Uniroyal, Inc.

National Labor Relations Board - Board DecisionsFeb 18, 1968

169 N.L.R.B. 918 (N.L.R.B. 1968)

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Uniroyal , Inc.' and United Rubber , Cork , Linoleum and Plastic Workers of America , AFL-CIO. Case 23-CA-2018 February 18,1968 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On December 3, 1965, the National Labor Rela- tions Board issued a Decision and Order2 in the above-entitled proceeding, in which it affirmed, without comment, the Trial Examiner's granting of the General Counsel's motion for judgment on the pleadings, adopted his findings that the Respondent had violated Section 8(a)(5) by refusing to recog- nize the Union after it was certified by the Board, and ordered the Respondent to take specific action to remedy such unfair labor practices. Sub- sequently, the Respondent filed with the United States Court of Appeals for the Fifth Circuit its petition to review and set aside the Board's Order, and the General Counsel filed an answer to the peti- tion and a cross-petition for enforcement of the Order. Thereafter, on February 20, 1967, the court handed down its decision,3 setting aside the Board's Order and remanding the case to the Board "to first conduct a full hearing on Objections 8, 9, 10, 11, and 12 to the election [conducted on November 6, 1964],' without limiting the evidence by considera- tions of when discovered or whether previously available, and thereafter to determine under ap- propriate rules, regulations and procedures the un- fair labor practice charge." On April 4, 1967, the Board issued an Order reopening the record and directing a hearing before a Trial Examiner for a full hearing on the said objections, consistent with the court's remand. On September 22, 1967, Trial Examiner Morton D. Friedman issued his attached Decision on Re- mand in which he recommended dismissal of the complaint. Thereafter, the Respondent filed limited exceptions and brief in support of the supplemental Decision and a supplemental brief, and the General Counsel and Charging Party filed exceptions to the Trial Examiner's supplemental Decision, and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the reopened hearing and finds ' The name of the Respondent has been changed from United States Rubber Company to Uniroyal, Inc. 2 155 NLRB 1298. a 373 F.2d 602. Case 23-RC-2307. that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's supplemental Decision on Re- mand, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer only to the extent consistent herewith. 1. The parties disagree as to the issues before the Trial Examiner for decision, the Respondent contending that he added an unnecessary factor and the General Counsel and Union arguing that he ex- cluded some questions improperly. We find merit in the exceptions of the General Counsel and the Union. The objections to the election concerned alleged misrepresentations by the Union, which the Respondent contends precluded an informed choice by the employees. The usual elements concerning which inquiry would be made are (1) whether there was a substantial misrepresentation of fact, (2) at a time when the other party or parties were prevented from making an effective reply, and (3) so that the misrepresentation might reasonably be expected to have a significant impact on the election.5 In addi- tion, in evaluating the probable impact, the Board considers, as one factor, whether the person making the statement possesses intimate knowledge of the subject matter so that the employees involved may be expected to attach added significance to the assertion.6 The Trial Examiner allowed the introduction of evidence of all these matters, but in his Decision states that the court of appeals had decided, and he was bound by the holding, that the Respondent did not have adequate time to reply and that the person making the statement involved had special knowledge of the facts asserted about the operation at Pecos, Texas, with which a comparison of driv- ing requirements was made, tending to inspire reliance on his statements. The Trial Examiner therefore determined that only two issues were be- fore him: (1) Whether or not there was in fact a misrepresentation,' and (2) if so, whether in fact it had sufficient impact upon the election to warrant setting the election aside and vacating the certifica- tion. Respondent argued that it was sufficient to establish that a material misrepresentation of fact occurred, and that it was superfluous to require in addition, a showing that such misrepresentation had significant impact on the election. The question to be determined is whether "the misrepresentation ... may reasonably be expected to have a significant impact on the election [emphasis supplied] ,"8 and it is well settled that in making such a determina- Hollywood Ceramics Company, Inc., 140 NLRB 221, 224. s 1d. at fn. 10. The Trial Examiner was of the view that the court had already decided that, if it were a misrepresentation, it was material. " Hollywood Ceramics Company, Inc., supra. 169 NLRB No. 128 UNIROYAL 919 tion , the subjective reaction of employees is im- material. Accordingly , while agreeing with the Trial Examiner that possible impact is a question to be decided , we do not agree with the evidence upon which he based his finding in this respect and do not adopt his conclusions in that regard , as more fully set forth below. The General Counsel and the Union except, inter alia, to the failure of the Trial Examiner to make findings and conclusions on all issues , including those which he viewed as having been determined by the court . We agree that the court 's remand for a "full hearing ... without limiting the evidence..." and the Board' s Order pursuant thereto contem- plated a hearing de novo on the specified objections to the election as if no proceedings had been con- ducted on the unfair labor practice charge. Further- more, the Board's Order is specific in affording the parties an opportunity to litigate all relevant aspects of the conduct relied on by the Respondent. The court found that the objections involved issues which could be determined properly only by a hear- ing, and that the Board erroneously relied on factual findings by the Regional Director . If the court had resolved those same factual issues on the record be- fore it, the court itself would have engaged in the very type of determination for which it criticized the Board . This, together with the breadth of the court 's remand order, persuades us that the Trial Examiner was in error. However , as all matters were fully litigated on the record , and as there is no substantial dispute as to the facts but only as to the conclusions to be drawn therefrom , we find it un- necessary to remand the case to the Trial Examiner for additional findings. 