Bridgeport Castings Co.

BRIDGEPORT CASTINGS COMPANY 749 neers, university and high school co-op students, professional employ- ees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the -leaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBERS PETERSON and BEESON took no part in the consideration of the above Decision and Direction of Election. BRIDGEPORT CASTINGS COMPANY and UNITED STEELWORKERS OF AMER- ICA, CIO, PETITIONER . Case No. 2-RC-5954. August 9, 1954 Supplemental Decision and Certification of Representatives Pursuant to a Decision and Direction of Election issued by the Board herein on August 3, 1953,1 an election by secret ballot was con- ducted on August 31, 1953, under the direction and supervision of the Regional Director for the Second Region, among the employees in the unit found appropriate by the Board in its decision. Following the election, a tally of ballots was furnished the parties, which shows that, of approximately 116 eligible voters, 85 cast ballots of which 47 were for the Petitioner, 36 were against the Petitioner, and 2 were challenged. On September 8, 1953, the Employer filed timely objections to con- duct affecting the results of the election in which it alleged (1) that on the day of the election the Petitioner distributed to the employees form ballots such as would confuse the employees and cause them to believe that the Board endorsed the claims of the Petitioner, and (2) that the Petitioner through its representatives and agents engaged in other acts of restraint, coercion, and interference which prevented a free election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation of these objections and on October 15, 1953, issued his report on objections in which he found that the objections raised no substantial issues af- fecting the results of the election and recommended that they be over- ruled. On October 26, 1953, the Employer filed exceptions to the report on objections and requested that either the election be set aside or .a hearing be held to resolve issues of credibility raised by the re- port and exceptions. On November 16, 1953, the Board ordered a hearing to determine whether physical and economic threats were made by 2 employees as alleged by the Employer, and whether those 2 employees were agents 1 Not reported in printed volumes of Board Decisions and Orders 109 NLRB No 110 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Petitioner. A hearing was held on January 8 , 1954, before I. L. Broadwin , hearing officer. On February 15, 1954, the hearing officer issued his report on objections finding that the employees who allegedly made the threats were not agents of the Petitioner and that no physical and economic threats were made. He recommended that the Employer's objections be overruled . The Employer filed timely exceptions to the hearing officer 's report and a supporting brief. The Board has reviewed the rulings of the hearing officer and finds that no prejudicial error was committed .2 The rulings are hereby affirmed. Upon the entire record in the case, the Board finds : 1. The Regional Director found that on the day of the election the Petitioner distributed sample ballots containing an "X" in the "yes" box with a word "vote" printed beside the ballot and an arrow point- ing to the "yes" box. Above the ballot there appeared the date, time, and place of the election and the language : "Don't Fail To Vote. Be Right, Vote Yes. Sample Ballot." The ballot did not contain the signature of the Regional Director or any representative of the Board. The Regional Director concluded that inasmuch as the ballot did not contain the name of the Board 's official representa- tive and was clearly marked "Sample" it was not likely to mislead employees and constituted permissible campaign propaganda. He recommended that this objection be overruled . The Employer does, not dispute these findings but contends that the ballot confused, in- timidated, and misled the employees so that it was impossible to deter- mine their true wishes. As we ,agree with the Regional Director that the sample ballot dis- tributed by the Petitioner was permissible campaign propaganda, which the Board leaves to the good sense of the voters to evaluate,3 we find, as did the Regional Director , that the Employer's first objection is lacking in merit. The first objection is, therefore, overruled. 2. Like the Regional Director and in agreement with the conclu- sions of the hearing officer, we find that the second objection is also lacking in merit. As already noted, the issues are whether physical and economic threats had been made to other employees by employees Robinson and Johnson before the election and whether these two em- ployees were agents or representatives of the Petitioner . We shall first dispose of the latter issue. 2 Contrary to the contentions of the Employer , we find that the hearing officer was not biased or prejudiced . Square D Company, 105 NLRB 253 , Olin Industries , Inc, 86 NLRB 1525 3 L Gordon & Son, Inc , 100 NLRB 438 ; Gi ay Di ug Stores, Inc , 95 NLRB 171. Cf Anderson Air Activities, 106 NLRB 543, on which the Employer relies. In that case a handbill was distributed by the union which purported to be a sample copy of the Board's official ballot, but substituted prounion language for the Board 's language in the ballot That case is clearly distinguishable from the instant case. BRIDGEPORT CASTINGS COMPANY 751 A. Authority of Robinson and Johnson as agents of the Petitioner Robinson testified at the hearing as follows : About 2 months before the election, Daniels, an international representative of the Petitioner, visited him at his home, gave him an authorization card to sign, and requested him to sign up other employees in the plant. Shortly there- after Johnson and Demko, an employee, spoke to him in the shop and told him that they were trying to organize the plant for the Petitioner. They asked him to organize the members of the cupola gang, while they were to take the other employees in the plant. Thereafter, until the election, these three employees constituted an organizing committee and met informally