the conversation or how it happened that Mrs. Price was in his office. I credit Mrs. Prices' testimony about the conversation. She apparently had a fair recollection of the conversation and Spiker did not. I think that it is quite likely that Spiker commented, as she stated, on the possibility that IAM could give better representation to the employees than District 50, because of its affiliation with AFL-CIO. This appears logi- cal in view of the fact that Spiker was, himself , a member of the IUE and the chief shop steward for that organization in a former job. I do not believe that this constituted a coercive interrogation or that the comments made by Spiker were designed to interfere with or restrain Mrs. Price in any way. She was , after all, president of District 50. I consider that this was a normal conversation between two individu- als, each of whom had had considerable experience in the representation of employees by labor organizations, and had no coercive overtones. I shall recommend that the com- plaint be dismissed insofar as this incident is alleged to violate Section 8(axl) of the Act. Garfield Ervin testified that around the first of March 1972, he was attempting to discuss a grievance with Supervi- sor Guy Dixon. Dixon refused to discuss the grievance with him 3 and as he walked away, followed by Ervin, Dixon said that he would be glad when the election was over, and that if District 50 loses and the Company wins, Ervin might as 2 The reliance of District 50 on the Board 's decision in Rand 's, Inc, 172 NLRB 1787, is unfounded . In that case the hearing officer found that there was in existence a separate valid oral rule permitting electioneering during nonwork time , of which employees were aware Accordingly, the Board found that the mere existence of a written no-solicitation rule did not consti- tute interference warranting setting aside the election . In the instant case if a separate valid oral rule permitting electioneering or distribution during nonwork time existed , there is no evidence that the employees were ever made aware of that fact. J It appears that Ervin 's appointment as shop steward was informally made and no notification to the Company had been given well not come back to work because he would be waiting at the door to fire Ervin. Dixon, who is no longer employed by Respondent, was not called to testify.4 Although Ervin was anything but a model witness, and his credibility was impaired by his truculence and evasive- ness , the absence of any contradiction to his testimony leaves me with the inference that the incident took place as reported. Dixon's words constituted a clear threat that Er- vin would be discharged if his union did not win the elec- tion , which is a violation of Section 8(a)(1) of the Act, and I so find. IV THE OBJECTIONS District 50 filed 10 objections to conduct affecting the results of the election. The Regional Director made no find- ings with regard to any of them, but recommended that a hearing be conducted on all. I shall deal with each of the 10 objections in the order in which they appear on District 50's amended objection. 1. The Employer, through its agents and supervisors, coer- cively interrogated employees concerning their union activities and/or desires. The only evidence adduced with regard to this objection was that adduced by the General Counsel relating to the allegations of violations of Section 8(a)(1). The only interro- gation I found to have taken place was that of Mrs. Price, which I found not to be coercive. I find equally that the incident does not constitute conduct which in any way af- fected the result of the election, and I recommend that the objection be dismissed. 2. The Employer, through its agents and supervisors, threat- ened employees with reprisal in the event they voted for or supported District 50. The only incident referred to in this objection is the inci- dent relating to the purported steward, Ervin. The threat to discharge him, which I found to violate Section 8(a)(1), was not a threat of reprisal in the event he voted for or supported District 50. On the contrary, such a threat would appear to have reinforced Ervin in his determination, if he had any, to see that District 50 won the election . I find that the incident does not constitute objectionable conduct and could have no conceivable effect on the election. I recom- mend that the objection be dismissed. 3. At all times material and prior to the election the Employ- er maintained and enforced an unlawful no-solicitation rule, which prohibited solicitation by supporters of District 50 during nonworking time on company premises. I found no evidence of a no-solicitation rule. However, I have found that there was, in effect, a no-distribution rule at the plant throughout the preelection period, and I found a violation of 8(a)(1) on the part of the Employer in that the rule necessarily had an inhibiting effect on the employees in the plant in the exercise of their protected rights. The only issue remaining is whether District 50, which was a party to the contract in which the rule was promulgated, may equit- ably be permitted to raise the rule as an objection to the Respondent stated that he had been subpenaed with a form subpena that Respondent 's counsel had "left over" from a former case , but he did not attend the hearing . No attempt was made to enforce the subpena. STERLING FAUCET CO. conduct of the election, which it lost. As the Board pointed out in Magnavox Company of Tennessee, supra, the protec- tions of the Act are afforded to employees, not to labor organizations . It is equally true that employees ' rights in election situations to campaign on behalf of any or no labor organization , are equally personal to the employees, not to the labor organizations. The Board has not quibbled about setting elections aside because of interference with the elec- tion . I can see no distinction between a waiver of employees' rights to distribute written materials in the context of an unfair labor practice and the waiver of the right in the context of an election situation . These employee rights were infringed. The election is accordingly suspect. I therefore recommend that the objection be sustained. 