2. As more fully set forth by the Trial Examiner, the objections relate to a statement contained in a handbill circulated by the Union 2 days before the election . This was written in answer to Respond- ent's handbill concerning wages, and reads in per- tinent part as follows: One thing that the Company failed to mention is this; That we [at Pecos ] work six days and the average miles that we drive per day, week or month is only 350 miles. You average over 500 miles . In other words , you are doing six day [sic] work in only five and getting paid only for five. The comparison was between the earnings of the Respondent 's employees and the earnings of a unit of employees represented by the Union at Automo- tive Proving Grounds, Inc., Pecos, Texas, a con- siderable distance from Respondent's Laredo, Tex- as, location. The Trial Examiner concluded, in the following sequence, that the comparison contained untruthful statements concerning (1) the average number of miles per day driven at Laredo, (2) the average number of miles driven per day at Pecos, and (3) the payment of Laredo employees on a 5-day basis for doing 6 days' work in contrast to Pecos drivers receiving 5 days' pay for 5 days' work. As to the Laredo employees, the Trial Examiner found they drove an average of 365 miles per day, rather than the 500 stated in the letter. But, this as- sertion concerns the working conditions of the em- ployees being organized and relates to a fact of which they were or should have been fully aware. In this connection, the record establishes clearly that each of the drivers made daily reports of his mileage for the day, and they all knew how many miles they must complete under each of the tire testings they were conducting. Finally, Mr. Wil- liams, Respondent's proving ground manager, testified clearly that "everybody was talking about ... this one paragraph ... that we all knew was very untrue." [Emphasis supplied.] As to Pecos, the letter asserts that the drivers there average 350 miles a day, whereas Mr. Harper, the owner and manager of the Pecos proving ground, testified that they averaged about 375 miles per vehicle shift.9 However, the miles per vehicle shift cannot be compared with average miles per day driven by employees, without some explana- tion. In contrast, it is undenied that the statement that Pecos drivers averaged 350 miles per day was based on information furnished to the Union by the personnel director at Pecos, and hence this figure would seem to have some appearance of validity and not to be a misrepresentation at all. 10 In any event, the Trial Examiner apparently views the difference between an average of 400 miles per day as substantially and significantly more than the 350 miles stated by Dominguez, in the letter. We are constrained to conclude that even if the 50-mile difference be accepted as fact, such a difference is clearly not such a misstatement as to require a new election in the circumstances of this case. For the Laredo employees were in a position to know (and apparently did know, according to the " In the third paragraph of his Concluding Findings, the Trial Examiner compares the approximate mileages as "per hour" distances , but this is apparently an inadvertent error, because the letter under consideration refers only to miles "per day, week or month" and not per hour as the Trial Examiner says. 10 The Trial Examiner in his Concluding Findings states that because Dominguez admitted that he drove an average of 400 miles per day at Pecos and he was an average good employee, therefore "the other drivers would have driven approximately what Dominguez drove " However, the conclusion does not necessarily flow from the premise. The Trial Ex- aminer gives no weight to the fact that the distances driven admittedly vary depending on the type of car used and the speed of the particular test being conducted , so that wide variations may occur . For example , one test attains a speed of only 3 or 4 miles an hour for an average of 18, or 20 miles a day Furtheremore , it is clear that during the time when Dominguez averaged 400 miles per day, he drove at night , and this was a period when night drivers made more mileage than day drivers. Because the Pecos drivers have a paid lunch period which is part of their 8-hour day while the Laredo drivers eat lunch on their own time, it is apparent from the record that the Laredo drivers actually work for a half hour more per day than do the Pecos drivers. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of Respondent's manager, Mr. Williams) that their own average mileage per day was not sig- nificantly different from that of Pecos employees. The third statement which the Trial Examiner found to be false was Dominguez' comment that Respondent's employees did 6 days' work in 5, as compared with the Pecos drivers. However, since the Respondent's employees had independent knowledge of their own daily mileages and hence could know that their daily average was approxi- mately the same as the asserted Pecos average, they could obviously evaluate this comment as inaccu- rate. As we have found that the representation as to conditions at Pecos was not substantially wrong but in any event was not so different from the condition of Respondent's employees themselves, so that no disparagement of Respondent's conditions could result, and the comparison between the average miles per day and the length of the work at Pecos and Laredo was a fact which the employees could evaluate based on their own information, we con- clude that there is no basis for finding that the misrepresentation might reasonably be expected to have a significant impact on the election. We note, further, that any misstatement by Dominguez, who worked at Pecos, in saying that Respondent's em- ployees at Laredo averaged 500 miles per day, re- lated to a matter about which he cannot be said to have had independent knowledge or to speak with authority. 