Tyler Pipe Industries, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1970

180 N.L.R.B. 880 (N.L.R.B. 1970)

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tyler Pipe Industries , Inc. and International
Molders and Allied Workers Union , AFL-CIO.
Case 16-CA-2568
January 23, 1970
SUPPLEMENTAL DECISION AND
ORDER
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Tyler Pipe Industries , Inc., Swan, Texas, its officers,
agents, successors , and assigns , shall take the action
set forth in the Board 's Order reported at 161
NLRB 784.
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On November 4, 1966, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding,' finding that Respondent
had violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with International Molders and
Allied Workers Union, AFL-CIO. On February 11,
1969, the United States Court of Appeals for the
Fifth Circuit denied enforcement of the bargaining
order, remanding it to the Board for a full hearing
on the validity of the underlying representation
election. _
Accepting the Court's remand and its opinion as
the law of the case, the Board issued on April 10,
1969, an Order Reopening Record and Remanding
Proceeding to Regional Director for Hearing. A
hearing was held before Trial Examiner Fannie M.
Boyls.
On September 29, 1969, Trial Examiner Boyls
issued her Supplemental Decision finding that
Respondent's asserted reasons for refusing to
bargain with the Union were lacking in merit and
recommended that the Board affirm its previously
issued bargaining order. Thereafter, Respondent
filed exceptions to the Supplemental Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this proceeding to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the reopened hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Trial Examiner's Supplemental Decision, the
exceptions and brief, and the entire record in the
case, and hereby adopts the supplemental findings,
conclusions, and recommendations of the Trial
Examiner.3
'161 NLRB 784.
'Tyler Pipe and Foundry Company v. N L.R B , 406 F.2d 1061 (C A. 5)
'Member Jenkins does not construe the remand order as requiring, 4
years after the election , an exploration of the employees ' own subjective
state of mind on election day and the extent to which the state of mind
might have been induced by any of the alleged misrepresentations. The
Trial Examiner properly characterized such testimony by the employees as
"so unreliable as to warrant its total rejection ," and he would affirm her
decision without relying on any evaluation of the employees ' testimony on
this point
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
FANNIE M. BoYLS , Trial Examiner: On November 4,
1966, the National Labor Relations Board issued its
Decision and Order, finding that Respondent (herein also
called the Company) had violated Section 8 (a)(5) and (1)
of the National Labor Relations Act by refusing to
bargain with International Molders and Allied Workers
Union , AFL-CIO (herein called the Union or the
Charging Party ) which had been certified on September
30, 1965, as the collective-bargaining representative of
Respondent ' s employees in an appropriate bargaining unit'
Thereafter a petition for review of the Board 's order and
a cross petition to enforce the order were filed with the
Court of Appeals for the Fifth Circuit That Court on
February 11, 1969, denied enforcement of the bargaining
order and remanded the case to the Board for a full
hearing on the validity of the underlying representation
election.
Pursuant to the Court's order , the Board , on April 10,
1969, issued an order reopening the record and directing
that a hearing be held in accordance with the Court's
opinion . Such hearing was held before me at Tyler, Texas,
on May 26 and on June 16 through June 19, 1969.
Subsequent to the hearing, counsel for the Respondent
and for the Charging Party filed briefs which have been
carefully considered.
I. THE REPRESENTATION ELECTION AND OBJECTIONS TO
THE ELECTION
At a representation election conducted on August 5,
1965, 902 votes were cast for and 758 against the Union,
and I I ballots were challenged. The Company filed timely
objections to the election. Although most of the objections
were based upon documentary evidence, the authenticity
of which was not in dispute, some credibility issues were
involved. The Regional Director, after an investigation,
concluded that the conduct complained of, even accepting
the Company's version of the disputed evidence, did not
furnish sufficient basis for setting aside the election. He
accordingly overruled the objections and issued his
Supplemental Decision and Certification on September 30,
1965. The Board thereafter denied a motion by the
Company for review of the Regional Director's
Supplemental Decision and Certification of Representative
and for a hearing on the objections.
' Respondent was then known as Tyler Pipe and Foundry Company.
Subsequently its name was changed to Tyler Pipe Industries , Inc , and
pursuant to motion by Respondent on the opening day of the hearing in
this case , the formal papers and style of the case were amended to reflect
the change in name
180 NLRB No. 136
TYLER PIPE INDUSTRIES, INC. 881
The objections to the election pertain to the following
alleged union misconduct. (I) Misrepresentations by the
Union with respect to a repeal by Congress of Section
14(b) of the Act and the effect of such repeal on the
employees (Objection 8); (2) misrepresentations regarding
the amounts of money employees had made for the
Company and its stockholders and the profits received by
Company officials and stockholders (Objection 9(b)); (3)
false representations that church leaders of all faiths, and
the United States Government urged employees to
organize (Objection 9(a)); (4) misrepresentations by the
Union that the wage rates of employees of Western
Foundry, which was organized by the Union, were higher
than those of the Company (Objection 10); (5)
misrepresentations regarding the Company's retirement
program (Objection 7); (6) appeals to racial prejudice
(Objection 6); (7) a large billboard erected by the Union
along a highway leading to the plant and maintained there
by the Union, in violation of a no-electioneering
agreement, until after the election (Objections No 3 and
4), and (8) spot radio broadcasts on the day of the
election and the preceding day which could have been
heard at the plant and which not only contained material
misrepresentations but which also were broadcast in
violation of the no-electioneering agreement (Objections 2,
4, and 5).1
11. THE REMAND ORDER OF THE COURT AND THE
BOARD
in its decision of February 11, 1969, remanding this
case to the Board, the Court specifically discusses certain
Company assertions regarding union misconduct allegedly
occurring prior to the election which the Court apparently
felt, if proven, could have influenced the outcome of the
election. This conduct was described by the Court as
relating to: (I) Union misrepresentations regarding repeal
of Section 14(b) of the Act and its effect on the
employees; (2) union handbills containing false and
prejudical matter, particularly those relating to the
amount of money employees had made for the Company
and its stockholders and an exaggeration of the amount of
Company earnings; (3) handbills stating that four named
United States Presidents, as well as the United States
Government and leaders of all religious organizations had
urged employees to organize; (4) handbills containing
sample ballots marked "Yes"; (5) the Union's use of loud
speakers in the working areas immediately preceding and
during the election to broadcast union sponsored radio
announcements containing false statements and
misrepresentations;' and (6) union appeals to racial
prejudice during the campaign.
In remanding this case for a full hearing on the validity
of the representation election, the court stated:
In the instant case, the Company offered to prove that
substantial numbers of employees were influenced by
the Union's misstatements . . Under the election
conditions that existed in this case, the Board should
The above is a summary of the Objections to the Election. The
objections appear in full at pages 27 to 35 of Company Exh. 1, which is
Volume I of the Transcript of Record filed with the Court of Appeals for
the Fifth Circuit, Docket No. 25,146. (Company exhibits are herein
referred to as "Co. Exh." and Charging Party exhibits as "C. P Exh ")
'It is noted that no objection was filed based upon the use by the Union
of any sample ballots nor upon the use by the Union of loud speakers to
broadcast union sponsored radio announcements Moreover , no evidence
was adduced at the hearing with respect to the existence of such sample
ballots or loud speakers.
conduct a full hearing to determine the effect of the
Union's methods on the vote of the employees In so
doing, the Board should determine whether there was a
deliberate use of false propaganda, for, when "the
standards of election campaigning drop too low, the
requisite laboratory conditions are not present and the
[election] must be conducted over again." N L R B v.
Houston Chronicle Publishing Co , 300 F 2d at 278.
III. EVIDENTIARY FACTS RELATING TO THE OBJECTIONS
A. Problems Presented in Evaluating Testimony
Pursuant to the Court's directions, the parties at the
hearing on remand were given full opportunity to present
evidence concerning the methods used by the Union
during the election campaign and the effect of those
methods upon the votes of the employees, including
subjective evidence as to what influenced the employees'
votes.' Much of the evidence as to what took place is in
documentary form and undisputed but other aspects of
this case must depend upon testimonial evidence.
Understandably, the recollections of many of the
witnesses as to what was said and done about 4 years
prior to their testimony did not appear to be very clear
and some of the testimony was of doubtful accuracy. This
is true although, for the most part, I am convinced that
the witnesses were honestly attempting to relate what they
believed had occurred. Particularly in dispute were the
dates, whether before or after the election, when union
representatives or union supporters were alleged to have
made certain statements and whether or not there was an
employee organizing committee in existence Some
witnesses placed the meetings or gatherings at which the
statements were allegedly made as occurring before the
election and others placed them as occurring subsequent
to the election. Some witnesses identified certain
employees as members of an employee organizing
committee who wore union committee buttons prior to the
election and other witnesses insisted that no employee
organizing committee existed and that no union buttons
were worn until after an in-plant bargaining committee
was selected subsequent to the election At the outset,
therefore, let us consider the evidence regarding the time
and places of the union meetings and the identity of
persons purporting to represent the Union.
