G. W. Murphy Industries

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reed Seismic Company , A Subsidiary of G. W. Murphy Industries and Local 826 , International Union Of Oper- ating Engineers , AFL-CIO. Cases 16-CA-3534 and 16-RM-385 April 27, 1970 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE By MEMBERS FANNING, BROWN, AND JENKINS On September 2, 1969, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. In addi- tion, the Trial Examiner found no merit in the objections to the election filed in Case 16-RM-385 and recommend- ed that the objections be overruled and that the Union be certified. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner, except as modified herein. We shall overrule Respondent's objections to the election and certify, the Union as recommended by the Trial Examiner. We do so only, however, on the basis that the credited evidence fails to establish either that the Union was responsible for the conduct alleged in the objections, or that the conduct was of such nature as to preclude the exercise by the unit employees of a free choice in the election. More specifically, we reject the Trial Examiner's finding that employee Barham acted as Respondent's agent in keeping union activities under surveillance and circulating rumors of union vio- lence. It is apparent from the Trial Examiner's Decision that his finding in this regard is based on two grounds, viz., (1) an affidavit given by Barham, more than 18 ' The Trial Examiner erred in excluding letters presented by the Respondent to demonstrate the wage policy of the Respondent as applied in other plants The admission of this evidence , however, would not change our Decision herein 2 Respondent 's exceptions are in large part directed to the Trial Examiner's credibility resolutions We will not , however, overturn a Trial Examiner 's resolutions credibility unless the party excepting thereto demonstrates by a clear preponderance of the relevant evidence that they are incorrect Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 363 (C A 3) In our opinion Respondent has not sustained that burden here months prior to the instant hearing, in an unconnected proceeding involving different parties and issues, and (2) the circumstances attendant to Barham's reporting union activities to Respondent. We find that although the affidavit may have been properly admitted to show inconsistencies with Barham's present testimony as to the contents thereof, it was not entitled to any substan- tive or affirmative weight in determining whether he was acting as Respondent's agent in the conduct here involved. Moreover, we are of the opinion that the attendant circumstances relied upon by the Trial Examin- er in the instant case do not provide an adequate basis for finding that Respondent was responsible for Barham's conduct. It follows, therefore, that we also reject the Trial Examiner's further finding that by virtue of Bar- ham's conduct Respondent engaged in massive unfair labor practices warranting the issuance of a general bargaining order.3 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 826, International Union of Operating Engi- neers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at Respondent ' s plant in San Angelo, Texas, excluding office clericals, salesmen, guards, watchmen, and supervisors as defined by the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 4. By granting wage increases to 25 employees on December 6, 1968 , in the appropriate unit found above without first bargaining with the aforementioned Union as the exclusive bargaining representative of the employ- ees in that said appropriate unit, Respondent has refused to bargain with said Union in violation of Section 8(a)(5) and (1) of the Act. 5. The unfair labor practices engaged in by the Respondent affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Reed Seismic Company, a subsidiary of G. W. Murphy Industries, San Angelo , Texas, its officers, agents , successors, and assigns, shall: 1. Cease and desist from: 3 We note in this connection that the only refusal to bargain alleged in the complaint pertained to the unilateral wage increase, which we find, in agreement with the Trial Examiner, constituted a violation of Section 8(a)(5) under the circumstances Zelnch Company, 144 NLRB 1381, 1392, enfd 344 F 2d 1011 (C A 5) Barham's conduct was not alleged or litigated as independently violative of Section 8(a)(1) 182 NLRB No. 21 REED SEISMIC COMPANY (a) Granting unilateral wage increases to employees in the appropriate unit found above without first bargain- ing collectively with Local 826, International Union of Operating Engineers , AFL-CIO. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the National Labor Relations Act: (a) Post at its place of business in San Angelo , Texas, copies of the attached notice marked "Appendix. 114 Copies of said notice , on forms provided by the Regional Director for Region 16, after being duly signed by Respondent 's authorized representative , shall be posted by Respondent 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 Respondent to insure that said notices are not altered , defaced, or covered by any other mate- rial. (b) Notify said Regional Director , in writing , within 10 days from receipt of this Decision , what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Respondent ' s objections to conduct affecting the results of the election conducted on December 6, 1968 , in Case 16-RM-385 , as summa- rized in the report .on objections and notice of hearing issued on March 28 , 1969, by, the Regional Director for Region 16 of the National Labor Relations Board, be, and they hereby are , overruled CERTIFICATION OF REPRESENTATIVE It is hereby certified that Local 826, International Union of Operating Engineers , AFL-CIO , has been designated and selected by a majority of the employees in the unit found appropriate as their representative in Case 16-RM-385, for the purposes of collective bar- gaining , and that , pursuant to Section 9(a) of the Act, the said labor organization is the exclusive representative of all employees in such unit for the purposes of collec- tive bargaining with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment. In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words "a Judgment of the United States Court of Appeals enforcing an Order" shall be substituted for the words "a Decision and Order " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT make unilateral changes in wage rates, without first bargaining with Local 826, Inter- 159 national Union of Operating Engineers , AFL-CIO, as the exclusive representative of all our employees in the appropriate unit described below. The bar- gaining unit is: All production and maintenance employees employed at our plant in San Angelo , Texas, excluding office clericals, salesmen , guards, watchmen , and supervisors as defined by the Act. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. REED SEISMIC COMPANY; A SUBSIDIARY OF G. W. MURPHY INDUSTRIES (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-374-5181. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon a charge duly filed on February 6, 1969 , and thereafter amended on February 10, March 14 , and April 7, 1969, by Local 826, International Union of Operating Engineers, AFL-CIO, hereinafter referred to as the Union or the Charging Party, the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel ' and the Board , respectively, by the Regional Director for Region 16, Fort Worth, Texas, issued its complaint dated April 7, 1969 , against Reed Seismic Company, a subsidiary of G. W. Murphy Indus- tries, hereinafter referred to as the Respondent or the Company. The,complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Labor Management Relations Act, 1947, as' amended , herein referred to as the Act. ' This term specifically includes the attorney appearing for the General Counsel at the hearing 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent duly filed an answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. The parties agreed to a Stipulation for Certification Upon Consent Election, approved by the Regional Director for Region 16 on November 25, 1968, in an agreed-upon appropriate unit . In this election held on December 6, 1968, 26 employees in the appropriate unit voted in favor or representation by the Union against 23 employees who voted against such representa- tion. The Employer filed timely objections to said elec- tion on December 12, 1968. Prior to or at the time of the Regional Director's preliminary investigation of these objections the Company withdrew Objections V, VII, VIII, IX, X, XI, and XIII with the approval of the said Regional Director on March 26, 1969. On March 28, 1969, said Regional Director issued his report on objections and notice of hearing in which he found that the Company had presented "timely and substantial evidence" in support of Objections I, II, III, IV, VI, XII, and XIV which might, if credited, warrant setting the election aside He thereupon ordered that a hearing be conducted on such objections. On April 7, 1969, the said Regional Director ordered that the aforemen- tioned complaint and objections to election be consolidat- ed and heard before a Trial Examiner. Pursuant to notice a hearing thereon was held before me in San Angelo, Texas, on April 29 and 30, and May 1, 1969. All parties appeared at the hearing, were represented by counsel or by union officials, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing, oral argument was waived. Briefs were received from General Counsel and Respondent on June 9, 1969. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I therefore find: Reed Seismic Company, a subsidiary of G. W. Murphy Industries, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Texas, maintaining its principal office and place of business in San Angelo, Texas, where it is engaged in the manufacture of geophy- sical drilling bits. Respondent, during the past year in the course and conduct of its business operation, sold and distributed products the gross value of which exceeds $500,000. During the same period of time, Respondent shipped and transported products valued in excess of $50,000 from its place of business in San Angelo, Texas, directly to States of the United States other than the State of Texas. Accordingly, I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION INVOLVED Local 826, International Union of Operating Engi- neers, AFL-CIO, is a labor organization admitting to membership employees of Respondent. III THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION A. The Basic Facts Prior to July 1, 1968, Economy Bit and Supply Co., Inc., existed in San Angelo manufacturing rotary drill bits for the seismograph industry in the exploration for oil and in the construction and mining industries. On July 1 Economy Bit was acquired by Murphy Industries and renamed Reed Seismic Company, a sub- sidiary of G. W. Murphy Industries.2 Kenneth Epley, former joint owner of Economy, remained as plant manager for Respondent. In conferences about that date Industrial Manager James Wynne, informed Plant Man- ager Epley that Respondent desired to add approximately $50,000 in improvement to plant and to institute improved wages and shorter hours as well as other employee benefits in accord with Respondent's general practice after such acquisitions. Thereafter during further consultations the employees were placed in various job classifications and wage rates for such classifications were set by Epley and Wynne. On or about October 25, 1968, Respondent ordered Epley, somewhat over his objections, to put the new job classifications and wage rates into effect. On October 25, Epley called each employee into his office individually and notified the employee of his new job classification and wage rate and, in addition, assured each employee that thereafter his wage rate would be reviewed approximately every 60 days. Thus on October 25, 43 employees, practically the entire employee roster, received individual wage increases varying from 20 cents to 90 cents per hour with the average increase being somewhere around 60 cents per hour. Thereafter almost weekly I to 4 employees would receive wage increases, generally amounting to 10 cents per hour, until the week of December 13 when Respond- ent increased the wages of 25 employees, all but 2 of which were 10 cents per hour and the others 5 cents per hour.3 On August 16, 1968, Respondent employed Arnold Filburn as a machinist at $2.75 per hour which was raised to $3 per hour by September 6. With one exception Filburn's rate of pay was the highest nonsupervisory rate in the plant. He received no increases thereafter either on October 25 or December 13 purportedly because Y G W Murphy Industries is another conglomerate headquartered in Houston, Texas a It is this unilateral wage increase which is the basis for the refusal- to-bargain complaint REED SEISMIC COMPANY he was at the top of his job classification wage rate although Respondent's job classification shows the top rate in his classification to be $3.15 per hour. On September 2 Respondent hired Rayford (Ray) Barham at $1.75 per hour. Being dissatisfied with this wage Barham promptly set out to form a union with $100 initiation fee, per member, throw a beer "blast," and go union. After listening to Barham a couple of days about this venture, Filburn told him that he, Bar- ham, did not want a union, he just wanted a beer party, and to leave him, Filburn, alone. By December 13, Barham was earning $2.65 per hour. By October at least the employees in the plant were talking about the possibilities of joining a union. One such employee asked Foreman Carl Groat if he had heard anything about a union. Although the employees were talking unionization, it was Filburn, previously from the Detroit area, who got in touch with the president of the local telephone union who explained to Filburn and a group of some seven employees how unionization could be accom- plished. So on November 11, at the request of Filburn, the then business manager of the Union, Frank Parker 4 came from Big Spring, Texas, and met with approximate- ly 17 of Respondent's employees. After explaining union- ization, Parker left the room and the men present voted unanimously to-join the Union. Thereafter the employees selected Filburn as the shop steward to handle the organizational campaign and to collect the initiation fees. All the men present signed authorization cards for the Union. On November 13 Barham signed a union authorization card and "ultimately" paid his $10 initiation fees There- after Barham appeared to become active in the organiza- tional work.' Respondent officials admit knowing of the union organ- izational effort on or before November 19. On November 20 Filburn, a day-shift employee having learned that Barham had telephoned the Board's Fort