4. The Employer encouraged its employees to wear buttons indicating their loyalty to the Company, thereby forcing em- ployees to renounce District 50. The evidence reveals that the Employer made available buttons with the company insignia . There is no evidence that any employee was at any time asked to wear one. However , there is ample evidence that many employees wore company buttons as well as buttons for one or the other union, and that some employees wore buttons for all three. The argument can hardly be made that the buttons constituted a subtle form of interrogation , as in Kawneer Co., 164 NLRB 583, or as the hang-tags distributed in Gar- land Knitting Mills of Beauford, South Carolina, Inc., 170 NLRB 821. The most that can be said was that buttons were made available to employees at their request . There is no evidence that the buttons were considered to be indicative of the loyalties of the wearer. I find no occasion in the distribution of them to set aside the election as District 50 would have me do . Accordingly, I recommend that this objection be overruled. 5. Notwithstanding the enforcement of the illegal no-solici- tation rule, as to District 50's supporters, the Employer know- ingly permitted agents of the Petitioner to solicit on behalf of that organization in the immediate vicinity of the polls during the time the election was in progress. The record reveals that the polls were open between 7 and 7:30 a.m. on the day of the election. At 7:30 the employees went to work Employee Geneva Henry testified that she arrived about 7:15 and observed four employees wearing IAM buttons and bumper stickers made into hats. Two were standing by the timeclock, the third perhaps 40 feet from the door of the lunchroom in which the election was being conducted , and the fourth , wearing a button that said "IAM Committeeman," was stationed about 6 feet from the door of the lunchroom . All were stationed on the main aisle of the plant which employees normally would follow from the entrance at the timeclock to the polling place in the lunchroom. According to Mrs. Henry the employees were distributing campaign literature consisting of a white piece of paper with a message "Vote right, vote IAM," and a yellow piece of paper which purported to be a copy of a telegram. As she passed the various employees, she heard them say "vote right, vote IAM," and saw them handing out some of the papers which they had in their hands. She did not take the papers. Frances Beasley testified to the same effect . In addition she testified that Dorothy Runnels, who was the employee 1037 nearest the lunchroom, was handing out literature and of- fering it to employees, some of whom accepted it. Ruby Ford stated that she arrived about 7:10 a.m. and observed the same conduct. All three witnesses testified that the conduct continued until the buzzer rang at 7:30. Runnels testified that she had no literature when she went in to vote. She admitted bringing literature into the plant consisting of a quantity of telegrams and a long white sheet of paper, which was campaign literature for the IAM. Her explanation of why she brought that literature to work is incredible inasmuch as she stated that her intention was to give them to another employee to distribute during the sec- ond lunch period, which did not take place until the election was over. I discredit Mrs. Runnels. Personnel Manager Cliff Johnson testified that when rep- resentatives of District 50 came to his office about 7:20 a.m. and reported the fact that IAM supporters were cam- paigning in the main corridor during the election, he dis- cussed the matter with his attorney and then went down to the main aisle. At the time he got there he said the election was still in progress 5 and that he saw no electioneering going on. I conclude that electioneering took place as indicated by Mrs. Henry, Mrs. Beasley, and Mrs. Ford. I conclude that it was not reported to Johnson until shortly before 7:30 a.m. and that by the time he had finished discussing the matter with his lawyer and went down to look into the matter, the buzzer sounded at 7:30, and the employees went to their machines, including the girls who were campaigning in the main aisle . I have found that there was no evidence that a no-solicitation rule existed in the plant, and I have found that the no-distribution rule, which existed, was invalid. Accordingly, I could hardly find that the failure of the Respondent to stop the distribution of literature or solicita- tion of employees, or the fact that the distribution was con- ducted by IAM supporters, is violative of the Act or interferes