1. Composition of the Union' s organizing committee
It is undisputed that in connection with the 1965
attempt to organize the Company's employees, the
Union' s international representative, Charles Boyd, came
to Tyler about the middle or latter part of March, for the
purpose of organizing the Company's employees at the
nearby town of Swan, Texas.' He was assisted at that
'There was one type of question , however, which, though clearly
relevant, the Trial Examiner did not require the witness to answer if he
preferred not to. That was the question as to how he actually voted The
witnesses were told by the Trial Examiner that since they had been assured
before the election that their vote would be by secret ballot, they would not
be required to tell how they voted but that they could tell if they wanted
to. Ten witnesses were asked that question Six replied that they preferred
not to tell (Wright, Ivy, Prater , Jones, White, and Erwin) Two replied that
they had voted against the Union (King and Peterbaugh ). One replied that
he had voted for the Union (Abron) and one stated that he had not voted
(A H Lee).
'Boyd had been involved in previous attempts to organize these
employees in 1963 and in 1962.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time and for a period after the election by L. B. Beam, a
union organizer on leave of absence from Western
Foundry Company . Later , in May , Wilbert Williams a
field representative of the Union from Houston, was
brought in to assist in organizing . The latter is a Negro
and his principal function was to try to organize the
Company 's Negro employees , who, Williams was
informed , comprised about 60 percent of the total of the
Company 's approximately 1800 employees . Three other
AFL-CIO organizers , Parks, Smith and McCarty, were
also brought in to assist in distributing union literature.
It is the contention of the Union that no formal union
organizing committee was ever formed and that the
persons above described were the only ones who could be
considered as union organizers or who could have
constituted an organizing committee . It is further the
Union 's contention that no union buttons were distributed
or worn until after the election when meetings were held
to select an employee from each department to serve on
an in-plant committee whose purpose was to talk to fellow
employees and formulate contract proposals to be made in
connection with negotiating a contract with Respondent.
Respondent contends , on the other hand , that there was
an employee organizing committee prior to the election,
that union buttons identifying some of the employees as
committeemen were worn and that some of these
employees made false statements , for which the Union
should be held responsible , which influenced the vote of
some of the employees . In support of its contention,
Respondent introduced in evidence among other things, a
letter distributed by the Union on or about March 22,
1965. This document was on a letterhead entitled "Tyler
Pipe and Foundry Company Employee Organizing
Committee of the International Molders and Allied
Workers Union , AFL-CIO" and was addressed to "Dear
Fellow Employees of Tyler Pipe" (Co. Exh. 14 ). In this
letter the employees were informed of a plan to form a
plant organizing committee to assist in organizing the
employees and of the steps to be taken to obtain a
National Labor Relations Board election . The letter
recites that two authorization cards and self-addressed and
stamped envelopes were being attached and the recipient
was requested to sign and return one card and give the
other to a "buddy" to sign . The letter was not signed but
was purportedly sent by the " Union Organizing
Committee ." Boyd, with the assistance of several
employees from Western Foundry Company, distributed
copies of the letter and attachments at the Respondent's
plant gates.'
Boyd credibly testified that at the time he drafted this
letter , he hoped to be able to get some of the employees
to serve on an organizing committee but was unable to do
so. Some employees offered to talk to fellow employees
and try to get cards signed but were unwilling to be
identified as a member of the organizing committee.
Beam ' s testimony tends to corroborate Boyd ' s in this
respect . He testified that he never heard of any employee
organizing committee . Union Representative Williams
similarly testified that there was never any organizing
committee comprised of employees in the plant and that if
any organizing committee could be considered as existing,
it would be comprised of those like himself, Boyd and
Beam , who were not plant employees. He further testified
'Although Boyd named Beam as one of those who had assisted him,
Beam testified that he never knew about the letter or saw it . I find it
unnecessary to decide whether Boyd mistakenly identified Beam as one of
the distributors or whether Beam did in fact assist in its distribution.
that he had tried, unsuccessfully, to persuade some of the
employees to serve as organizers
Respondent produced a number of employees who
testified that they saw, or believed they saw union buttons
being worn by fellow employees prior to the election,
including buttons having the word "Committeeman"
printed on them (testimony of King, Ivy, Stines, Coburn,
Griffin, Bobby Jones and White). Several also testified
that, although not sure, they believed a union in-plant
committee for the purpose of assisting in organizing
employees was formed prior to the election (testimony of
Wright, Sawyer and Coburn). Numerous other employees,
however, including one called by Respondent (Abron),
testified that no union buttons were worn prior to the
election and that no in-plant employee committee came
into existence until after the election. (Testimony of
Curtis, Malone, Horton, Brodie, A. T. Lee, Peterbaugh,
Love and Joe Smith). I am convinced from their
testimony as well as from that of Union Representatives
Boyd, Williams and Beam that it was not until after the
election, in late August 1965, that any employee
committee was formed or union buttons were made
available to any of the employees. At that time two
meetings were held in the State Theatre in Lindale at
which an employee from each department was selected to
serve on the in-plant committee whose purpose was to
assist in formulating contract proposals in the negotiations
which the Union hoped to have with Respondent. At that
time and thereafter, green buttons, with the word
"Committeeman" printed on them, were given to
members of this committee and white or other colored
buttons were made available for other employees.'
I am convinced and find on the basis of all the evidence
that prior to the election on August 5, 1965, no union
buttons were distributed or made available to the
employees and that no employees were members of any
union organizing committee.
2. Union meetings prior to the election
Because of a dispute in the record as to whether, prior
to the election, union representatives while at mass union
meetings made certain untrue or misleading statements
which could have influenced the votes of employees, it will
be helpful at the outset to resolve the question as to which
of the meetings took place prior to the election. If the
meetings about which these employees testified did not
take place until after the election, they could not, of
course, have influenced the employees' vote.
Other than meetings of small groups at employees'
homes, and other places where employees could be
contacted of which there were many - it is undisputed
that there were formal union meetings held or scheduled
'From time to time thereafter as vacancies on the in-plant committee
occurred , they were filled by the selection of other employees. There was
introduced in evidence a union handbill (C. P. Exh. 5), distributed to
employees, showing the names and most of the photographs of members of
the in -plant committee (wearing buttons on their shirts ) and inviting
employees to attend a rally on "Saturday , July 23" at the Delisa Ballroom
The year does not appear on the circular as a part of the date but, as Boyd
testified , the year was 1966. Calendars for the years 1965 and 1966 also
show that July 23 fell on Saturday in 1966 but not in 1965. One of
Respondent 's witnesses, Stines, testified that it was on the basis of this
circular, which Stines assumed was distributed in 1965, that he based his
testimony that it was before the election in 1965 that he saw various
employees named in the circulars wearing union buttons before the
election . Respondent 's counsel also apparently assumed the year to be 1965
when , on the first day of the hearing, they sought a stipulation that the
circular was distributed in July 1965.
TYLER PIPE INDUSTRIES,
to be held prior to the election at the Carlton Hotel, at
the Excelsior Lodge in Gilmer , at the Ebenezer Church in
North Tyler and at the State Theater in Lindale. A union
circular dated July 23, 1965 announced that a meeting at
the Ebenezer Church would be held on Saturday , July 24,
and that a meeting at the theater in Lindale would be held
on Sunday , July 25 (Co. Exh. 12).
Boyd and Williams credibly testified that only between
three and five employees showed up for the Lindale
meeting. Because of the small attendance , according to
Boyd , no meeting was actually held there that day or
before the election .' The meetings above mentioned,
according to the credited testimony of Boyd , corroborated
in substantial respects by Beam and Williams, were the
only formal meetings held prior to the election.
Subsequent to the election , however , in late August, the
Union held two meetings at Lindale , where the bargaining
committee members were selected . It then rented a vacant
house off the Mineola Highway on September 1, 1965,
giving a check in advance for 6 months' rent (C. P. Exh.
7). That house was later burned down and the Union then,
in 1966 or 1967, purchased its present meeting hall, a
house on the Mineola Highway , about a half mile from
the one that burned down.
B. Chronology of Events Preceding the Election
In order properly to evaluate the objections to the
election and the influence on the votes of the employees of
union conduct alleged to be improper, it should be helpful
to view the events insofar as practical in the context of the
whole campaign and in chronological sequence.