Worth office about the rumored filing of a company petition for an election, came into the plant during the night shift, walked over to Barham and, according to Barham's testimony, told Barham, "You keep your God damn ass out of this business, this union.business. I'm the one with the ball and I'm the one that's gonna run with it, and don't you ever 'stick your nose into it again." Filburn was both angry and emphatic. After making this statement, he 'walked out of the plant. A number of the shift employees testified that they noted the confrontation. During the breaks that evening Barham told the employees of the threat allegedly made by Filburn during Parker resigned this position on December 4 In his original direct testimony Barham denied doing either, but, to use his word, "ultimately" he had to admit doing both H Barham explained that his purpose in joining the Union was so he could get hold of all the Union's "propaganda" and thereby "expose" the Union to "everybody that would listen " He candidly acknowledged, "Anyway I could discredit the Union, I was going to do that" and "I dislike unions, if you want to know the truth " 161 the confrontation and convinced them that he, Barham, had been "shaken" by the episode. In fact Barham appeared to be so afraid of the possibilities of violence from Filburn that he requested employee Pat Dula to follow him "halfway" home in order to 'protect him from anticipated violence from Filburn. During these, same break periods the night-shift "leadman" Edward Michael Wright told the employees that Filburn had violated a company rule in returning to the plant during a shift other than his own. This was a new rule so far as Dula knew. On November 21 the Respondent over the signature of Foreman Carl Groat reprimanded Filburn in writing for having returned to the plant the previous evening. Apparently angered by this written reprimand Filburn saw Barham that day at some unspecified time and told Barham, according to Barham, "I thought • I 'told you to keep your nose out of this business and -I'm gonna whip your ass." Barham's answer on this occasion was, "if [Filburn] felt lucky to go ahead." - About 2 days later there were two telephone calls between Filburn and Barham. The versions of Barham and Filburn as to the contents of these telephone calls were fundamentally opposed, a conflict which will be resolved hereinafter. According to Barham's version of these calls, Filburn made almost innumerable threats of possible dire consequences to those employees who did not support the Union in the event, the Union did not win recognition or if the Union had to go out on strike. , I Admittedly Barham recounted these alleged threats of violence by Filburn to "everybody who would listen.'.'. Rumors of union violence were soon throughout the plant. ' A day or so thereafter Plant Manager Epley made a speech to the assembled employees. In this speech Epley called attention to these "rumors" of violence and assured the employees that the Company had made. arrangements with the police to provide protection and to enforce the laws of the State of Texas. A consent-election agreement was reached by and between the Respondent and the Union and approved by the Regional Director on November 25, 1968, which provided for the holding of an election on the representa- tion question on December 6. After holding a second meeting at the Ramada Inn after November 11, the Union on the evening of Decem, - ber 5 and the morning of December. 6 prior to the , election held meetings in an auditorium in the Central National Bank at, San Angelo. The use of this room- was rent free on. condition that the Union clean, up the place after the meetings. At the election of December 6, 26 ballots were cast in favor of representation by the. Union and 23 ballots - against such representation. , At some undisclosed time Frank Parker for the 'Union' and Filburn took some 37 signed union authorization cards into the office of Epley, placed. the signed cards on Epley's desk, and asked for recognition and bargain-' ing. Epley shied away from the cards with the remark, "I have a good faith doubt." As thereafter Epley would, 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only reiterate the above remark, Parker and Filburn picked up the cards and departed the office. On December 12 Respondent filed 14 objections to the conduct of the election. On that same day Respondent granted wage increases to 25 of its employees, admittedly without notification to or bargaining with the Union. On February 6, 1969, the Union filed its first charge in this matter which was thereafter amended. On or before March 26 the Company withdrew 7 of its 14 objections to the election. After investigation and on March 28, 1969, the Regional Director found that the evidence presented by the parties on the objec- tions raised substantial factual issues as to the agency status of Arnold Filburn , an issue as to whether the conduct alleged rendered the free expression of choice impossible as well as serious issues of credibility. He determined that a hearing on the objections should be conducted before a Trial Examiner. On April 7 the said Regional Director filed the instant complaint charging Respondent with violations of Section 8(a)(1) and (5) of the Act and consolidated the hearing on that complaint with the Respondent's objections to the election. At the hearing herein evidence as to the unfair labor practice was heard first and, after that was completed, the evidence on the objections was presented. It seems more logical for purposes of this Trial Examiner's Deci- sion to consider those matters in inverse order because, if the objections should be sustained, then there would be no possibility of a refusal-to-bargain finding because there would be no bargaining representative. employees so they could not arrive at a free expres- sion of their choice. These various incidents were clearly corrosive of the atmosphere of free choice. This points up the fact that the election was held in an atmosphere of fear of reprisals which was not conducive to the sort of free and untrammeled choice of representatives which the National Labor Relations Act contemplates. The prejudicial conditions that existed at the time of the elections are evidenced by the fact that these various incidents were not isolated occur- rences. The threats and misstatements spread throughout the plant and every employee had knowl- edge of them. The threats and misstatements, more- over, were made either by actual spokesmen for the Union or employees who obviously had authority to speak for the Union. Under these conditions, and in view of the fact that the election was extreme- ly close-a change of two votes would have been decisive-it cannot be doubted that the threats and misstatements affected the outcome of the election. [Emphasis supplied.] In his March 28 report on objections the Regional Director found that said objections had raised substan- tial, although disputed, questions which could best be determined by record testimony. This Trial Examiner agrees that, if the conditions described in the objections existed due to union efforts, then the election would not have been held under the "laboratory conditions" which the Board requires and the election, therefore, should be set aside as requested. 