11 In view of the above, we conclude that the objec- tions to the election were without merit.12 We there- fore reaffirm the validity of the Union's certification and status as the exclusive bargaining representa- tive of the employees in the appropriate unit.13 3. Since we have found that the Union's certifi- cation was proper, the Union has been the exclu- sive representative of the Respondent's employees for purposes of collective bargaining since January 15, 1965. It is not disputed that beginning March 16, 1965, the Union requested the Respondent to bargain with it, and since March 16, 1965, the Respondent has refused to do so. Under these cir- cumstances, the Respondent, by refusing to bargain collectively with the Union, upon request, has vio- lated Section 8(a)(5) and (1) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in part 3, above, occurring in connection with its opera- tions, have a close, intimate, and substantial rela- tion 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. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused and still refuses to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit described herein. We shall order that the Respondent bargain collectively, upon request, with the Union as the exclusive representative of these employees and, if an un- derstanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Uniroyal, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All employees employed by the Respondent at its Uniroyal, Inc., Proving Ground at Laredo, Texas, including test drivers, driver-mechanics, mechanics, tire inspectors, photographers, janitors, maintenance men, and operations clerical em- ployees, but excluding office clerical employees, " In view of the conclusion we reach on the facts, it is not necessary to decide whether any misrepresentation occurred at a time when the Respondent could not have responded . However, we note that Williams testified specifically that "Well, I discussed it with just about everybody. ... Within fifteen or twenty minutes, I discussed [the letter] with probably fifteen different people." It is thus obvious that the Respondent did, in fact , respond to the assertions of the letter. 12 Contrary to the Respondent 's contention , the opinion in N.L.R.B. v. Bata Shoe Company, Inc., 377 F.2d 821 (C.A. 4), cert. denied 389 U.S. 456, does not require a different conclusion . The principle there applied is not that when false statements are made they necessarily constitute an in- terference with employee free choice, but that when such statements do interfere with free choice, whether for or against a bargaining representa- tive, an election should be set aside. '3 The appropriate unit consists of all employees employed by the Respondent at its Uniroyal Proving Ground at Laredo, Texas, including test drivers , mechanics , driver-mechanics , tire inspectors , photographers, janitors, maintenance men, and operations clerical employees , but exclud- ing office clerical employees , confidential employees , guards, watchmen, and supervisors as defined in the Act. UNIROYAL confidential employees , guards, watchmen , and su- pervisors as defined in the Act , constitute a unit ap- propriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. On January 15, 1965 , and at all times thereafter , the Union was and now is the represent- ative of a majority of the Respondent 's employees in the appropriate unit described above for the pur- pose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on and after March 16, 1965, to bargain collectively with the Union as the exclusive representative of all its employees in the above- described appropriate unit , the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Uniroyal, Inc., Laredo, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain col- lectively with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the ex- clusive representative of all its employees in the ap- propriate unit with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) On request, bargain collectively with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive representa- tive of the employees in the appropriate unit, and embody any understanding reached in a signed con- tract. 9 (b) Post at its facility at Laredo, Texas, copies of the attached notice marked "Appendix." 14 -Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by Respondent's authorized representative, shall be posted by it 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 customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 921 14 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below, with respect to rates of pay, wages, hours of employment, and other terms and con- ditions of employment and, if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is: All employees employed by us at our Uniroyal, Inc., Tire Proving Ground at Laredo, Texas, including test drivers, driver-mechanics, mechanics, tire inspec- tors, photographers, janitors, maintenance men, and operations clerical employees, but excluding office clerical employees, confidential employees, guards, watchmen, and supervisors as defined in the Act. UNIROYAL, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611, Extension 4721. TRIAL EXAMINER'S DECISION ON REMAND STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: On October 15, 1964, the Regional Director for Region 23 of the Na- tional Labor Relations Board issued a Decision and Direction of Election in Case 23-RC-2307, pursuant to which a secret ballot election was conducted among the Respondent's employees in an appropriate unit on November 6, 1964, in which 97 ballots were cast, of 922 DECISIONS OF NATIONAL which 55 votes were for the United Rubber, Cork, Linoleum & Plastic Workers of America, the Charging Party herein, and referred to herein as the Union, and 42 were against the Union. Thereafter, on November 13, 1964, Uniroyal, Inc.,' Respondent herein, filed timely "Objections To Election And To Conduct Affecting Result Of Election." After investigation, the aforesaid Regional Director issued his Supplemental Decision, Order and Certification of Representative in which the Regional Director decided that the Respondent's objec- tions were without merit and were