1. Union circulars and broadcasts preceding company
barbecue on July 17, 1965.
Early union circulars and broadcasts were for the most
part devoted to the announcement of the filing by the
Union of a representation petition with the Board on June
15, 1965, a hearing on the petition on July 14 and an
explanation of the National Labor Relations Act and the
role of the National Labor Relations Board in protecting
the rights of employees to organize and bargain where a
majority of the employees select a union to represent
them. The employees were told that because companies
are in the business of making money, it could be expected
that they would oppose the organization of their
employees at least initially. The role of the Federal
Mediation and Conciliation Service in assisting in the
negotiation of contracts was also explained, as was the
Union's procedure after being selected as bargaining
representative, of having employees from each department
select a representative to serve on the negotiating
committee.
One of the circulars, undated, but apparently circulated
shortly before the Company's July 17 barbecue, criticized
the affair as a "vicious gimmick" and argued that the
annual barbecue at the Company's Swan plant was
costing most employees about 35 cents an hour for the
entire year, implying that the employees of two organized
plants of the Company, in Pennsylvania and in Illinois,
'Employees Wright and Sawyer placed union organizer Beam as
attending and addressing that meeting . I credit Beam's testimony , however,
that because of a death in his family, he did not attend the Lindale
meeting which was scheduled before the election but that he heard that
only about three employees showed up . Beam admittedly attended two
meetings at the theater in Lindale subsequent to the election in late August
when the employee negotiating committee was selected.
INC. 883
where no barbecues were given, were paid approximately
that much an hour more than Swan plant employees. The
employees were also told in that circular that the
Company had purchased the Pennsylvania and Illinois
plants from profits made at the Swan plant.
I do not understand that Respondent has objected
specifically to any of the statements in these early
broadcasts or circulars. It adduced no evidence to indicate
that any of those statements were untrue.
2. The 14(b) Issue
a. Statements made by Company officials at the July
17. 1965 barbecue regarding repeal of Section 14(b)
of the Act
In view of the importance apparently attached by
Respondent and the Court to alleged statements by union
representatives or adherents to employees regarding repeal
of Section 14(b) of the Act and the effect of such
statements upon the vote of the employees, consideration
must be given to the circumstances giving rise to such
alleged statements and the context in which they were
made.
The first mention of Section 14(b) was apparently made
at a barbecue or picnic given by the Company for its
employees on July 17, 1965. M. J. Harvey, President and
Chairman of the Board of the Company, and John A.
Warner, Executive Vice President, on that occasion made
speeches to the employees in which they referred to that
subject. These speeches were tape recorded and there were
received in evidence transcriptions of those portions of the
speeches mentioning Section 14(b) (C. P. Exh. 6(a)).
President Harvey made the following remarks:
This part of the program, my part of the program.. .
will try to get it over with as soon as possible . .
what you call it, 14(b), an amendment to the Taft
Hartley Law that says a state can have Right-to-Work
Laws. The Congress is being called on by Mr. Johnson
and the labor organizations to cancel that. It means
that if a majority of those who go to vote, not a
majority of this Company, but a majority of those who
go to the polls and vote, and then become the
bargaining agents for this Company and if that is
repealed everyone of you, if there isn't but 400 of them
vote, will have to join and pay the dues and be
governed by that organization and they'll be your
bargaining agent.
Isn't that a ridiculous thing?
The only way you can beat it is just to be sure and
go vote if you don't like it. If you want it, and a
majority of these people in this plant - a majority of
the people in the plant vote for it, I'll go along with
you. I got nothing else to do. That's all. That's your
problem. The only thing I can do is point out to you
whenever they make false charges what are wrong, and
if I don't do it you'll think I agree with them.
Harvey was followed by Vice President Warner, who
told the employees:
Let's talk a little about-the Right-to-Work Law. It's
true we have a Right-to-Work Law in Texas, which
means that you have the freedom of choice as to
whether or not you want to join a Union. He also
mentioned the Bill is before Congress to repeal this law,
so if we ever needed to be sure and vote in an election,
it is this one, because if that law is repealed it only
takes 50 and one-tenth percent of votes cast - not of
the people here, but of the votes cast - and then
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
everyone else would be forced to join that Union or
couldn't have a job. We don't believe in that, we think
it is wrong, we think a man should have freedom of
choice, but if that is the law of the land then that's what
it'll be.
Thus, it was company officials themselves who were
telling the employees that if they voted the Union in and
Section 14(b) was repealed, all of the employees would
have to join the Union or lose their jobs Respondent's
officials did not explain to the employees that a repeal of
Section 14(b) of the Act would merely permit an employer
and the employees' bargaining representative to negotiate
a union shop provision in their contract.
b. Company posts notice of House vote to repeal
Section 14( b) and mails to its employees a reprint of
article attacking forced unionism
Thereafter, on or about July 29, the Company posted
on its bulletin boards a newspaper clipping, carrying the
following headline (C.P. Exh. 9):
Right-to-Work
HOUSE APPROVES
REPEAL OF 14-B
BY 221 TO 203
About the same date, the Company mailed to its
employees a reprint from the April 1965 issue of Nation's
Business of an article entitled "Workers vs. Unions." This
article recited what purported to be ten case histories of
hardships and injustices resulting from forced unionism
and constituted a strong argument against repeal of
Section 14(b).
c. Statements about Section 14(b) attributed to union
representatives or supporters
Union Representative Boyd credibly testified that he
never brought up the subject of Section 14(b) at any of the
meetings held with the employees but that a number of
employees asked questions about the matter and he
answered their questions. According to Boyd, he sought to
avoid discussing that subject during the campaign and in
that part of the country. When employees asked him
about it, he would explain to them that if Section 14(b)
was repealed, it would only give the Union a right to try
to negotiate a union shop agreement with the employers
involved, just as the Union would try to negotiate wage
and fringe benefits, that such a union shop provision is the
most difficult thing to negotiate and that the employees
might as well forget about it in negotiating a first contract
with the Company. Union Representatives Beam and
Williams credibly testified that they gave similar
explanations to the employees who questioned them about
Section 14(b).'
'One employee , A. H Lee testified that at a union meeting at the
Carlton Hotel , which admittedly took place before the election, Union
Representative Boyd, in response to a question from the floor , told the
employees that if the union won the election , they would have to join the
Union because there "would be a closed union , a closed shop." I am not
persuaded that Boyd , on this occasion - consistently with his testimony -
did not also explain the circumstances under which the employees might
have to join as including the repeal of Section 14(b) and the negotiation of
the union shop contract
Section 14(b) was not mentioned in any of the Union's
radio broadcasts and only once was any reference made to
it in any circular distributed by the Union to employees
prior to the election This circular distributed to
employees during the evening of August 3 and the early
morning of August 4, contains the following statement
(Co. Exh. 1, p. 118)
Only a few days ago, the United States Congress, in
taking the first step to REPEAL Section 14B of the
current Labor-Management Law, strongly supported
the right of employees to have GOOD UNION
ORGANIZATION.
The record leaves no doubt that Section 14(b) was a
lively topic of conversation among the employees both
before and after the election. This subject continued to be
of interest to the employees after the election because the
employees had reason to believe that if the Union was
certified and the Senate voted with the House for repeal
of Section 14(b), there was a strong possibility that the
Company and Union might enter into a union shop
contract.''
Because the subject of Section 14(b) and the related
topic of the relative cost of the initiation fee before and
after the Union came in or got a contract was discussed
both before and after the election, I am satisfied that a
number of the employees, when testifying, were confused
as to whether the statements they testified to were made
before or after the election." Thus, employee Wright,
testified that he believed it was before the election but was
not sure, that Union Representative Beam told employees
at a union meeting at Lmdale that Section 14(b) was
being filibustered, that when it was repealed, there would
be a closed shop, and that if they joined the Union then,
there would be no initiation fee but after the election the
initiation fee would be $50. Since the Lindale meeting was
the only union meeting Wright attended and Beam,
because of a death in his family, did not attend the only
meeting scheduled to be held in Lindale prior to the
election, I find that Beam did not make the statements
attributed to him by Wright prior to the election.
Similarly, Abron testified that he believed it was before
the election but was not sure, that Union Representative
Beam told employees at a union meeting in the union hall
located in an old house off the Mineola Highway that
"Tyler Pipe was thinking of going union" and that the
employees would have to join the union to keep their jobs.