2. Smear campaign B. Objections to the Election 1. Company contentions On December 12, 1968, the Company (Respondent) filed its 14 objections to the election held on December 6, 1968. Three of these referred to rumors then current throughout the plant: (1) rumors of possible union vio- lence allegedly circulated by Arnold Filburn and "by certain [unnamed] union adherents"; (2) a rumor that the local newspaper, the San Angelo Standard Times, and the Union had conspired together "to start a `smear campaign' against Ken Epley and the Company in order to get Epley fired and to force the Company out of business in San Angelo"; and (3) a rumor that the president of Central National Bank in San Angelo had said that he allowed the Union to use a bank meeting room for its last meetings because the bank wanted more unions in San Angelo. The remaining objections concerned certain threatening statements made allegedly by Filburn or "known union adherents" to named employees or which had been "overheard" by one Edward Michael Wright. These last objections in general merely reiterated or corroborated the rumors of possible union violence. The Company summed up its objections as follows: The above misstatements and threats had the natural and foreseeable effect of coercing the As noted in the Regional Director's report, at or prior to his investigation of the objections Respondent withdrew Objections V, VII, VIII, IX, XI, and XIII. However at the hearing Respondent requested, and was permitted, to reinstate Objection X dealing with a threat allegedly made by Filburn to 73-year-old employee Pied- fort.7 Also, while giving an unresponsive answer on direct examination, "leadman" Edward Michael Wright opened up the rumor concerning the Central National Bank, which Respondent had previously withdrawn. I thereupon ruled that Objection VIII had likewise been reinstated. Hence Objection VIII was back in the case. This Objection VIII regarding the alleged "smear campaign" can be disposed of relatively quickly. In one of his several speeches to assembled employees Plant Manager Epley referred to a rumor of a "smear campaign conspiracy" between the Standard Times and the Union to get Epley discharged and Respondent run out of San Angelo and quoted the newspaper as denying the same. There is no evidence in this record as to the source of this rumor although Epley's speech contributed to its circulation and credence. Industrial ' Filburn denied making this threat of physical violence to the 73- year-old Piedfort It is undemed that on one occasion Piedfort himself denied that the threat was made As Filburn pointed out it would not have assisted the union cause for Filburn to have physically threat- ened a man 40 years his senior I credit Filburn's denial REED SEISMIC COMPANY 163 Relations Manager Wynne testified that the rumor was reported to Respondent's management by Foreman Groat. But although a witness for Respondent, Groat was not asked a single question regarding the rumor or its source. "Leadman" Edward Michael Wright," who brought Objection VIII back into the case, was admittedly unable to identify any source for the rumor. When asked about this alleged conspiracy by Epley and Wynne, the incredulous editor of the newspaper asked, according to Wynne, "Well, my gosh, you don't believe something like that, do you?" Epley and Wynne admitted that "personally" they did not but thought that the "young and impressionable" employees might. Hence Epley denied the truth of the rumor in one of his several speeches to the employees. Even young and impressionable employees must be credited with average intelligence and common sense. Consequently this conspiracy rumor of a smear campaign must have been just as incredible to them as to the Standard Times' editor and to Respondent's officials. It hardly merited a public denial. This is particularly so because it stands to reason that the Union would hardly seek to make friends and influence voters to vote for it with a rumor that it was attempting to eliminate the jobs of those very same voters. If believed at all, this rumor was calculated to redound to Respondent's-not the Union's-benefit by forcing the employees to vote against union represen- tation for fear the Union would eliminate their employ- ment. One can hardly believe that the Union would have been responsible for such a rumor. Obviously Respondent's original decision to withdraw Objection VIII was correct. Consequently I will dismiss Objection VIII for all the reasons stated heretofore. 3. The bank rumor On the evening of December 5 and again on the morning of the election, December 6, the Union held two meetings in a conference room at the Central Nation- al Bank in San Angelo. The bank had allowed the Union the use of this room rent free on condition that the Union clean up the room and the ashtrays after the meetings. This was the bank's customary prac- tice for such meetings. Admittedly the fact that the " Edward Michael Wright described himself at the hearing as "night leadman" with the sole duty "to instruct trainees in the operations of the machines" but, in his words, "not a supervisor" and "not in a supervisor capacity " He had voted in the election of December 6 without objection However it developed during his testimony that he had fired one employee in "an emergency case There was no one [else] there to do it," that he is in charge of the plant at night "when nobody else [superior] is there" and nobody superior "usually" is present at night, that he gives orders to the employees under him, that he is required to report periodically on the employees under him to Epley, and it was undenied that employees have been told by Epley and Foreman Groat that Edward Michael Wright has the authority to discharge In addition the Union refused him membership, obviously on the theory that he was a supervisor Under all these facts, if important, I would without hesitation find Edward Michael Wright to be a supervisor In addition his original testimony as to his "nonsuper- visory" capacity impaired the credibility of Edward Michael Wright Union had gotten the room rent free was mentioned during the union meetings. Ray Barham, as usual, attended the meeting on the morning of December 6, as best one can tell from the transcript. Following this meeting Barham reported back to Plant Manager Epley that the union officials had stated during these meetings that the bank president had informed the union officials that he was glad to permit the Union to use the room because San Angelo needed more unions as they would be good for the city economically. Barham also testified that he made his report to Epley "too late" for the Respondent to be able to make a public answer to these alleged state- ments prior to the election. Several other of Respond- ent's witnesses also testified that they had heard some such comment about the room being given the Union rent free. This was natural chitchat. Even if true, this rumor is of such little significance to the election as to merit dismissal here. I so find. In addition as the testimony as to the bank president's alleged statement rests largely on Barham's testimony, it is subject to the same infirmities noted hereafter. Accordingly I will dismiss Objection XII. 4. Rumors of union violence It is acknowledged on all sides that for some time prior to and at the date of the election there were throughout the plant numerous rumors of possible union violence if the vote on December 6 went against the Union or if the Union were forced to call a strike after certification. It is these rumors of union violence on which Respondent relies when it claims that the atmosphere created thereby destroyed the "laboratory conditions" the Board seeks at an election and prevented the employees from expressing their free and untram- meled choice in the election booth." In the recent case of Home Town Foods, Inc., d/b/a Foremost Dairies of the South v. N.L.R.B., 416 F.2d 392 (C.A. 5), the court said: The "laboratory conditions" test represents an ideal atmosphere in which a free choice may be made by employees, protected from interference by employer,5 union," Board agent [Footnote omit- ted.] or other parties." As to any conduct objected to as interference, the critical Board determination is whether the employees were permitted to register a free choice. Cf. N.L.R.B. v. Southland Paint Co., 5 Cir 1968, 394 F.2d 717, 727 . . and the case from which it quotes, N.L.R.B. v. Lake Butler Apparel Co., 5 Cir 1968, 392 F.2d 76, 82 . ("The struggle is between the employer and the union, but the right to select is the employees.") [Footnote omitted.] 