overruled. On January 25, 1965, the Respondent petitioned the Board for review of the Regional Director's Supplemental Decision and on March 1, 1965, the Board issued its Order denying request for review. Thereafter, upon a charge filed by the Union on April 5, 1965, the aforesaid Regional Director issued his com- plaint in the instant proceeding dated April 16, 1965, and amendments thereto dated April 28 and May 7, 1965, al- leging that Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. Respond- ent filed a timely answer in which it alleged that the Union had not been legally or properly designated or selected by the Respondent's employees and that the cer- tificate heretofore issued by the Regional Director is in- valid because, in essence, the objection to conduct affect- ing the results of the election filed by the Respondent in the representation case had merit and that, among other things, the Respondent was entitled to a hearing on the objections. On January 29, 1965, counsel for the General Counsel filed a Motion for Judgment on the Pleadings which motion, upon a Notice to Show Cause issued by a Trial Examiner of the Board, was answered by the Respondent which reiterated the allegations of its Answer to the Complaint. On October 14, 1965, the Trial Examiner issued his Decision on Motion for Judgment on the Pleadings in which the Motion was granted and the Respondent was found to have violated Section 8(a)(5) and (1) of the Act. On December 3, 1965, the Board is- sued its Decision and Order,2 affirming, without com- ment, the findings and recommendations of the Trial Ex- aminer and adopting as its order the Recommended Order of the Trial Examiner. Thereafter, the Respondent filed, with the United States Court of Appeals for the Fifth Circuit, a petition for review of the Board's Order, requesting that it be set aside, and the General Counsel filed an answer and cross petition to enforce the said Order. On February 20, 1967, the court handed down its opinion setting aside the Board's Order3 and remanding the case to the Board for further proceeding with the following instructions: To first conduct a full hearing on Objections 8, 9, 10, 11 and 12 to the election, without limiting the evidence by considerations of when discovered or whether previously available, and thereafter to deter- mine under appropriate rules, regulations and procedures the unfair labor practice charge. Pursuant to the aforesaid order of remand, the Board, on April 4, 1967, issued its Order reopening the proceed- ing and remanding it to the Regional Director for a full hearing on Objections 8, 9, 10, 11, and 12 before a Trial Examiner, with instructions that the Trial Examiner shall prepare and serve on the parties a Supplemental Decision LABOR RELATIONS BOARD containing findings of fact and such conclusions of law and recommendations as the Trial Examiner would deem appropriate based upon the evidence received pursuant to the provisions of the said order and the entire record in the proceeding. Pursuant to notice issued by the Regional Director, a hearing was held before me in Laredo, Texas, on May 23 and 24, 1967, in which all parties appeared and were af- forded full opportunity to present evidence on the subject matter of the remand, examine and cross-examine wit- nesses, present oral argument, and file briefs. Briefs were filed by all parties. Upon the entire record in this case, including the court's opinion and decree, the Board's Decision and Order and subsequent Order Reopening the Record, the record in Case 23-RC-2307, the evidence adduced at the hearing before me, and all the briefs submitted by the parties, and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE ISSUE INVOLVED The remand ordered by the court of appeals and the Board involves , as noted above, the merits of Objections 8, 9, 10, 11, and 12 upon which the court has ordered that a full hearing be held . All of these objections relate to a single paragraph in a handbill distributed by the Union to the Respondent's employees within a short time before the election . The handbill , in the form of a letter to the employees is addressed to "My fellow men," and signed by Y. L. Dominguez , as temporary representative of the Union . That handbill, written in answer to a handbill dis- tributed by the Respondent concerning wages, contains a paragraph which reads in pertinent part , as follows: One more thing that the Company failed to mention is this; That we work six days and the average miles that we drive per day, week or month is only 350 miles. You average over 500 miles. In other words, you are doing six day [sic] work in only five and getting paid only for five... . This above quotation makes a comparison with the earnings of employees at the Pecos, Texas, tire testing ground of Automotive Proving Grounds , Inc., located some distance from the Respondent 's premises. Y. L. Dominguez , in addition to his affiliation with and activi- ties on behalf of the Union , was and is an employee of the said Automotive Proving Grounds , Inc. At the time the letter was written Dominguez was on leave of absence from his said employer for the purpose of assisting active- ly in the organization of the Respondent 's employees on behalf of the Union. The Respondent contends that the statement recited above is a material misrepresentation of facts made under circumstances which warrant setting aside the election and vacating the certification . Citing N.L.R.B. v. Bata Shoe Company, Inc., 377 F. 2d 821 (C.A. 4), Respondent contends that the results of representation elections and certifications based upon such results will be set aside in cases where there have been misrepresentations in cam- paign propaganda when: 1. There has been a material misrepresentation of fact. ' The name of the Respondent has been changed from United States 2 155 NLRB 1298. Rubber Company to Uniroyal, Inc. 3 373 F.2d 602. UNIROYAL 2. This misrepresentation comes from a party who had special knowledge of, or was in an authorized position to know, the true facts. 