Since, as already pointed out, the union hall to which
Abron referred was not rented by the Union prior to
September 1, 1965, I am convinced that the statements
attributed by Abron to Beam , if made at all, were not
made prior to the election. In like vein, employee Ivy
testified that before the election he had a conversation
with Union Representative Beam at the union hall, in the
presence of employee Peterbaugh, in which Beam told him
that if he did not sign a pledge card then, there would be
an initiation fee later if the Union came in. Although I
believe such a conversation may have occurred, it must
have occurred subsequent to the election and perhaps
before the Union was certified. This conclusion is based
on the fact that the Union had no hall prior to the
election , the union representatives meeting in each others'
hotel rooms and in such other places as they might agree
"Although the House of Representatives had voted to repeal Section
14(b) on July 28 , the bill was filibustered in the Senate That body rejected
cloture by the narrow margin of 48 to 47 on October 11, 1965. III
Congressional Record 18,646 and 26,581
1 In view of the Company 's pending objections to the election , the Union
TYLER PIPE INDUSTRIES, INC. 885
upon from time to time, and upon the further fact that
Peterbaugh was not active in the Union prior to the
election and had not even met Beam.':
Despite the fact that some employees erroneously
attributed to fellow employees wearing union buttons
(which, as I have found were not worn until after the
election) statements purportedly made prior to the election
to the effect that Section 14(b) was going to be repealed,
with the result that all employees would have to join the
Union eventually, some coupling this prediction with a
statement to the effect that by signing a union card then,
they could avoid having to pay a large initiation fee later,
I have no doubt that some such statements were made by
prounion employees prior to the election as well as
afterwards. (See testimony of King, Ivy, Coburn, Griffin,
Bobby Jones, White, and Erwin).
The question therefore rises as to what, if any, effect
such statements would likely have on the vote of the
employees. In the first place, it would seem plausible that
statements made by one employee having no
representative status in the Union to a fellow employee
would not likely be considered by the listener as
authoritative since the spokesman would be in no better
position to know the truth than the listener. It
nevertheless seems clear that prior to the election of
August 5 as well as for sometime thereafter it was widely
believed that Congress would repeal Section 14(b) of the
Act. Respondent's officials, too, apparently believed this
would happen and used this as an argument against
employees voting for representation by the Union. It is
difficult to see how a threat of compulsory union
membership in the event of a union victory would be more
likely to cause employees to vote for the Union than
against it. When Respondent told the employees at the
July 17 barbecue that if they voted the Union in and
Section 14(b) was repealed, they would have to join the
union to hold their jobs, and when on July 29, it posted a
newspaper clipping announcing that the House had voted
to repeal Section 14(b), Respondent obviously believed
that such repeal would tend to discourage employees from
voting for the Union. I am convinced, as stated by the
Court in N.L.R.B. v. Golden Age Beverage Co , decided
July 7, 1969 (C.A. 5), Court Docket No. 26286, 71
LRRM 2924, 2927, that "It is not unlikely that the
alleged misrepresentation of mandatory union
membership, if it had any effect at all on the employees'
free choice, inured to the benefit of the Company rather
than the union." This conclusion, independently reached,
is not inconsistent with the testimony of employees,
treated infra, as to what influenced their vote.
Let us turn now to the related question whether
statements of fellow employees or union representatives to
the effect that if the employees signed union cards before
the election or, according to the testimony of Bobby
Jones, before a union contract was signed, they would
have to pay either no initiation fee or a lesser initiation
fee than they would have to pay if the Union won the
election and employees had to join pursuant to a union
shop agreement. It is easy to understand how such
statements could influence employees to sign union cards
was not certified until September 30, 1965, but the Union was proceeding
in late August to select its employee negotiating committee and was
apparently also attempting to sign up more employees as members
"Peterbaugh credibly testified that before the election he did not even
know who was associated with the Union , that he never attended any
union meeting and that he voted against the Union in the election.
However, after the Union won the election , he did become active and was
elected chairman of the In - Plant Negotiating Committee
before the election in order to insure themselves against
having to pay substantial sums later and a strong
argument may be made against the consideration of such
cards in ascertaining a union's representative status by a
card check. However, it is difficult to see how such
statements could cause employees to vote by secret ballot
for a union which they did not want. In a similar situation
the Court of Appeals for the Fifth Circuit, in N.L.R.B v.
Crest Leather Manufacturing Corp , 414 F.2d 421 stated,
that: "since the waiver was not made contingent on how
the employees voted but was promised to all present
employees, it could not have materially affected their
ability to make a rational choice for or against the
union."" To similar effect, see Dit-Mco, Inc, 163 NLRB
1019.
3. Alleged misrepresentation by the Union regarding
wage rates paid at Western Foundry Company
On July 20, 1969, the Company sent each of its
employees a letter, enclosing what purported to be a
comparative list of job classifications and wage rates of
Respondent and of Western Foundry, a unionized plant,
explaining that if any employee's job did not appear on
the list, it was because Western did not have the same job
or the same jobs were on incentive and could not be
compared due to the differences in method of operation.
The employees were told that they obtained their wages
without an outside union and without having to contribute
part of their earnings "to pay big salaries and big expense
accounts of union officials," and it was suggested that the
employees should subtract 3 cents an hour, the estimated
cost of union dues, from Western Foundry rates in
comparing them with Respondent's rates. The list of job
classifications and wage rates, for the most part,
purported to show substantially higher wages being paid
by Respondent than by Western Foundry. (Co. Exh. 1,
pp. 102-106).
In a radio broadcast on July 25, Union Representative
Boyd replied to the Company's communication to its
employees (Co. Exh. 1, pp. 83-85) He stated in pertinent
p art:
The subject of Western Foundry is a very good one, but
it is certainly not the issue. We understand that Tyler
Pipe posted a list of rates which they claim are the list
of rates at Western and along with this distorted rate
list, they also posted a list of rates they claim are the
actual rates being paid at Tyler Pipe. What they failed
to do is this. They failed to explain that the Western
Foundry rates are the minimum rates paid to new
employees, while the rates they claim to be Tyler Pipe
rates, are the maximum rates that many Tyler Pipe
employees never reach . . If Tyler Pipe wanted to be
fair to its employees, I think they should post a list of
rates they pay their employees in a plant they bought in
1964 - the East Penn Foundry in Mckuney,
Pennsylvania. I think the employees of Tyler Pipe and
Foundry would be concerned with what other employees
of the Company are being paid, especially since profits
realized from their hard labor was used to buy this
plant in Pennsylvania . . . . We suggest to the officials
of Tyler that they post and post without delay the rates
'it is noted that no objection to the election was filed on the basis of the
type of union representation considered above, but I have treated it here
because it appears to be related to the representation concerning
compulsory membership which might result from a-repeal of Section 14(b)
of the Act
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay they are paying their employees in the
Pennsylvania plant and while they are doing this, also
tell them why the Tyler Pipe employees in Mckuney,
Pennsylvania, are paid so much more than the
employees at Tyler Pipe in Swan, Texas. This answer is
simple. The employees of East Penn are represented by
a union and what union'? They are represented by the
International Molders and Allied Workers Union,
AFL-CIO, who will soon be representing the Texas
employees of Tyler Pipe and Foundry. No, the rates at
Western Foundry is not the issue here, for we think
most people at Tyler Pipe and Foundry know very well
that Western rates and conditions are far better than
those afforded the Tyler Pipe employees, especially the
Tyler Pipe employees here in Texas . . . . Here we have
a company who by their own statement to the press in
1964 states that they are the second largest producer of
pipe and fittings in the United States and this same
company now compares their rates to a little company
employing approximately 300 people and further they
dare destort the facts to fool their employees.
In the same broadcast, the announcer stated: "Through
careful manipulation of figures they have tried to show
their workers that the unionized Western Foundry
Company pays less than Tyler Pipe and Foundry and
nothing could be further from the truth "
No further reference to Western Foundry appears in
any other union broadcast or in any of its circulars. There
is testimony, however, by two employees (Ivy and Erwin)
that a fellow employee told them that employees at
Western were making more than Respondent's employees.
The list of job classifications and rates attached to
Respondent's July 20 letter to its employees shows the
"Base ," "Job" and "Top" rates paid by Respondent for
certain job classifications and the "Starting" and "Top"
rates paid by Western. David McKie, Respondent's vice
president and industrial relations manager , explained at
the hearing that Respondent' s "Base" rate is the rate at
which an employee is hired. In 1965, after the employee
worked for 60 or 90 days, he was automatically paid the
"Job" rate. There was no time set for progression to the
"Top" rate, this being a unilateral decision of the
Company."