in the shop several times a week to dis- cuss the organization drive.4 Each of them solicited signatures from the employees in the areas for which they had assumed responsibility. Daniels denied that he had ever visited Robinson at his home or that he had authorized hire to act as an agent or representative of the Peti- tioner. He also denied requesting Robinson or Johnson to solicit cards from the other members of the cupola gang. Johnson testified that he had never approached Robinson to ask him to act as a mem- ber of an organizing committee composed of Demko and himself. He denied that such a committee existed or that he had met with Demko and Robinson in the shop to discuss the organizational cam- paign as testified by Robinson. An affidavit given by Robinson to a Board agent after the election was introduced in evidence. In the affidavit Robinson stated that his only contact with the Petitioner occurred when he was approached by an organizer of the Petitioner and asked to pass out six cards for other employees to sign. There is no mention in the affidavit of the activities described by Robinson at the hearing. On the record before us we find that the alleged organizing com- mittee did not exist. We rely in this connection on the specific denial by Johnson, Robinson's failure to mention such activities in his affi- davit, and his failure to give a convincing description of the function- ing of this committee under questioning at the hearing.5 We find fur- ther that the record shows at best that Robinson and Johnson solicited authorization cards for the Petitioner and that Johnson acted as an observer at the election. The evidence does not controvert Daniels' * Robinson was questioned about the discussions at these meetings but could only give a vague description of their content. 6 One undated pamphlet was also introduced in evidence , bearing the signature "Bridge- port Casting Company UAW-CIO Organizing Committee " UAW-CIO had engaged in an organization campaign at the Employer's plant during March and April 1953 , but withdrew thereafter because the plant came within the Petitioner 's jurisdiction There was no other evidence pertaining to the UAW Committee and no connection was established between it and the informal committee about which Robinson testified We find that the pamphlet signed by the UAW-CIO Committee has no probative force on the issue of whether an organizing committee existed on behalf of the Petitioner, composed of Johnson , Demko, and Robinson. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony that neither Robinson nor Johnson was authorized to act, as an agent or representative of the Petitioner.b B. The nature and timing of Robinson's threats Robinson testified at the hearing that on the last working day before the election he threatened 1 employee on the cupola gang with physi- cal violence if he failed to vote for the Petitioner, and threatened all 9 members of the cupola gang that he would see to it that they lost their jobs if they did not vote for the Petitioner. In his affidavit Robinson described similar threats, but stated that the threat of physical violence was made 3 weeks before the election and before any- one knew there would be an election. He also stated that this threat was made in reference to the signing of a union card rather than to voting for the Union. In the affidavit he described the economic threats as being made about 2 weeks before the election to a group of 7 employees. No other threats are mentioned in the affidavit. The only other reference to Robinson's threats appears in Daniels' description of events occurring at a union meeting after the election. Daniels testified that at that meeting he questioned Robinson about the affidavit which he gave to the Board's field examiner and Robinson re- plied that he had told the field examiner he was kidding when the threats described in the affidavit occurred. At the hearing Robinson denied that he had made such a statement or that he had been kidding when the threats were made. His affidavit fails so to characterize them. We find that Robinson did threaten 1 employee on the cupola gang with physical violence and that he threatened 7 to 9 other employees with economic reprisal. We find also that Robinson's threats were intended as threats and not as banter.? However, on the record before us we make no finding as to other circumstances of these threats, par- ticularly as to timing, in view of the discrepancies between Robin- son's testimony and his affidavit and the lack of any other evidence in the record to corroborate either version.8 s These findings are substantially in agreement with those of the hearing officer in his report 7The hearing officer found that Robinson 's threats were loose talk The Board will reverse a hearing officer's credibility findings only when convinced that clear preponderance of the evidence compels a contrary result Kent Plastics Corporation, 107 NLRB 157. The only evidence besides Daniels' testimony with respect to kidding by Robinson was to the effect that lie sometimes drank and kidded with other employees on paydays after work we believe this evidence and Daniels' testimony are insufficient to warrant a conclusion that Robinson did not intend the obvious import of his language 8 The hearing officer credited Robinson's affidavit as direct evidence and found that the threats occurred 2 or 3 weeks before the election We view Robinson's affidavits as avail- able only for the limited purpose of impeachment , as we have done under similar circum- stances in unfair labor practice cases D Gottlieb if Co , 102 NLRB 1708 , American Thread Company, 101 NLRB 1306. Moreover , in rejecting Robinson's testimony at the hearing on this issue , we have also considered the conflicts between Robinson's testimony and that of Daniels and Johnson BRIDGEPORT CASTINGS COMPANY 753 C. Threats by Johnson Three employees, Hall, Owens, and Beal, testified that they heard Johnson make economic threats during the week before the election. Each testified as to a separate occasion at which other employees, who were not called as witnesses by either