3. No other party had sufficient opportunity to correct the misrepresentation before the election.4 The General Counsel and the Charging Party agree with the Respondent that the three above set forth condi- tions will warrant setting aside an election. However, they each contend that added to this criteria is a fourth condition which must be found before the Board will set an election aside. That condition is that the alleged misrepresentation must have had a significant impact on the election. The Board, has held, after acknowledging that in these cases it must balance the right of employees to an untram- meled choice in an election, and the right of the parties to wage a free and vigorous preelection campaign, the rule with regard to misrepresentation is as follows: We believe that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substan- tial departure from the truth, at a time which prevents the party or parties from making an effec- tive reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. However, the mere fact that a message is inartistically or vague- ly worded and subject to different interpretations will not suffice to establish such misrepresentation as will lead us to set the election aside. Such ambiguity, like extravagant promises, derogatory statement about the other party, and minor distortion of some facts, frequently occur in communication between persons. But even where a misrepresentation is shown to have been substantial, the Board may still refuse to set aside the election if it finds upon consideration of all the circumstances that the statement would not be likely to have had a real impact on the election. For example, the misrepresentation might have occurred in connection with an unimportant matter so that it could only have a de minimis effect. Or, it could have been so extreme as to put the employees on notice of its lack of truth under the particular circumstances so that they could not reasonably have relied on the as- sertion. Or, the Board may find that the employees possess independent knowledge with which to evalu- ate the statements.5 From the foregoing I conclude that a misrepresenta- tion, under the Board's interpretation, may be substantial, i.e., material, without having a significant impact on the employees and thus on the election. Thus, it would seem that even assuming the three conditions, which the Respondent urges as prerequisites to the Board's setting aside an, election, are found to exist in a set of circum- stances, nevertheless, unless there is added to those con- ditions the additional factor that the misrepresentation has a significant impact, the Board will not interfere with the election. Nor' is the Board alone in insisting upon this last condi- tion for setting aside an election. Indeed, the courts have 4 The Respondent also cites in support of its contention the recently de- cided case of N L R B. v. Ortronix , Inc, 380 F 2d 737 (C A. 5), in which the court held that an employer in a somewhat similar situation to the one above was entitled to a hearing on its objections However , in that case the court did not make any reference to the standards as recited by the Respondent in the instant case, confining its discussion to a determination 923 also held that impact must be considered. Thus, the same court of appeals which considered the Bata Shoe Com- pany case, relied on by the Respondent, in a more recent decision6 held: We conclude that the gross misrepresentation as to strike benefits paid to the union's members at another plant in the area and that not one person lost a thing during a recent strike was material and had a significant impact on the election.7 Indeed, even in the Bata Shoe Company case the court spoke in terms of impact and stated: We are inclined to agree with the Company in its view of the impact of this language on the Bata em- ployee, although subsequent language in the leaflet admittedly injects some ambiguity." Accordingly, I conclude that the conditions under which the Board will set aside an election by reason of misrepresentation on the part of one of the parties to the preelection campaign are four in number, the three enun- ciated by the Respondent and the fourth, whether the al- leged misrepresentation had a significant impact on the election. If the instant case were before me without having been reviewed by the court of appeals, which has already set- tled the law and some of the facts of the case, I would be obliged to hold that at the hearing herein the Respondent would have the burden of proving that each of the four foregoing conditions existed. At the hearing, the Respond- ent contended that it had to prove only that there was, in fact, a misrepresentation in the paragraph of the notice or letter with which the Objections 8, 9, 10, 11, and 12 are concerned. The Respondent contended that the court had already settled that the misrepresentation came from a party who had special knowledge and was in an authorita- tive position to know the true facts. The Respondent also contended that the court of appeals had settled and found that the Respondent had had insufficient opportunity to answer and correct the misrepresentation before the elec- tion. In addition, Respondent argued that the court had settled that if the misrepresentation, in fact occurred, that it was a material misrepresentation and that therefore the only matter that was before me for my decision and recommendation was whether or not there was, in fact, a misrepresentation. In other words all that Respondent had to show was the falsity of the statement made by Dominguez and the Charging Union. On the other hand, the General Counsel and the Charg- ing Party contended that the words of the court in its re- mand order were that there be a "full hearing" on the ob- jections and that therefore the entire question as to the existence of all four of the conditions was litigable before me. I temporarily ruled at the hearing that I would take evidence as to the existence or nonexistence of all of the conditions and as to the entire matter since I had not had time to give full consideration to the court's decision. However, I have reconsidered the entire matter and upon further study of the court of appeals' remand deci- sion and of the briefs and arguments of the parties, I con- clude that there is merit in the Respondent's contentions. Thus, I find that in its decision the court of appeals stated that a question of fact requiring a heanng existed. 5 Hollywood Ceramics Company, Inc., 140 NLRB 221, 224. 6 Graphic Arts Finishing Co v. N L R B, 380 F 2d 893 (C A 4). 