Respondent introduced at the hearing a copy of the
union contract with Western which was in effect in 1965
(Co. Exh. 15). An Appendix thereto, showing the job
classifications and wage rates in effect at Western on
January 2, 1964, and increased by 5 cents an hour on
January 2, 1965, and by 7 cents an hour on January 2,
1966, was later supplied by the Union and has been
received in evidence as "Co. Exh. 15(a)." From the
contract and Appendix it appears that new employees at
Western received a "Starting" rate for only 30 days, then
progressed to the regular job rate; that some employees
are paid on a piece-rate basis and that incentive rates are
paid to some ; and that shift differentials of 5 and 8 cents
an hour are paid to the employees. There are 105 job
classifications listed and very few of them correspond in
title to the 44 mentioned by Respondent in the list
appended to its July 20 letter. Even as to the few job
classifications having the same title, this Trial Examiner is
unable to determine whether the job content is the same at
both companies. Indeed, the Trial Examiner is unable to
"At present , according to McKie , employees remain at their base, or
starting rate, for only 30 days and Respondent now has only two instead of
the formerly three types of rates
determine from the evidence in this record whether or not
Western's rates for the same work performed by the great
bulk of Respondent's employees is lower or higher than
those paid Respondent's employees.
Even if it should be assumed that Respondent's rates
were higher than Western's, however, I am not persuaded
that the statements made by the Union in its July 25
broadcast, or by the two employees to fellow employees,
could constitute such misrepresentations as would affect
the results of the election. The Union, while attacking
Respondent's figures as misleading and incorrect, and
contending that Western's rates were in fact higher, told
the employees that Western rates were not the issue and
argued that Respondent's rates in Swan should be
compared with the rates it was paying at his own
unionized plant in Pennsylvania rather than with a small
company like Western. Moreover, the Union's statements
were more general than were Respondent's and were made
in a broadcast almost 2 weeks before the election. The
employees, having Respondent's version of the exact job
classifications and comparative rates in black and white
before them for a study would, in my view, more likely be
impressed by Respondent's representations than by a
perhaps fleeting recollection of what was said in the
Union broadcast.
It must be concluded therefore that Respondent has not
shown that the Union's reply to its representations
regarding Western's rates or the statements of any
employees on this subject improperly influenced the results
of the election.
4. Alleged Union misrepresentation regarding
Respondent 's retirement plan
On May I, 1965, Respondent put into effect a
Retirement Plan for its employees (Co. Exh. 11). To its
employees generally, it distributed, prior to the election, a
pamphlet entitled "Retirement Plan for Employees of
Tyler Pipe and Foundry," in which it purported to give a
description of the plan in summary question and answer
form (C. P. Exh. 4).
For many years prior thereto, Respondent had in effect
a Profit Sharing Trust for its employees who had worked
for it as long as 2 years, and under the newly inaugurated
Retirement Plan, it was provided that the employees'
account in the Profit Sharing Trust would be used to pay
the monthly retirement income to be paid each employee
who was retired, either voluntarily or involuntarily, and
that if and when the employees' share in the trust fund
had been exhausted, Respondent would then pay the
monthly benefits. All regular full-time employees except
those hired on or after May 1, 1965, at age 60 or over are
eligible for the plan. With respect to discontinuance of the
Retirement Plan, question and answer numbered 19 of the
pamphlet provides the following information:
Q. Can the Company discontinue the plan?
A. When most companies adopt retirement plans,
they expect to continue the plan but they do usually
reserve the right to discontinue the plans at any time in
the future if conditions should warrant it. Under the
terms of the plan adopted, Tyler Pipe and Foundry
Company also reserves the right to discontinue but
expects to be able to continue the plan. If the plan were
discontinued, all payments by the company would be
stopped and no liability would exist as of the date of
termination or discontinuance of the plan.
In a radio broadcast on July 25, 1965, following the
TYLER PIPE INDUSTRIES, INC. 887
distribution of the pamphlet by Respondent, Union
Representative Boyd made the following statements
regarding the Retirement Plan (Co. Exh. 1, pp. 81-82):
I have reviewed this pamphlet put out by the Company
on the retirement plan and quite frankly I am surprised
they would dare insult their employees with this thing
they call a retirement plan. I think what the Company
is trying to do is to bring about the forced retirement of
their older employees. If one would read the pamphlet
carefully they would find that the Company reserves the
sole right to retire any employee and also to terminate,
to actually stop the plan at any time they see fit. So
then it means simply this. When the number of older
employees, after giving the Company many years of
their hard labor and are ready for increased vacations
and are a slight insurance risk, all the Company would
have to do is to retire them and hire new and younger
employees who would be required to work much harder
than the older employees and who would not be entitled
to any vacation or holiday pay, nor according to the
Company's pamphlet or in my opinion, would these
younger employees be entitled to the retirement plan,
and they would be expected to work for much less than
the employees who they have forced to retire and
against his will. So then, as the pamphlet states, the
company can stop the retirement pay, whatever little it
is, and leave the forced retired employee with nothing
but a dream of how hard he worked for Tyler Pipe and
for the Board of Directors that he helped make
millionaires. I think this so-called retirement plan is a
joke, and an insult to every employee of Tyler Pipe and
Foundry Company. As to the cost of this plan. I think
it cost the Company nothing at all, for in my opinion, it
certainly is not worth anything to the employees. I
think the cost of printing this fancy pamphlet is the
greatest cost of all.
As Boyd interpreted the pamphlet, and as it would on its
face appear to say, Respondent could discontinue the
Retirement Plan at any time it chose and thereby stop all
payments to retired employees, without incurring any
liability under the Retirement Plan. It was on this
provision of the plan as described by Respondent in the
pamphlet that Boyd based his scathing criticism of the
plan.
At the hearing, Respondent introduced a copy of the
complete, detailed Retirement Plan (Co. Exh. 11) and its
industrial relations manager, McKie, gave testimony
which seemed to imply that an employees' interest in the
plan which had already become vested could not be cut off
by any action of the Company in terminating the plan. An
examination of the terms of the plan, however, do not
appear to bear out this interpretation. Thus, it is provided
in Section 4.1 of the plan that:
. The Company intends, but does not guarantee, to
make such payments as are required to provide the
benefits under the plan. Neither the company nor any
of its officers, agents or employees, nor any members of
its board of directors, guarantees, in any manner, the
payment of such benefits.
Section 4.2 of the plan provides:
The plan may be amended by the company from time
to time in any respect whatever by resolution of the
board of directors of the company specifying such
amendment.
Finally, Section 4.3 provides:
The plan may be terminated by the company at any
time by a resolution of the board of directors of the
company, duly certified by an officer of the company,
specifying that (a) the plan is being terminated or (b) all
payments by the company thereunder are being
permanently discontinued. The plan shall automatically
terminate only upon adjudication by a court . . In the
event of any such termination, the company shall have
no liability under this plan to any person whether or not
theretofore retired.
I am not persuaded in the circumstances that Boyd's
statements, in the radio broadcast, of his views and
opinions regarding the retirement plan contained any
substantial or material misrepresentations. In any event,
the employees had copies of the pamphlet to which Boyd
referred and were in a position to make their own
appraisal of the plan. Moreover, if the Company
considered any of Boyd's statements on this subject unfair
or inaccurate, it had ample opportunity between July 25
and the August 5 election to give the employees its views
on the matter.
5. Alleged appeals by the Union to racial prejudice
In its Objection 6, the Company alleges that during the
election campaign , the Union improperly appealed to the
racial prejudice of the employees by untruthfully charging
the Company with discrimination against employees on
account of their race and by appealing to racial prejudice
in its overall campaign (Co. Exh. 1, p. 30). 1 find no
substantial evidence in the record to support this charge.
As already noted, the Union brought in a Negro
organizer , Wilbert Williams, to assist in organizing the
Company's plant. He credibly testified that some of the
Negro employees with whom he met expressed concern
about whether they would be given a chance for
promotion to jobs at which they had not theretofore been
given an opportunity to work and that he told them that
the Union stood for their right to work as any other man.
He expressed the view that under the Union they would
receive better wages and improve themselves as full
citizens of the society in which they lived. When an
employee told him that there was discrimination against
Negroes at the plant, he would tell the employee that the
Union would eliminate discrimination
In similar vein , according to employees Wright and A.
H. Lee, Boyd told the employees in response to a question
at a union meeting , that under the Union, there would be
no discrimination on account of race and that all
promotions would be in accordance with seniority. Negro
employees at the plant likewise discussed whether the
Union would help them improve conditions for their race
and fellow employees supporting the Union argued that
the Union hoped to get better working conditions for all
employees, regardless of race (testimony of Griffin and
King).