'See, e g , Raytheon Co. 173 NLRB No 10 1968-2 CCH NLRB paragraph 20, 216 (employer solicited employee grievances and offered "vote no" buttons). " General Shoe Corp , 77 NLRB 124 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4nchot Coopltnt Co Inc 168 NLRB 218 1968-1 CCH NLRB p it igr iph 21 908 (supervisor contact with only 3 of 120 employees) intctcontntcntal Mfj, Co Inc 167 NI RB 769 1968-1 CCH NLRB paragraph 21 814 (supervisor st itements to 6 of 730 employees) Nation n,dc Papers 1nc 147 NLRB 1030 1964 CCH NLRB p it agr iph 13 226 (w irning of dr istic economic detriment) Gtcat A & P Tca Co Inc 140 NLRB 133 1962 CCH Ni RB p ar agr aph 11 839 (employer interview of employees sway from work station) Plochntan R Hannon Chtiis Lanc Foods Inc 140 NLRB 130 1962 CCH NI RB p ar agr aph 11 832 (showing of movie And Women Must Weep ) 7tane Co 137 NLRB 1506 1962 CCH NLRB p'lragr aph I 1 450 (withheld 15 from iegul it p tycheck and immedi itely there after returned s ime to show effect of union dues) 'See e g Dolco Pkg Coil) 1969 174 NLRB No 16 1968-2 CCH NI RB p tr igraph 20 470 (union misrepresent anon of contr act terms with unionized area employers) Rchmai Inc 1968 173 NLRB No 215 1968-2 CCH NLRB paragraph 20 441 (union misuse of office it election notices) Cianhat Coil) 1968 173 NLRB No 200 1968-2 CCH NLRB paragraph 20 416 (union inference of in in-igement preference for union too I ate for rebutt il) K Matt 1968 173 NLRB No 84 1968-2 CCH NLRB p iragnph 20 290 (substantial w age d it i misrepresent ition by union) Knapp Sherrill Co 1968 171 NLRB No 171 1968-2 CCH NLRB p it agr mph 22 597 (union threats of job loss to non supporters) Stat Expansion Industries Coip 1968 170 NLRB No 47 1968-1 CCH NLRB paragraph 22 243 (union electioneering) Milchon Inc 170 NLRB No 46 1968 -1 CCH NLRB p iragraph 22 245 (list minute convers ition with voters by union agent ) [footnote 7 omitted] "Sec e g Hents I Stcgel Inc 165 NLRB 493 1967 CCH NI RB par mgr mph 21 483 (interference by, anti union townspeople) Diamond Statc Poulhs 1953 107 NI RB 3 (conduct outside polls on election day by woi kern from neighboring pl ant) If the loss of laboratory conditions here was due to union efforts as Respondent 's objections claim through authorized union officials , including Filburn, or "union adherents" possibly then the election of December 6 should be set aside With the existence of the rumors acknowledged causing a possible loss of the `laboratory conditions," it now becomes neces nary to locate the source of these rumors and the party t esponsible for the circul ition of said rumors The o i c and chit f c it culator of these rumors of v ^,1, e in the pl ant tnd among the employees admittedly ,is Ie ty B it ham i ho testified that he told "everybody that would listen about the threats Filburn allegedly m ule to hint thei by starting the rumors Barham maintained that all he was doing was repeating threats which had bcen made to him over the telephone by the Union ' s in-plant organizer Filburn As a witness for Respondent Ray Barham testified that on or about November 23 he had two telephone conversations in one evening with Filburn According to Barham ' s testimony , Filburn telephoned Barham and solicited Barham ' s cooperation and influence with his fellow employees on behalf of the union organizational drive during which Filburn pointed out that he had some $5-6,000 worth of paintings hanging in his living room and a $6 000 automobile , all contributed to him for his organizational services by the Union 10 However, according to Barham , when Barham reso- lutely refused his cooperation despite these blandish ments , Filburn threatened as follows And he said-about that time there was a steel strike also going on where a policeman got shot up and this and that and he said, "This particular union might have to teach these people around here a lesson ," that they had been kicked out of San Angelo on numerous occasions and, he said "For instance filling stations have been shot up," and he said "For instance, somebody might poke a hole in your gas tank with an icepick and then lead a wire from there to a brake line and if you stepped on your brakes your whole car would blow up," and so along with this he kinda hinted that he thought that I would be healthier if I kinda went along with this TRIAL EXAMINER Just tell us what he said , not what he indicated THE WITNESS Well, that is what he said I'd be healthier if I'd go along with it TRIAL EXAMINER Okay THE WITNESS I told him it didn 't make any difference to me, that I wasn't going along with it, and that was the extent of the `phone call Q (By Mr Berry) Did you relate this occurrence to anyone else" A Yes sir, I'm quite sure I told numerous people about it Q Did this statement become known in the plant" A I'm quite sure it did Barham himself appraised the effects of his efforts along this line as follows A It definitely frightened the employees to hear of the things that were stated to me Things that could happen to me, because they knew it could happen to them also I mean all you have got to do is just stand up against some of these unions and you are liable to get your head blown off It's well known throughout the country 12 1" In his affidavit however Barham had estimated the value of these paintings at $8-10 000 and the automobile at $8 000 The facts disclose that the paintings referred to in Filburn s home had been painted by Filburn s brother who was a professional artist in San Angelo or by Filburn himself who was a weekend would be professional artist and that the automobile mentioned was a 1966 Ford Mercury 11 Subsequently referring to this same telephone conversation Bar ham testified I told just about everybody in the plant 11 Practically every time that Barham s attention was called back to these telephone conversations throughout 'i long examination Barham REED SEISMIC COMPANY 165 On the other hand Filburn's testimony was in accord as to the fact that he and Barham did converse by phone twice during the course of one evening but other- wise was in diametric opposition to the testimony of Barham. According to Filburn, who admitted his distrust of Barham, Barham telephoned him to request a position of importance in the organizational drive, mentioning Filburn's paintings and automobile as emoluments which would be possible, if not probable, from such efforts on his part. Later that evening, according