side, were present. Each of the three witnesses had difficulty in describing the exact content of Johnson's threats but all agreed that they were to the effect that, if the Petitioner won the election and if they failed to join the Peti- tioner, they would either lose their jobs or be forced to take less desir- able jobs in the plant. During the direct examination of each of the three witnesses, the Employer's counsel reminded them of interviews with him on the previous day and attempted to refresh their recollec- tions by reference to the interviews. It was apparent from these incidents involving each of the three witnesses, that their testimony deviated from what they had told the Employer's counsel before the hearing. Robinson also testified that he once overheard Johnson threaten several employees, including Hall, with loss of their jobs if they failed to vote for the Union and the Union won the election. Hall did not testify about this incident. Johnson denied making threats to any employees. Upon the basis of the evidence before us, we discredit as did the hearing officer the testimony of Hall, Owens,° Beal, and Robinson with respect to Johnson's threats,10 and credit that of Johnson. We find that no threats were made by Johnson. D. Conclusions On the present record, it appears that threats were made by Robin- son, who was not an agent or representative of the Petitioner, at some with respect to the organizing committee, which we resolved against Robinson and the discrepancy between testimony by Robinson and that of Beal, an employee also called by the Employer. In the latter connection Robinson testified that Leal had told him of over- hearing Johnson make threats to another employee, Richard Dennis However, Beal stated on cross-examination that he could not remember telling this to Robinson In discussing the discrepancies betRemu Robinson's testimony and his affidavit, the hearing officer in this report infers that the Employer caused Robinson to alter his testi- mony at the heaimng We find that the record does not warrant such an inference. There is no evidence that the Employer was responsible for such discrepancy u Hall and Owens testified that Daniels had visited their homes to solicit authorization cards for the Petitioner at a time when UAW-CIO, and not the Petitioner, was organizing the plant Daniels testified without contradiction that he had never worked as an organ- izer for UAW-CIO 1o We agree with the hearing officer's findings in this respect However, to the extent that his discussion of the testimony of Hall, Owens, and Beal on his report seems to infer that the Employer unduly influenced the testimony of the witnesses it called, we find no warrant for such an inference. The iecord is completely lacking in any evidence to the effect that the Employer attempted to alter the testimony of any of the witnesses called by it As indicated above, the uncertainty of the three employees as to the content of John- son's threats, the lack of corroboration of their testimony, their apparent failure to testify as expected by Employer's counsel, and the improbability that Daniels visited the homes of Hall and Owens as they testified, supply ample reason for discrediting the testimony of these three employees, although the hearing officer's report fails to detail these reasons '754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undetermined time during the period before the election. While it is true that in some cases the Board has set aside elections regardless of the fact that conduct found to have interfered with the elections could not be attributed to any of the parties involved, in such cases the char- acter of the conduct involved was more serious than that complained of in this case and was affirmatively shown to have occurred in close proximity to or during the election." Accordingly, under all the circumstances, including the fact that Robinson's conduct in this case cannot be attributed to the Petitioner, we find that his conduct did not interfere with the exercise of free choice by the employees in the election. As there was no other evidence presented which in our opinion supports the Employer's second broad objection, we will over- rule the second objection.12 Accordingly, as no evidence has been presented which persuades us that conduct occurred which prevented the employees from exer- cising a free and untrammeled choice of representatives, we hereby overrule the objections. As the tally of ballots shows that the Peti- tioner was selected by a majority of employees voting, we shall certify the Petitioner as the collective-bargaining representative of the em- ployees in the appropriate unit. [The Board certified the United Steelworkers of America, CIO, as the designated collective-bargaining representative of the employees of Bridgeport Castings Company at its Bridgeport, Connecticut, plant, in the unit found appropriate in the Decision and Direction of Election herein.] CHAIRMAN FARMER took no part in the consideration of the above Supplemental Decision and Certification of Representatives. 11 E. g., Diamond State Poultry Company, 107 NLRB 3 ; P. D. Gwaltney, Jr., and Com- pany, Inc., 74 NLRB 371. However, in numerous other cases the Board has declined to set aside elections because of conduct which could not be attributed to any of the parties. The Gruen Watch Company, 108 NLRB 610; Poinsett Lumber Company, 107 NLRB 234; E. 1. DuPont Sc Nemours and Co., Inc ., 105 NLRB 710 ; Marmon Bag Company, Inc., 103 NLRB 456 ; J. J. Newberry Co., 100 NLRB 84. 12 In its exceptions and brief, the Employer took exception to a number of findings of the hearing officer to which we do not refer in this Decision . As in our view of this case these findings of fact are unnecessary to our decision , we neither adopt nor reject them. RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL No. 1179, AFL, AND ESTHER LUTHER, AGENT and CALIFORNIA ASSOCIATION OF EM- PLOYERS FOR AND IN BEHALF OF J. C. PENNEY CODIPANY. Case No. O-CB-265. August 9,1954 Decision and Order On August 13, 1953, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 109 NLRB No. 111.