The Company has adduced no evidence that the Union
made any improper appeals to employees based on their
race . See N.L R.B. v. Baltimore Luggage Company, 387
F.2d 744, 746-747 (C.A. 4).
6. Alleged misrepresentations by the Union regarding
earnings received by the Company and its officials
and stockholders
a. The discussion of Company finances in the Union's
broadcast on August 1, 1965
In a radio broadcast on August 1, 1965, Union
Representative Boyd , among other things, discussed the
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's finances, purporting to give the sales figures
for the years 1961 through 1964, the increases in the
amounts received by stockholders for each share of stock
during these years, the Company's projection of net sales
and earnings per share for the year 1965 and the amount
of the salaries of the members of the Board of Directors.
Respondent attacks the accuracy only of those figures
relating to the amounts paid on each share of stock. In
the broadcast, Boyd, after referring to the fact that the
Company's sales had increased nearly $12,000,000
between 1961 and 1964, stated (Co. Exh. I, pp. 93-94):
This is astounding, but these are the facts and the
Company will not deny them What does this mean to
the Company's board of directors and stockholders.
This means that these gentlemen and the principal
stockholders, while in 1960 received 71 cent a share
from their stock, in 1964 these same gentlemen received
$1.42 per share on their stock, exactly twice as much as
in 1960. What about their earnings in the years between
1960 and 1964. In 1961 each share of stock held by the
members of this exclusive club paid $1.36 and in 1962,
a share paid $1.14, in 1963, $1.22. Now this would
make a total of $5.85 per share . On January 8,
1965, the Company stated to the stockholders and the
board of directors and I quote: "Our projection for
1965 includes net sales of approximately $32,000,000
and earnings per share in the $1.50 to $1.60 range."
The Company further states "We believe these
estimates to be conservative," in otherwords they
believe even these high figures to be too low Let me
say here these earnings to the board of directors on the
dividends on their stock holdings alone should be an
insult to every employee at Tyler Pipe ... .
As pointed out by Respondent's secretary-controller,
Kline, at the hearing, the figures recited by Boyd as the
amounts paid on each share of stock for the years 1961
through 1964 were the amounts earned on each share
(based on average shares outstanding during each year as
adjusted for stock dividends), not the amounts of cash
actually paid to shareholders. These amounts actually paid
as cash dividends were only about 25 percent of the
amounts earned." Respondent's annual report for 1964
received in evidence as "Co. Exh. 8," supports Kline's
testimony regarding the cash payments made to each
stockholder and shows that even the cash and stock
dividends together did not amount to as much as the "net
income per share of common stock." Boyd, accordingly,
was incorrect in his recitation of the amounts received or
paid on each share of stock between 1961 and 1964.
However, he was at the same time correctly referring to
these amounts as earnings at one point and he correctly
designated the 1965 projected net income per share as
earnings. I am not convinced, in the circumstances, that
Boyd was deliberately attempting to mislead the
employees. I do not believe that this was the kind of
misrepresentation that would likely influence the vote of
the employees. The point Boyd was obviously seeking to
make was that the Company was earning a lot of money
and could afford to share with its employees a greater
share of those earnings . The fact that in parts of his radio
broadcast he carelessly spoke of earnings per share
synonymously with payments per share, would not in my
view, substantially affect the accuracy of the point he was
attempting to make. No employee testified that he was
misled or influenced by Boyd's failure to distinguish
between earnings on each share and the amount of those
earnings which were actually paid in cash to the
stockholders
In its brief, Respondent refers me to the Board's
decision in Halsey W. Taylor Company, 147 NLRB 16,
18-19, as controlling authority for its argument that the
misrepresentation in issue requires that the election be set
aside. In the Taylor case, it was found that the Union
within 15 hours before the voting began and too late for
the employer to make an effective reply, distributed a
leaflet to the employees in which it told them that the
employer's annual sales were $3,000,000 and that in one
month an amount equal to almost 80 percent of the
employer's annual sales was distributed to the
stockholders, whereas in fact the 80 percent figure was the
"net worth (Stockholders Equity)" as of the end of the
year and the stockholders received only about 2 percent of
this amount in dividends.
Aside from the fact that Boyd's statements which I
have found factually incorrect were not the kind of gross
misrepresentation shown in the Taylor case, his statements
were contained in a lengthy radio broadcast and were so
interspersed with other discussions about Respondent's
sales, profits and salaries paid members of the Board of
Directors, the correctness of which is not challenged, that
I think it doubtful that any listener would remember the
detailed figures which Respondent challenges as incorrect.
In the Taylor case, the misrepresentations were made in a
circular distributed to employees and could be carefully
read and reread by the employees, thereby tending to
make a more permanent impression upon their minds.
Furthermore, in this case but not in the Taylor case,
Respondent had ample opportunity before the election to
rebut the statements made in the radio broadcast. It
undoubtedly would have done so at its mass meetings with
its employees on August 3 if it had considered any of
Boyd's misrepresentations to be of a serious nature.
b. The handbill distributed on August 2 and 3
Between 9 and 11.45 p.m. on August 2 and between
5:30 and 7 a.m on August 3, the Union distributed at the
plant gates a handbill entitled "Get Ready For: The
Greatest Show On Earth." This purported "Show" is
divided into four acts Respondent complains of the
following statements contained in Act 4 (Co. Exh. 1, p.
116):
THE GRAND FINALE: Mr. Harvey himself .... and
in person . . . . back from a long vacation in CANADA
. and fresh out of a Board of Director's meeting,
will make his usual DEAR EMPLOYEE SPEECH
telling you how much he appreciates the SEVEN
MILLION DOLLARS, his LOYAL EMPLOYEES
have made for him . PLUS SIX and A HALF
MILLION DOLLARS you made for the Board of
Directors & Stockholders . . . . (See Moody's Manual
of Industrials in Tyler Public Library/ 1965 edition-page
1732 for these facts).
At the page referred to in the handbill, the bound volume
of the 1965 edition of Moody's Manual does not mention
Tyler Pipe, but Union Representative Boyd testified that
with the assistance of a librarian in the Tyler Public
Library, he found material in a 1965 supplement of
"In addition to cash payments the stockholders received stock dividends
in 1963 of 26,203 shares and in 1964 of 27,109 shares of stock (Co. Exhs 8
and 9).
TYLER PIPE INDUSTRIES, INC. 889
Moody's at the page referred to from which he deduced
that the employees of Tyler had made for President
Harvey and other stockholders the amounts recited in the
handbill. According to Boyd, the material he read
disclosed that the Company had 1,026,000 shares of stock,
approximately 52 percent of which was owned by Harvey
and his family. The market quotations on Tyler stock at
that time, according to Boyd, showed that the stock was
selling for $13.50 a share.'" Multiplying the total number
of shares by $13.50, Boyd deduced that the total value of
the stock would be over $13,500,000; that Harvey's 52
percent would be worth over $7,000,000 and that the value
of the stock of the remaining stockholders would be over
$6,500,000.
While Boyd's reasoning might have enabled him
roughly to estimate the value of the stock owned by
Harvey and the other stockholders, it afforded no basis
whatever for judging the extent of the employees'
contribution to the worth of the stockholders' stock.
Boyd's gross exaggerations as to the extent of the
employees' earnings for the stockholders is reprehensible.
Nevertheless, the very nature of these representations are
such that they are likely to be taken with a grain of salt
by the employees, for it is obvious that no one can
determine with precision the extent to which the work of
employees contributes to the worth of the employer. In
my opinion Boyd's exaggerated claims are not the type of
conduct which would reasonably tend to have any
substantial impact on the election. No employee,
moreover, testified that his vote was influenced by this
leaflet.
7. Union handbill misrepresenting the position of
churches and United States Government regarding
the organization of employees
Between 9 and 11:45 p.m. on August 3 and between
5:30 and 7:05 a.m. on August 4, the Union distributed at
the plant gates a handbill, prepared by Union
Representative Boyd, entitled "Our Best Wishes for your
Success" (Co. Exh. 2, printed with sign photo omitted, in
Co. Exh. 1, pp. 117-118). This handbill, after charging the
Company with having kept up a fear campaign to deny
the employees the right to organize, goes on to say:
You will WIN YOUR ELECTION . . . because
responsible people in all walks of life have repeatedly
SUPPORTED THE RIGHT OF WORKING MEN
TO ORGANIZE. President Kennedy, President
Johnson, President Eisenhower, President Truman and
others ... . . Church Leaders of ALL FAITHS urge
employees to organize . and the United States
Government STRONGLY URGES employees to
Organize, and GUARANTEES you the RIGHT and
PROTECTION.