7 Emphasis supplied. " N L.R.B. v. Bata Shoe Company, Inc, 377 F 2d 821 924 DECISIONS OF NATIONAL that the Regional Director found that the Respondent did not have adequate opportunity to reply to the letter in question. The court did not take exception to that finding. Furthermore, the court found and held that "Dominguez and the union had special knowledge of the facts asserted about Pecos, tending to inspire reliance by U.S. Rubber drivers on what Dominguez said." The foregoing I construe to be the rule of the case and find myself bound in this respect by the court's decision. Accordingly, I find that there are not but two issues be- fore me. The first is whether or not there was in fact a misrepresentation . The court has already decided that if it was a misrepresentation it was material. The second issue is whether the alleged material misrepresentation had sufficient impact upon the employees involved and upon the election to warrant setting aside the election and vacating the certification. II. THE FINDINGS OF FACT With regard to the question of whether there was a misrepresentation and whether the statements made in the Dominguez letter were false, there are really three is- sues when the statement is broken down into its various components. The first issue is whether the Pecos drivers averaged only 350 miles per day as alleged in the handbill in question. The second question is whether the Laredo drivers averaged over 500 miles per day as alleged. The third is whether in comparison with Pecos drivers, were the Laredo drivers, required to perform 6 days' work in only 5 and yet get paid for only 5 days' work while doing a full 6 days of labor for the Respondent? The Respondent's proving ground manager, Maurice G. Williams, testified that at the time of the union cam- paign and the election, in November 1964, the Respond- ent's Laredo proving ground operation had been in operation for only about a year and had not gone into full operation and did not have its official opening until Janua- ry 1964. In fact, at the time of the election, some of the test drivers had only been working for a few months. Wil- liams further testified, without contradiction, that the Respondent had never published any statistics or any in- formation as to the overall average driven per shift by a driver at Laredo. In fact no average figure was kept or ar- rived at until Williams was asked by the Respondent's counsel, just before the present hearing, to prepare statistics showing the actual number of miles averaged by Laredo drivers per day during the year 1964. Williams testified that the average miles driven by Respondent's test drivers at the Laredo proving ground, during 1964, as compiled from the records, was 365 miles per 8-hour driver shift. None of the above testimony of Williams was con- troverted and from this fact and from Williams' ap- pearance and deportment on the witness stand, I con- clude that Williams was a most dependable witness and I credit all of his testimony in this respect. Williams further testified credibly that a shift consisted of an 8-hour workday with certain time off for cof- feebreaks and gasoline pump time. Thus, I find as a fact that, contrary to the letter which alleged that the drivers at Laredo drove over 500 miles N 1 have taken into consideration the other testimony of both Williams and some of the drivers that when they drove at the 90-mile -per-hour test that they actually did drive over 500 miles per 8-hour shift. However, when the other tests were averaged in where the speed of the vehicles was LABOR RELATIONS BOARD per day, that their actual driving per day averaged out to about 365 miles per day during the critical time.9 In connection with this 365-mile average, the General Counsel argues that the men know how far they drive on a shift because Williams testified that the shifts are logged and that each test whether it be a 90-mile-an-hour test, a 60-mile-and-hour test, a 45-mile-and-hour test or a so- called city test are all logged, so that a certain mileage must be reached each shift. The testimony of Williams does show that the men would know what the log for each shift would be. The question of whether or not they could therefore have been deceived by the representations made in the Dominguez letter is discussed hereinafter. With regard to the question of whether the drivers at the Automotive Proving Grounds at Pecos drive only 350 miles per day as alleged in the Dominguez letter, Frank E. Harper, president of Automotive Proving Ground at Pecos, testified that, like the employees at the Respond- ent's proving grounds in Laredo, the Pecos drivers work 8-hour-per-day shifts. They also drive at various speeds depending upon what test is being run. However, their records are not kept by driver shift but by vehicle shift. Otherwise put, the drivers at Pecos may drive several vehicles in one 8-hour period. This is so because each vehicle that runs at least 100 miles is considered to have covered a shift. Therefore, it is almost an impossibility to compare the figures kept by the Automotive Proving Grounds and by the Respondent's proving grounds. It is like the comparison of the proverbial apples and oranges. However, Harper stated that he had placed a notice on his bulletin board that in a test run at 50 miles per hour the drivers were expected to cover between 325 and 350 miles per shift; at 60 miles per hour they were expected to drive 380 to 400 miles per vehicle shift; at 70 miles per hour they were expected to drive 450 to 465 miles; and at 85 miles per hour 550 to 565 miles. These mileages would all be for an 8-hour period, the same as the 8-hour period which the drivers at Laredo must put in.10 With regard to a concrete example of how far cars are driven in an 8-hour period at the Automotive Proving Grounds at Pecos, Dominguez himself testified upon being called as an adverse witness and admitted that he drove on an average of 400 miles a day which was 50 miles a day more than he stated in his letter that the Pecos drivers drove. Additionally, Harper estimated, in addition to the foregoing requirements as set forth above, that the average mileage per day for Pecos drivers was 375 miles per day. In addition to the foregoing, it was shown clearly in the record that at the Pecos track the cars used auxiliary gas tanks whereas at the Respondent's proving grounds no auxiliary gas tanks were used. Thus, at the Pecos proving grounds the drivers were not required to make gasoline stops as often as they were at the Respondent's proving grounds which would indicate that in any given period, because of a lack of necessity to stop for gasoline, the drivers at Pecos would have driven a greater distance than the drivers at the Respondent's Laredo proving grounds. Additionally, Harper testified that if Dominguez averaged 400 miles per 8-hour shift then all of the em- ployees at Pecos would have driven approximately that far by reason of the fact that Dominguez was a good much lower than that of the 90-mile test, the average mileage for each driver is only 365 miles per driver. 