with the election. District 50 contends that under the Board's rule in Star Expansion Industries Corporation, 170 NLRB 364, and Milchem, Inc., 170 NLRB 362, the election should be set aside because the IAM supporters were campaigning outside the entrance to the cafeteria, con- tiguous to the voting zone. District 50 also contends that the Board's decision in Marvil International Security Service, 173 NLRB 1260, is distinguishable on its facts, but does not state in what respect it considers that decision distinguisha- ble. The Board held in Star Expansion that electioneering within the "no-electioneering" area established by the Board agent conducting the election destroys the laboratory conditions under which Board elections are to be conducted and requires that the election be set aside. There is no evi- dence in the instant case that the established area includes anything beyond the doors to the cafeteria in which the election was conducted. The place set forth in the election notice is the company cafeteria and the record reveals that the voters at no time, while standing in line waiting to vote, stood outside the door of the company cafeteria. There is no evidence that the Board agent attempted to assert at any 5 The voting period continued until 8.30 a.m. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time that the voting area extended outside the doors of the cafeteria .6 The nearest electioneer, Mrs. Runnels , was some 6 feet from the door of the polls and at an angle from which she could not be seen within the polling place. There were, at no time , employees waiting in line outside the plant cafete- ria. Accordingly, I find that the rule in Star Expansion, as explained in Marvil, does not control the instant situation and I recommend that the objection be dismissed. 6. The Employer knowingly permitted agents of the Peti- tioner to distribute false and misleading literature in the imme- diate vicinity of the polls during the time the election was in progress. This objection refers to the documents distributed by the four ladies, including Mrs. Runnel, involved in the discus- sion of Objection 5 above. The "false and misleading litera- ture" was not introduced in evidence and there is accordingly no evidence in support of the allegation. I rec- ommend that it be dismissed. 7. Agents of the Employer falsely informed employees that District 50 had prevented them from receiving wage increases. This objection has reference to meetings conducted by a psychologist employed by Farr Associates, a firm employed by the Employer to conduct a long-term employee attitude survey. The record reveals that a number of different groups, including groups of employees, groups of supervi- sors, and a mixed group, were interviewed on a monthly basis by employees of Fan Associates. The participants in the group were selected by management , the meetings were conducted in an office contiguous to the main office in the plant, and the meetings were conducted on company time. At the meetings the employee groups were encouraged to make suggestions relating to the conditions under which they worked. These suggestions were then entered on sug- gestion forms apparently with comment by the person con- ducting the meeting, and turned over to management, presumably for possible action. In addition a log of each meeting was kept by the "Associate" and furnished to the Employer's managerial people. According to the testimony of Garfield Ervin, the person who conducted the last meeting preceding the election told the group of approximately five employees present that the Company had offered employees a 25-cent raise but District 50 had prevented the employees from getting it. A Machin- ist supporter who was present said "well, we don't have to worry about that because we are going to have a new union anyhow," at which point the person conducting the meeting and the other employees at the meeting commenced clap- ping their hands. Imogene Currington testified that her group was told by a representative from Farr Associates that they could have gotten the Company to give a 15- or 25-cent raise but Mrs. Price objected. He further stated that they would be back after the election to do something for the employees. No effort was made by the Employer or any other party to rebut the testimony of Ervin and Currington. According- ly, I credit it. The Employer argues that Farr Associates are not the Employer's agents for the purposes of making prom- ises to employees, and accordingly that it is not bound by the action of the "Associate" who made these statements. The Board normally holds that persons clothed with the apparent authority to speak for an employer are held to bind the employer with their words? I conclude that under the circumstances of this case the Fan Associates were held out to the employees by the Em- ployer as its agent. I base this conclusion on the fact that, whatever their avowed function might have been, Fan As- sociates was used by the Employer as a conduit for sugges- tions concerning employee working conditions which would normally raise to the employees the inference that the Em- ployer would consider and presumably adopt such sugges- tions if it found them of value. Under such circumstances it is incumbent upon the Employer to ascertain what state- ments are made to employees by such agents, and to disa- vow them if they exceed the bounds of activity permissible to the Employer. Accordingly, I recommend that this objec- tion be sustained. 