to Filburn's testimony, acting upon orders from the Big Spring union officials and over his own objection, Filburn called Bar- ham back and informed him that Barham had been appointed shop steward for the night shift. In addition to the above Filburn denied that he had made any threats of any nature during these telephone conversa- tions. On the credibility issue thus raised between the testi- mony of the two individuals, upon which this case actually rests as it is Barham's testimony upon which Respondent's objections either stand or fall because Respondent's other witnesses testified in general only to isolated comments allegedly made by either Filburn or some other alleged "union advocate" or corroborated Barham as to the existence of these rumors in the plant, it is to be recalled that, prior to the telephone calls in question, Barham had already on November 13 signed a union authorization card and "ultimately," Barham's word, paid his initiation fee to the Union, facts which Barham originally denied but ultimately was forced to admit when faced with documentary proof thereof. Barham's testimony further shows that "I dislike unions, if you want to know the truth," that "if there was a [union] meeting that I was aware of, I attended it . . . for the explicit purpose of finding out the- everything I could about this particular union" in order to reveal it to "everybody that would listen" so as "to discredit the union in any way I could." If then, as was the fact, Barham was already known from having executed an authorization card to be a prounion employee, it is hard to believe that Filburn would telephone him in order to importune Barham to exert his influence on other employees to sign authori- zation cards. That was to be assumed. It is even harder to believe that Barham, with his ulterior motive in joining the Union to discredit it "in any way I could" still undisclosed, would reject Filburn's entreaty and resolutely refuse to assist by joining the Union's effort where he would have had an opportunity to acquire all the "propaganda" so as to "expose" the Union even better and to be able to subvert the Union from volunteered additional threats unmentioned in his original testimony An example of these subsequent amplifications is the following: A And I'll tell you why Arnold Filburn told me people would come down from Chicago that were a member of this same National Operating Union-Operating Engineer's Union and you'd never know who they were and they would hit you and they 'd be gone and you're liable to be dead laying in the street or the gutter somewhere Now, that story' s been going all over that plant ever since the beginning of time within. If Barham is to be believed as to these telephone calls, Filburn's alleged phone call was the golden oppor- tunity for which Barham was covertly playing. Yet Barham would have us believe that he adamantly refused Filburn's offer. Mr. Barham proves himself inconsistent to say the very least . One can believe one or the other of Mr. Barham's tales-but not both simultaneous- ly. Consistency obviously was not Barham's forte. It was at this point I began to lose faith in Mr. Barham. Barham's honesty as a witness is further exemplified by the following excerpts from his testimony taken within 23 pages of the transcript: Q. [By General Counsel] Did you report to any- body in the company that you had attended this [union] meeting? I mean management. A. I did not report. Q. [Mr. Snow] Did you at any time make any statement to any supervisory people about the union? TRIAL EXAMINER: Which case are we talking about? MR. SNOW: In this case here. TRIAL EXAMINER: All right. Q. (By Mr. Snow) In the one that we are here involved in now? A. I don't remember. Q. (By Trial Examiner) Did you furnish informa- tion to this company here about the union campaign? A. I have not passed out-no, sir I'll answer that no, sir. Q. Orally or in writing? A. Orally, yes, sir. I have passed on to this company things that were brought up at the meet- ings, at the union meetings. Q. Was that one of the reasons that you attended the union meetings? A. That was one of the reasons. Q. (By Trial Examiner) About how often, Mr. Witness, did you report these matters about the union and the union campaign to Mr. Epley? A. Just about any time that I felt that there was slander involved or any time that I felt that there was actions going on that he [Epley] should know about. [Emphasis supplied.] Perhaps the most revealing testimony by Barham in this regard occurred some 16 pages of transcript previous to those cited above where Barham testified as follows: THE WITNESS: . . . If there was a [union] meeting that I was aware of, I attended it. Q (By Mr. Benson) Why did you attend them? 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A For the explicit purpose of finding out the- everything I could about this particular union Q What was that for" A For my own benefit Q Did you reveal it to anyone" A I certainly have Q Who" A Everybody that would listen Q Everybody that would listen to you" A That's right Q Management too9 A I didn't say management Everybody that would listen- Q They listen , don't they" A Everybody that I worked with [Emphasis supplied ] With specific reference to the telephone calls contain ing the alleged threats of violence by Filburn , Barham testified on direct examination as follows Q (By Mr Berry ) Did you relate this occurrence [the alleged telephone call threats] to anyone else9 A Yes, sir, I'm quite sure I told numerous people about it Q Did this statement become known in the plant" A I'm quite sure it did Q (By Mr Berry) After the conversation with Mr Filburn on the telephone did you call any company people" A I don't recall calling anybody Q Did you ask to discuss this with any company people" A Did I ask who" Did I ask Arnold [Filburn]" Q Did you ask any company people if you could discuss this with them" A I don't remember asking I probably did dis- cuss it, but- Q Then why did you discuss 0 A Well, because it was detrimental to the point that I was trying to-this union is more of a chaos type organization THE WITNESS I felt that this organization was more like the Maffia [sic] than anything I guess you would object to that, too, but I talked to everybody that I knew about this Any time an organization will come in and make threats if you don't want to go along with them that's not the organization that- MR BERRY I have no further questions Q (By Mr Benson) Maffia What is the Maffia" Q [The Trial Examinee] Now, what did you do about the `phone conversations with Filburn" Did you report those to Mr Epley" A Only the one where Mr Filburn indicated that people would be down here to make an example of this town and of this company 13 Q Did you-was that-did that become well known in the plant" A Yes it did Q How did it become well known? A I told just about everyone in the plant It is to be recalled that after receiving Barhams' report of his alleged telephone conversations with Fil- burn, Epley allowed 2 or 3 days to elapse while Barham admittedly related the alleged threats to "everybody that would listen," thereby starting the rumors, before Epley assembled the employees for his first speech during which he made pointed reference to the rumors so created and assured the employees that Respondent had already provided for police protection for them The timing of these events hardly seems coincidental There is another quirk in Barham's