11 From the uncontroverted testimony of Frank Harper who is a disin- terested witness and whom I credit. UNIROYAL average employee and would represent, to Harper's knowledge, what other employees would have done. Thus, I find and conclude that the average of miles driven at Pecos was above and in excess of the average stated by Dominguez in his letter to the Respondent's employees. As noted above, the last segment of the representations made in the Dominguez letter was that the Respondent's test drivers do 6 days' work in only 5 and get paid for only 5 days while doing 6 days' work. The record shows, as developed in the testimony of both Williams and Harper, that the employees at both the Pecos proving ground and the employees at the Respondent's Laredo proving grounds work for 8-hour periods each day. It is true that the Pecos drivers get paid for 6 days' work but, as testified by Harper, the men work 6 days, 8-hour shift per day. At Laredo, on the other hand, as testified by Wil- liams, the Respondent's drivers work 5 days a week for 8 hours a day. Since the employees at both installations do approximately the same kind of work and since it has already been demonstrated in this report that the Pecos' drivers drive, if anything, more miles in the 8 hours a day on the average than do the drivers at the Respondent's proving grounds, it is quite apparent that the Respond- ent's employees do only 5 days' work and get paid for 5 days' work. On the other hand the employees at Pecos at Automotive Proving Grounds do 6 days' work and get paid for 6 days' work. Accordingly, I find that there is no difference in the work for which the employees at each of the proving grounds are paid, but that they are each paid for the amount of work they do - no more, and no less. The remaining testimony to be considered is that relat- ing to the impact of the representations upon the Respond- ent's employees and, therefore, upon the outcome of the election. Three employees testified as to this particular aspect of the problem presented by this proceeding Tony Escovedo, a Respondent test driver, testified that he first saw a copy of the Dominguez letter on Thursday, November 5, the day before the election. He knew Dominguez and was aware that the latter was an official of the Union. After reading the paragraph which is the subject of this inquiry, Escovedo felt that the employees were "getting beat out of pay wages compared to their dif- ference in mileage that we were running and they were running there." He felt that the Respondent was getting more work out of its employees than were the people who were running the proving track at Pecos. He discussed this with employee John Moreno and another employee whose name was Garza. Each of these men thought they were being, as testified by Escovedo in the vernacular, "screwed."" Leo Garza testified that at the time of the election he was doing work as an office technician for the Respond- ent but before that he had been a test driver and had been in the office only a short time and was not certain that he would not be a driver again. Accordingly, when he received a copy of the Dominguez letter his reaction was that he felt sorry for the drivers. He figured they were getting "screwed." This made him very angry. Garza heard another employee, Gonzalo Molina, talk about the letter. Molina said that the letter helped the men a lot because they received it just in time. Molina was a strong union adherent. Garza further stated that he knew that Dominguez was a representative of the Union and that he 1 From the uncontroverted testimony of Escovedo, which I credit. z From the uncontroverted testimony of Garza, which I credit. 925 had worked at Pecos and therefore assumed that what the letter said was true. 12 J. D. Carmichael testified that he has been a test driver at the Respondent's Laredo proving grounds since Oc- tober 1963. About the time of the election, however, he was temporarily working in the office. He had a conversa- tion with employee Guillermo Ponce, who was a cochair- man of the union committee and has since become the president of the Union's local. Ponce told Carmichael that with the letter the Union had put out (the Dominguez letter), the Company did not have a chance to win the election. 13 Shortly after the election, Carmichael rode in an au- tomobile with three other employees, Don Garza, Adan Garza, and Bonito Villareal, all drivers. They told Car- michael that each had been undecided about the election until he received the letter and, thereafter, each voted for the Union strictly on the basis of that letter. Carmichael admitted on cross-examination that the letter had had no effect on his own vote. In connection with the foregoing testimony, Respond- ent's counsel stated at the hearing that there were present a number of other witnesses, who, if he called them, would testify to the same effect. However, these witnesses were not called because their testimony would have been accumulative. III. CONCLUDING FINDINGS The court of appeals in its decision remanding this case for hearing decided that the representations made in the letter signed by Dominguez and approved by the Union were made by a party who had special knowledge of and was in an authoritative position to know the true facts. Moreover, the court has also decided that the Respond- ent did not have sufficient opportunity to correct the misrepresentation if there was one, in fact. Thus, I come now to the issue of whether there was a misrepresenta- tion. I find and conclude that the paragraph which is the basis for the Respondent's claim of