Respondent takes strong exception to the statement that
"Church leaders of ALL FAITHS urge employees to
organize . and the United States Government
STRONGLY URGES employees to Organize."
With the exception of Rev. D. F. Harris, pastor of the
Ebenezer Church in Tyler, who appeared in support of the
Union in the Union's July 25 regular radio broadcast, the
Union never identified any church leaders as urging
employees to organize and no basis appears for the
Union's sweeping statement regarding church leaders.
Employees, however, would be in as good a position as
the Union to appraise the truth of such a claim and I
believe they would readily recognize it as organizational
puffing and propaganda
What troubles me more is the statement that the
United States Government strongly urges employees to
organize. Boyd's only explanation at the hearing (but not
to the employees) for having made this statement is that
"the Act itself was for the purpose of encouraging
collective bargaining ,"" that the representatives in
Congress would not have voted for the Act except for
their desire to encourage collective bargaining and that it
is common knowledge that certain government officials,
including some presidents, have made statements
favorable to labor The fact that the Act may have as a
purpose the encouragement of collective bargaining to
eliminate or diminish the causes of industrial strife or
unrest which interfere with the free flow of commerce, and
may guarantee and protect the right of employees to
organize, clearly does not warrant an inference that the
United States Government urges employees to organize
Section 7 of the Act, as Union Representative Boyd surely
knew, guarantees the right of employees to refrain from
joining as well as their right to join labor organizations.
These false and irresponsible characterizations of the
position of the United States Government are inexcusable
and should be strongly condemned.
Nevertheless, the fact that the statements were untrue
and apparently deliberately made for the purpose of
influencing the employees' votes, does not mean that they
did in fact have that effect. As aptly stated by Chief Judge
Hutcheson in Anchor Manufacturing Company v.
N.L.R B, 300 F.2d 301, 303 (C.A 5), and quoted with
approval in N.L.R.B. v. Bata Shoe Company. 377 F 2d
821, 829 (C.A. 4) (a case in which the Union had told
employees that union contracts had the backing of the
United States Government and the sooner they signed a
union card, the sooner the Union and the United States
Government could go to work for them), "The true rule is
not `that when false statements are made they constitute
an interference with free choice, but that when false
statements are made which constitute an interference with
free choice, for or against a bargaining representative, an
election should be set aside.' " The Court of Appeals in
this case had the union leaflet here in issue before it and,
while specifically condemning the false statements
contained therein , was unwilling to conclude that the
election should be set aside because of them in the absence
of evidence as to the effect of such statements on the vote
of the employees.
I, too, while disturbed over the Union's use of such
reckless and unfounded characterization of the
Government's position with respect to employees
organizing , am unable to conclude, on the basis of the
leaflet alone, that the employees would believe or be
influenced in their voting by such union tactics. A careful
examination of the record discloses not a scintilla of
"Respondent 's secretary -controller , Kline, testified that $1350 was the
price of the original public offering of Tyler stock in 1964. Although not
positive , he did not believe that the price reached as high as $13 in 1965
and in July it was at a peak of $11.50 He testified , however , that when
Saturn Industries bought the Company in August or September 1968, it
paid $40 a share for the Company' s stock.
"This statement apparently is in reference to that part of Section 1 of
the Act which declares it "to be the policy of the United States to
eliminate the causes of certain substantial obstructions to the free flow of
commerce . . by encouraging the practice and procedure of collective
bargaining and by protecting the exercise by workers of full freedom of
association "
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence that any employee's vote was influenced by that
circular."
8. Alleged failure of the Union to abide by
preelection agreement with the Company not to
engage in last minute electioneering
Objections 2, 3, 4 and 5 to the election relate to an
alleged failure by the Union to abide by an agreement it
made with the Company representatives that neither side
would engage in electioneering subsequent to the
pre-election conference held on the day before the
election. This was a private oral agreement in which the
Board representative was not a participant. The parties
are not in agreement as to the precise terms of the
agreement. The Company contends that the
no-electioneering agreement applied to all types of
electioneering and the Union contends that it applied only
to the making of speeches by the Company to groups of
employees and the distribution by the Union of literature
to the employees and the calling of employees on the
telephone or personally talking to them. Both sides
refrained from making speeches and distributing literature
to the employees after the conclusion of the pre-election
conference on August 4, but the Union failed to remove a
large billboard which it had erected on the highway about
3 miles from the plant and continued to make spot radio
announcements throughout the day on August 4 as well as
August 5. 1 am inclined to accept the Company's version
rather than the Union's version as to their agreement and
I conclude that, at least with respect to the spot
broadcasts, the Union engaged in a breach of faith by
continuing them. The question, then, is whether this
breach of faith could reasonably be considered as having
influenced any employees to vote for the Union or
"Although not specifically made the basis for any of the objections to
the election , Respondent was permitted to adduce testimony , not connected
with the Union leaflet ,' to the effect that the United States Government
was injected into the campaign by means of oral statements of Union
officials In its brief, Respondent describes testimony of employees Wright
and Abron regarding statements purportedly made by Union Organizer
Beam to the effect that the Government would force the Company to sit
down and negotiate a contract , that the Government supports all unions
and that the Company would have to go union in order to continue selling
goods to the Government
These employee witnesses , Wright and Abron, testified that they
believed , but were not sure, that Beam made these statements before the
election However , their description of the meeting places at which these
alleged statements were made makes it clear that the statements if made,
occurred subsequent to the election . Thus , Wright testified that he attended
only one union meeting the one held at Lindale where he was selected
as a member of the in -plant committee Since Beam never attended any
meeting at Lindale prior to the election , but did subsequently , and the
in-plant committee was not selected until after the election , any statements
made by Beam at a union meeting in Lindale had to be subsequent to the
election Similarly , Abron testified that the statements he attributed to
Beam were made at the union hall, an old house off the Mineola Highway,
and as already shown , the Union did not have any union hall prior to the
election The old house described by Abron was not used as a union hall
until after the election when the Union rented it on September I.
Respondent was also permitted to adduce evidence as to statements
made by employees to each other and one employee , Griffin, testified that
employee Peterbaugh (who was not active in the Union prior to the
election and even voted against the Union ) told him that the "Federal
Government was behind the Union." Another employee , King, testified
that a fellow employee , Joe Smith , told him "that we would get the
Federal law behind us, we had all the protection in the world we needed "
Still another employee, Erwin , in a deposition taken subsequent to the
conclusion of hearing , stated that employee Love (who testified that he was
whether it in fact had any such result. I am convinced that
it did not.
The billboard was on the side of the Mineola -Highway,
about 3 miles from Respondent's plant. It was placed
there at some time prior to the pre-election conference
and remained there until after the election . A photograph
of the billboard appears on the union leaflet received in
evidence as "Co. Exh. 2." It contains the Union slogan,
"Freedom from Fear - Security For The Future" and
appeals to the employees to vote "yes." Respondent has
pointed to nothing misleading or objectionable in it and I
see nothing improper in it . The presence of the billboard
on the side of the highway during the election violates no
Board rule and I cannot understand how it could possibly
have improperly influenced the votes of the employees.
The parties stipulated at the hearing that the Union
prepared and had broadcast over a local radio station a
series of spot announcements, lasting about I minute each,
commencing on August 2 and continuing through August
5, 1965. On August 5, six of these spot broadcasts were
used, but in ten broadcasts. (These spots are printed in
Co Exh. 1, at pp. 98-101, each paragraph thereof
apparently being a separate broadcast). I do not
understand that Respondent is objecting to the content of
these broadcasts and I recognize nothing therein as
exceeding the bounds of legitimate electioneering.
Respondent's objection, rather, appears to be that the
broadcasts may have been heard at the plant on election
day over transistor radios or loudspeakers If the
broadcast had been made over loudspeakers or radios at
the plant under such circumstances as to warrant an
inference that the employees were being compelled to
listen to them, the broadcasts would have been vulnerable
under a rule announced by the Board in Peerless Plywood
Company, 107 NLRB 427, prohibiting mass meetings of
employees at the plant at which compulsory audience
speeches are made by either party during the 24-hour
period preceding the election. Although a number of
witnesses were questioned about this matter (McKie,
Wright, Ivy, Stines, Griffin, and Bobby Jones), none had
heard or knew of any radio or loudspeaker being in
operation at the plant during the period in question. Nor
was any evidence adduced to show that any employee
heard the broadcasts away from the plant and before he
voted that day, or within 24 hours prior thereto. It
accordingly cannot be assumed that the spot broadcasts in
question had any improper influence on the employees'
vote.