8. The Petitioner, through its agents and representatives, engaged voters in conversation in the immediate vicinity of the polls and campaigned on behalf of the Petitioner during the time the election was in progress. 9. Agents and representatives of the Petitioner remained in the voting area during the time the election was in progress. The above objections are, in essence, the same incidents alleged in Objection 5 and I recommend that they be dis- missed for the same reasons. 10. Agents and representatives of the Petitioner passed out what were purported to be telegrams to the employees contain- ing material misrepresentations during the time the election was in progress. Objection 10 refers to the same material as that contained in Objection 6. There is no evidence supporting the conten- tion that the documents passed out contained material mis- representations. Accordingly, I recommend that the objection be overruled. V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Employer set forth in section III, above, occurring in connection with the operation of the Employer set forth in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI THE REMEDY 6 At the hearing District 50's counsel offered to prove that the Board agent, upon being apprised of campaigning outside the room , said that he was the only agent there and could not leave the polls , and there was nothing he could do about it . I rejected the offer, since it is probative of neither the fact of the campaigning nor of whether a zone other than the interior of the plant cafeteria was established as the polling area. Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and that it 7 See Heights Funeral Homes, Inc, 159 NLRB 723; Ely & Walker, 151 NLRB 636; Herald Co, 181 NLRB 421. STERLING FAUCET CO. 1039 take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. By maintaining and enforcing a rule which prohibits employees from distributing literature on nonworking time and nonwork areas, and by threatening an employee with discharge because of his union activities, Respondent has violated Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. By the maintenance of the rule prohibiting employees from distributing literature on nonworking time and non- work areas and by the actions of its agents, Farr Associates, in telling employees that they were denied a raise by the intervention of District 50, the Employer has interfered with the free choice of the voters in the election conducted by the Board among the Employer's employees. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Sterling Faucet Company, Texas Division, a subsidiary of Rockwell Manufacturing Company, its officers, agents, suc- cessors , and assigns , shall: 1. Cease and desist from: (a) Maintaining, giving effect to, or enforcing any rule which prohibits any employee distributing literature on be- half of any labor organization, where the activity occurs in nonworking areas or on nonworking time. (b) Threatening any employee with discharge, because of his activities on behalf of District 50 or any other union. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its plant and office in Tyler, Texas, copies of the attached notice marked "Appendix." 9 Copies of the notice, on forms provided by the Regional Director for Region 16, after being duly signed by an authorized repre- sentative of the Employer, shall be posted by the Employer immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Em- ployer to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Employer has taken to comply herewith.10 I further recommend that the election should be set aside and that the Board direct that a new election be conducted. 9 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 10 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read : "Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do-anything that interferes with or re- strains or coerces employees with respect to these rights. WE WILL NOT threaten to lay off or discharge employ- ees for engaging in union activities. WE WILL NOT maintain, give effect to, or enforce any rule which prohibits our employees from distributing literature in nonworking areas on nonworking time on behalf of any labor organization relating to the selec- tion or rejection of a labor organization as the exclusive bargaining agent of the employees in a unit appropriate for collective bargaining, or pertaining to any other matters related to this exercise by the employees of the right guaranteed to them by the National Labor Rela- tions Act, as amended, to form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 8 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order , and all objections shall be deemed waived for all purposes. STERLING FAUCET COMPANY, TEXAS DIVISION, A SUBSIDIARY OF ROCKWELL MANUFACTURING COMPANY (Employer) 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By This notice must remain posted for 60 consecutive days (Representative) (Title) from the date of posting and must not be altered , defaced, or covered by any other material . Any questions concerning this notice or compliance with its provisions may be direct- This is an official notice and must not be defaced by ed to the Board's Office, Federal Office Building, Room anyone . 8-A-24 819 Taylor Street Fort Worth, Texas 76102, Tele- phone 817-334-2921.