misrepresentation did contain several untruthful statements. In the first place, I note from the testimony of Respond- ent's proving ground manager, Maurice G. Williams, which I credit, that the average miles driven by the test drivers at the Respondent's Laredo proving ground was 365 miles per day. The statement in the letter alleged that the drivers at Laredo drove over 500 miles per day on the average. It does not require lengthy analysis to conclude that, accordingly, the allegation of 500 miles per day was an untruth and a misrepresentation. Secondly, although not perhaps as apparent, is the statement in the complained of paragraph that at Pecos the drivers average only 350 miles per day. This, of course, as noted above, does not conform to the testimony of Harper, the owner and manager of the Pecos proving ground, who testified that his best estimate was that per vehicle shift the drivers at Pecos drove approxi- mately 375 miles per day and not 350 miles per day as al- leged by Dominguez in his letter. Moreover, Dominguez himself admitted that he drove an average of 400 miles per day and Harper testified that Dominguez was an average, good employee and that the other drivers would have driven approximately what Dominguez drove. Ac- cordingly, I find and conclude that on this second count 13 1 credit Carmichael's testimony over Ponce's denial that he had ever had any conversation of any kind with Carmichael 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the statement issued by Dominguez just prior to the elec- tion was untrue and a misrepresentation. Perhaps the most important statement of all, however, was the statement to the drivers to the effect that they worked 6 days in 5 and were paid for only 5 days whereas the employees at Pecos enjoyed a 6-day workweek and were paid for 6 days. I find that the facts adequately dis- close that the amount of work done in any particular 8- hour shift whether at Pecos or at Laredo is approximately the same . Each employee is paid so much per hour for his 8-hour shift regardless of how much work is done during that 8 -hour period . While the employees do get paid for 6 days ' work it is because they work six 8 -hour shifts. The employees at Laredo who get paid for only 5 days' work do so because they only work five 8-hour shifts. In- asmuch as the representations as to mileage have already been shown to be false , it is apparent that the employees at Laredo do not work any harder in any 8-hour shift than do the employees at Pecos. Accordingly , I find , from all of these facts , that the representation that the employees at Laredo work 6 days ' work but only are paid for 5 was a complete and, in fact , extremely harmful misrepresenta- tion . Such a misrepresentation when combined with the misrepresentation heretofore found , could not but have had a very great impact upon the employees. Furthermore , with regard to impact, I note the uncon- troverted testimony of the three employees which demon- strates that the votes of the employees were greatly af- fected by the statement in question . This, it seems to me, belies any contention on the part of the General Counsel and the Union that the statement had no impact upon the employees or too little impact to warrant setting aside the election . This is so because even if it can be argued that the employees at the Respondent 's proving ground did know to a certain extent how far they drove in any par- ticular day , nevertheless they were affected by the letter sufficiently to make some of them change their votes. From this it must be concluded , a fortiori, that the letter had a significant impact on the outcome of the election. The Union and the General Counsel contend that, in any event , the statement was ambiguous and had no real meaning and that , therefore, it cannot be found , under the Board's case law , to have been such a misrepresentation as would warrant setting aside the election . But this issue has already been answered by the court in its decision remanding this proceeding for hearing . Thus the court stated: The Regional Director ' s report characterized the above quoted statement in the letter as ambiguous, subject to different interpretations and highly im- probable to mislead the voters. To us it is neither minor nor meaningless but means exactly what it says - that as compared with the Pecos competitor, the employer requires its employees to do 6 days work but pays them for 5... . Thus, it is apparent , that the court has already decided that the paragraph in question is not ambiguous and does in fact state untruthfully that Respondent underpays its employees in comparison to the Pecos proving grounds, by paying one day's less wages than the employees earn. Inasmuch as this proceeding came before me in the context of a refusal to bargain proceeding within the pur- view of Section 8(a)(5) of the Act, I find and conclude that because of the preelection conduct of the Union as set forth herein , the Respondent properly refused to bar- gain with the Union inasmuch as the certification was im- proper in the light of the merits of the objections to the election which were filed by the Respondent . I do not say this lightly. But neither the Regional Director nor the Board had the benefit , as have I, of having had the hear- ing testimony before them which , in my opinion, establishes facts of which neither the Board nor the Re- gional Director could have been aware. Accordingly, I find and conclude that the Respondent did not violate Section 8 (a)(5) of the Act when it refused to bargain with the Union. IV. RECOMMENDATIONS It having been found that the Respondent did not vio- late Section 8(a)(1) and (5) of the Act when it refused to bargain with the Union , I will issue a Recommended Order dismissing the complaint in this proceeding. In order to put the parties in status quo and to give the employees involved an opportunity to vote in an election held under ideal conditions as required by the Board, I recommend that the election heretofore held be set aside and that the certification heretofore issued in Case 23-RC-2307 be vacated. CONCLUSIONS OF LAW 1. The Respondent is an employer as defined in Sec- tion 2(2) and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is ordered that the complaint in this proceeding be, and the same hereby is, dismissed.