9. Influence of Union's conduct on vote of the
employees
Pursuant to the directions of the Court and the Board
in remanding this case for a full hearing on the
Company's Objection to the Election, evidence was
received with respect to the effect of the Union's
campaign methods upon the vote of the employees.
Respondent called 13 employees to testify Their
testimony relating to what influenced their vote is
summarized below.
not active in the Union prior to the election ) told him that "the
Government was going to put a union out here at Tyler anyway, you
know , if we didn ' t go on and vote for it and get it in ourselves ." Testimony
of each of these Company witnesses , however, does not indicate that these
alleged statements had any influence on their vote (see treatment , Infra, of
testimony of employees regarding what influenced their vote).
TYLER PIPE INDUSTRIES, INC. 891
Henry L. Wright, who was called to testify about
alleged statements by Union Representative Beam made
at a Lindale meeting, which I have found occurred
subsequent to the election, stated that he believed some
but did not believe other things the Union said (without
specifying what he did or did not believe), that he listened
to what both the Company and the Union said, talked the
matters over with his wife and then made up his own
mind as to how he would vote. He preferred not to tell
how he voted.
Steve King, who was called to testify about remarks
made by fellow employees, stated that he saw all of the
union literature passed out at the plant and that he voted
against the Union.
Homer Abron, who was called to testify in regard to
alleged statements by Union Representative Beam, at the
union hall on Mineola Highway, which I have found
occurred subsequent to the election, stated that he voted
for the Union. He testified that he read the union
pamphlets as well as the Company literature, that he
heard Company officials Harvey and Warner speak, and
that after listening to both sides, he voted the way he
wanted to, regardless of what anybody had told him.
Jessie N. Ivy, who testified about conversations with
several employees and about a conversation with Union
Representative Beam at the union hall on Mineola
Highway (which I have found occurred subsequent to the
election), stated that he saw most of the Union pamphlets;
that he read some and believed part of what he read but
did not believe other parts of it; and that he heard the
statements made by Company representatives With
respect to making up his mind about how to vote, he
testified- "Well, I took a little of both and tried to make
the best out of it, and voted the way I felt." He stated
that he voted for what he thought was best for him but
preferred not to tell how he voted.
Frank E. Sawyer, who testified regarding statements
made by Union Representative Beam at a meeting in
Lindale (which I have found occurred subsequent to the
election), stated that he saw the Union leaflet entitled
"Greatest Show on Earth," but remembered reading only
the first three acts (not Act 4 to which Respondent has
strenuously objected); and that he heard both the
Company's and the Union's side on most things. He
testified that the way he voted represented his own
independent thoughts and that he voted the way he wanted
to, regardless of what people had said.
Michael F . Stines, Jr., who testified in regard to alleged
statements by fellow employees, stated that he heard the
speeches of Company officials Harvey and Warner about
the Union; that he heard the major portion of the
propaganda put out by both the Company and the Union;
and that he read some of the pamphlets put out by the
Union (without specifying which of them). He stated that
he voted the way he wanted to vote: "It is the same as if I
walked in to make a presidential vote. It would be my
own decision."
E. T. Coburn, who testified about statements of fellow
employees allegedly made before the election, stated that
he heard the speeches of Company officials about the
Union before the election; that he saw some of the Union
pamphlets distributed before the election but "didn't pay
any attention to them"; and that he read some of them
and heard employees discuss them as well as literature put
out by the Company. He testified that he made up his
own mind about how to vote and voted the way he wanted
to regardless of what the Company or the Union said.
Albert Griffin, testified that some fellow employees told
him before the election that if he joined the Union then, it
would cost him only $10 but that if he waited until after
the Union came in, it would cost him $50 and that this
statement had a "little bit" of effect on the way he voted.
He further testified that these same employees also told
him that if the Union was voted in, he and other Negroes
would be promoted on the basis of seniority, without
regard to race, creed or color and that the Union hoped to
better the working conditions of all the men in the plant
and that he also took these statements into consideration
as well as statements made by the Company officials,
Harvey and Warner. He testified that he made up his own
mind in deciding how to vote. He was not asked and did
not tell how he voted.
A. H. Lee, who testified regarding statements made by
Boyd at a union meeting held before the election, stated
that he did not vote
John Prater, was called to give testimony regarding
statements made to him about Section 14(b) of the Act by
a man handing out union leaflets before the election. He
testified that when one employee asked him, Prater, how
he was going to vote, he replied that he was going to vote
against the Union. However, Prater preferred not to tell
how he did vote. Prater also testified that when four other
employees asked his advice about how to vote, he sent
them to the foreman for advice.
Bobby Jones, was called to testify regarding statements
made by a leadman prior to the election about Section
14(b) and an initiation fee to be charged after a union
contract was signed. He testified that he preferred not to
tell how he voted but when asked what influenced his vote
in the election, he replied. "It was some personal things
around the shop that I worked in. I thought I wasn't
getting a fair deal and I thought it was possible that I
could get one." When he voted, he considered everything
that had come to him from the Company and the Union,
and his "personal feelings." He read some of the Union
pamphlets "and there were some parts that [he] just didn't
go for," but he could not recall exactly what those parts
were.
Jimmy Joe White, was called to testify regarding
statements made to him before the election about Section
14(b) and the initiation fee. He testified that he refused to
sign a union card offered him by one of the employees.
He saw the union pamphlets that were passed out,
including one entitled "Get Ready for the Greatest Show
on Earth." He read some of the pamphlets but did not
take some of them because he "didn't want to read them
to start with." He testified that nothing the Union said
influenced his final vote He preferred not to tell how he
voted
Jerry Erwin, gave testimony by deposition (Co Exh.
17) after the conclusion of the hearing about statements
allegedly made to him by fellow employees prior to the
election. He testified that after the election, these
employees asked him why he was not going along with
them in support of the Union and he replied. "I wasn't
going, because that union wasn't going to take care of me
and pay my bills." He stated that he preferred not to tell
how he voted, but when asked what influenced his vote, he
replied. "I will put it like this. I don't know whether that
will be straight or not, but I like my job and I appreciate
my job like it was, so I can just say I was satisfied "
Testimony of employees as to what influenced them in
voting involves, by its very nature, a probing of the minds
of the employees on the day they testify as to what was in
their minds in the past. In many types of situations this
kind of subjective intent testimony has been regarded as
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so unreliable as to warrant its total rejection or the
Board ' s refusal to give it any weight N L R B v.
Donnelly Garment Co , 330 U S. 219, 231, N.L.R.B v
Gissel Packing Co ., 395 U S 575 N L R.B . v. Winn-Dixie
Stores, Inc , 414 F .2d 786 (C A. 5). But the Court in this
case and in its earlier decisions in Trade Winds Co v
N.L.R B , 413 F.2d 1213 (C.A. 5), and Home Town
Foods, Inc. v. N L.R.B, 379 F.2d 241 (C.A. 5), while
recognizing that "The courts have usually applied an
objective test to determine whether interference with an
election is sufficient to set it aside ," nevertheless believed
that "subjective evidence of fear and coercion , however,
may carry the day as well."
After carefully considering the subjective as well as the
objective test in this case , I am not persuaded that any
misrepresentations or other misconduct on the part of
Union representatives or supporters had any substantial
effect upon the vote of the employees.
support of a compensatory type of remedy for
Respondent ' s refusal to bargain , stating that she did not
consider that issue within the scope of the remand order.
Respondent , in its brief, has renewed its request for this
special remedy. In again rejecting this request because the
matter does not appear to be within the scope of the
remand order , the Trial Examiner does not intend to
indicate whether or not such an order might otherwise be
appropriate under the facts of this case . This Trial
Examiner , in another situation, did recommend a
compensatory type of remedial order for a Section 8(a)(5)
violation and that recommendation was adopted by the
Board in Petrolane-Franklin Gas Service. Inc . 174 NLRB
No. 88
On the basis of the foregoing findings of fact and
conclusions of law and on the entire record before me, I
recommend the issuance of the following:
CONCLUSIONS OF LAW
It is concluded that the Regional Director properly
overruled the Company' s Objections to the Election and
certified the Union as bargaining representative in the
underlying representation case, Case No. 16-RC-3951, and
that the Company ' s asserted reasons for refusing to
bargain with the Union are therefore lacking in merit.
The Union' s Request for Special Remedy
At the hearing in this case , the Trial Examiner rejected
repeated attempts by the Union to adduce evidence in
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Relations
Board hereby affirms its Decision and Order heretofore
issued against Respondent on November 4, 1966, and
orders that said Respondent , Tyler Pipe Industries, Inc.,
its officers, agents, successors and assigns , take the action
set forth in said Order, which is reported at 161 NLRB
784.