mentality or char- acter which requires exposure here It is exemplified by the following testimony of his " It must he rec died that there were only two conversations and both occurred the s ime evening B irh-im could not distinguish between the two * THE WITNESS All right' A Maffia comes in, tells you what you can and can't do, if you don't do it look out Q (By Mr Benson) Look out what" A You are liable to get mowed down with a machine gun Out of his own mouth (as examples, see his testimony quoted above) Barham proved himself to be unworthy of credence as a witness Barham was neither frank, candid, nor honest in his testimony His original testimo- ny was in large measure ultimately proved to be untruth- ful by the process of long, slow, and painful cross- examination caused by his extreme reluctance to acknowledge previous untruths Ultimately his reluctant admissions approached the truth His demeanor through- out corroborated the results of the cross examination Accordingly I am able to credit little, if any, of Barham's testimony except his ultimate admissions On the other hand Respondent's brief attempts to discredit Filburn because of certain inconsistencies in his testimony Perhaps Filburn was not the most persua- sive witness But this avails Respondent here nothing because the burden of proof rested on Respondent in these objections to the election to prove its case with credible testimony " Because ultimately Respondent's 11 Southwestern Portland Cement Co v N I R B 407 F 2d 131 REED SEISMIC COMPANY case on these objections rested almost exclusively on the testimony of Barham, a completely discredited wit- ness, Respondent has failed in its burden of proof, regardless of Filburn's credibility. Accordingly I must, and hereby do, discredit the testimony of Barham in regard to the two crucial tele- phone conversations with Filburn and credit the testimo- ny and denials of Filburn in regard to these same conver- sations. I found Filburn to be essentially an honest witness. Specifically I find that Filburn made no threats of violence to Barham or others over the telephone or any other way which would in any manner justify the alleged "rumors of violence" which Barham informed "everyone that would listen" Filburn had made. This finding, of course, excludes the threat made by Filburn on the evening of November 20, acknowl- edged candidly by Filburn, "to kick his ass" if Barham did not get out of his union business. This comment is a common expression among men of all walks of life during personal disagreements and is, of course, not the type of statement which would, to the ordinary mind, become the basis upon which to found a "rumor" of generalized union violence. As noted heretofore from his own testimony, Barham's mind was not that "ordi- nary mind" when it came to unions or violence. Accordingly I find the "threats" disclosed by Barham to have been false. Also from Barham's own reluctant admissions it becomes clear that Barham was the source, the creator, and the chief purveyor of the false rumors circulating throughout the plant. Barham was obviously adept at this art. On November 20 following his 2-minute confron- tation on the night shift with Filburn, Barham was able to convince a number of the workers on that shift that he, Barham, had been "visibily shaken" by the threat Filburn made that evening to kick Barham in the ass. In fact Barham was so adept at the art that he persuaded employee Pat Dula to follow him "halfway" home supposedly in order to protect him from Filburn. Neither Dula nor Barham, unfortunately, explained how Barham knew that he would be safe from Filburn on the last half of his journey home. Admittedly Barham made the entire trip without trouble from Filburn and also admittedly there has been no violence at all to the date of the instant hearing. The above findings effectively relieve the Union or Filburn from any responsibility for the rumors of vio- lence circulating in the plant. But they do raise the question as to whether Barham was acting solely on his own or whether, perchance, he was acting for and on behalf of an undisclosed principle. So far as this record discloses, Barham was acting on his own during the evening confrontation with Filburn on November 20. Due to his consummate acting that evening, the confrontation was promptly reported to management so that the very next day Respondent gave 134 (C A 5) Also Polymers, Inc v N L R B , 414 F 2d 999 (C A 2) 167 Filburn a written reprimand for appearing at the plant on a shift other than his own, an alleged rule about which Pat Dula first learned during that evening from Supervisor Edward Michael Wright. However promptly after the two telephone calls dis- cussed above on or about November 23, Barham "ulti- mately" admitted that he reported his already discredited version of those conversations orally to Plant Manager Epley and then began spreading the alleged threats to all employees "that would listen" with the result, as already noted, that in Barham's opinion, at least, all the plant employees were definitely frightened because "what might happen to me, they knew might happen to them." Then, after giving Barham 2 days in which to get these rumors of union violence to practically every employee, Epley chose to assemble the employees for his first of a series of speeches against the Union. In this first speech Epley chose to take cognizance of, and aid in the circulation of, Barham's rumors as well as to assure the employees that Respondent had already provided them with police protection against the Union and that the laws of the State of Texas would be enforced. The timing of Epley's message hardly seems coincidental when it is recalled that throughout this whole period from November 23, at least, until the morning of December 6, election day, Barham contin- ued to report "orally" to Epley on anything and every- thing Barham thought might be of interest to Respondent, including the names of those employees who had signed union authorization cards. This same surveillance and reporting continued to the very morning of the election when Barham reported to Epley the alleged favorable opinion of the president of Central National Bank in regard to the presence of unions in San Angelo, a report Barham testified regretfully was made "too late" for Respondent to make public reply. Therefore it is all too clear that the Respondent knew of Barham's antiunion activities at all times material here, consented thereto and indeed coordinated its own antiunion activities with those of Barham and thus obvi- ously acquiesced therein. These efforts of Barham and Respondent were too well coordinated for it to have been accidental. The facts as thus disclosed by Barham spell out at least a prima facie case of agency between himself and Respondent with Barham acting as Respondent's undercover agent, labor spy in keeping union activities under surveillance for Respondent, and agent provocat- eur in starting and circulating rumors throughout this whole period. In the event that this prima facie case so made were untrue, it became incumbent upon Respondent to set that matter straight. The record shows that Respondent's counsel saw the problem and request- ed the right to recall Barham to the stand after further consultation with Epley. The request was granted. But Respondent chose, after consultation, neither to recall Barham nor to call Epley with the result that Barham's admissions stand uncontradicted on this record by Respondent and the prima facie case of agency remained undenied. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent chose instead to rely as a defense on Barham's answer to a leading question that his surveil- lance of union activities, his starting and circulating false rumors, and his reporting constantly to Respondent was all done "voluntarily." Even assuming that Barham did act "voluntarily," this would not relieve Respondent of responsibility for Barham's actions on its behalf because the principle is well settled that an employer can be held responsible for the activities of others when they are carried on with its knowledge, acquies- cence, and approval, all of which are clearly present in the instant case. Further Respondent never disavowed or "rejected" Barham's activities on its behalf.15 I asked Barham the "next logical question," to wit, whether Respondent paid Barham for his activities on its, behalf. I received a negative answer. Although there is no direct evidence to the contrary, Barham's testimony concerning his activities from December 1968 to March 27, 1969, when he returned to Respondent's employ leaves much unanswered about Barham's finances during that period. According to Barham, he bought a 1965 Chevrolet out of his savings apparently sometime in December. This naturally depleted those savings made at $2.60 per hour in Respondent's employ. He then borrowed $450 from "GFC" and on January 9, 1969, left Respondent's employ for Reno, Nevada, to enroll in aviation school for a "crop duster, applicator's license." On this trip Barham was accompanied by his wife and one of two children. Due to the fact it snowed "all the time," he left the aviation academy at some undisclosed date"' and he and the family departed from Reno. While in Reno he made approximately $50 per week working in a gas station and his wife contributed her earnings (amount unspecified). According to Barham, on leaving Reno he found all roads leading east "washed out" and thus "had" to leave via California so that the three of them toured to Los Angeles to see friends and from Los Angeles they came "straight" back to San Angelo" where he returned to Respondent's employ at an increase of 10 cents per hour on March 27. Frankly having had some experience in traveling myself, I must confess to being highly skeptical that Barham accompanied by wife and child could have made this trip on the amount of money he would have us believe he did. But, as I say, there is no direct evidence contra- dictory to his testimony. Even in the absence of proof of remuneration for services rendered on Respondent's behalf, I have no hesitation in finding that throughout this material period Barham was at all times acting for and on behalf of Respondent with its knowledge, consent, acquiescence, and cooperation as Respondent's undercover agent, labor spy in keeping union activities under constant surveil- lance and reporting same to Respondent, and agent provocateur in creating, starting, and circulating antiun- ion rumors throughout the plant. Hence I find that " Compare Talladega Cotton Factory, Inc , 91 NLRB 470, and Hadley Mfg Corp . 106 NLRB 620 '^ "Time is of no conception to me," Barham testified r, Barham's original testimony was that they returned "straight" to San Angelo from Reno' all times material, Barham was and is the agent of Respondent within the meaning of Section 2(13) of the Act. "I Consequently I must, and hereby do, find that Respondent is itself responsible, through its use of Bar- ham as such agent, for starting and circulating false rumors which might. have destroyed the "laboratory conditions" and made the expression of the employees' free and untrammeled choice impossible at the election booth Surveillance, covert as well as overt, is a well-recog- nized violation of Section 8(a) (1) of the Act. Among numerous cases this was recognized in N.L R.B. v Atkins Saw Division of Nicholson File Co., 399 F.2d 907, 910 (C A. 5), where the court said: . . . As this Court stated earlier, surveillance is a violation of the Act Because it indicates an employer's opposi- tion to unionization, and the furtive nature of the snooping tends to demonstrate spectacu- larly the state of the employer's anxiety From this the law reasons that when the employer either engages in surveillance or takes steps i" At the instant hearing General Counsel offered into evidence an affidavit signed by Ray Barham dated October 10, 1967 Officials of Texstar Plastics Division of Texstar Corporation, Barham's then employ- er, took this affidavit from Barham in connection with a union organiza- tional drive then being conducted at its plant by a union other than the Operating Engineers and then used that affidavit as justification for the discharge of the leading employee organizer of that organizational effort See Texstar Plastics Division of Texstar Corporation, 171 NLRB No 72, of which judicial notice was taken at the instant hearing Mistakenly believing that General Counsel was offering this 1967 affidavit for the limited purpose of proving certain inconsistent statements made therein, I admitted said affidavit for that limited purpose only Although, in making the above findings in the instant case, I have' limited the use of this affidavit as so restricted in its admission, my,ruling restricting its admission was in error After reading the affidavit, I am convinced that the affidavit should have been admitted for all purposes A reading of this affidavit proves beyond peradventure of a doubt that Rayford (Ray) Barham commenced his vocation, or avocation, as a labor spy and agent provocateur for employers whose plants were at the time subject to union organizational activities as early as October 1967 This affidavit proves that Barham's activities for and on behalf of Texstar were identical. for all intents and purposes to those he performed for Despondent in the instant matter I must congratulate the Texstar official who took the 1967 affidavit from Barham on the care and accuracy of that document because the phraseology appearing in the affidavit was almost verbatim with that used by Barham on the witness stand before me The document was obviously Barham - Without even having the opportunity of seeing Barham on the witness stand or having Barham's oral testimony including cross-examinations before them, as Texstar did not' choose to call him as a witness in that case, neither the Trial Examiner nor the Board in that case accepted the contents of Barham's affidavit as being true but instead found that Texstar had discriminatorily discharged the employee there involved using Barham's affidavit as a mere pretext for its claim of having discharged the individual because of the violence Barham attributed to him in his affidavit Barham's demeanor on the stand would not have enhanced his credibility as a witness On the financial aspects of Barham's vocation or avocation one paragraph in the said Texstar affidavit is of interest here "In the conversation last night Dewitt said-stick with this type of movement and there's' `boo-coo money ' Just do a favor now And then for the right person, and the company will take care of you financially " Although in the affidavit Barham attributes this statement to another, the sentiments and philosophy there expressed are obviously those of Barham REED SEISMIC COMPANY' leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc. Hendrix Mfg. Co. v. N.L.R.B., 5 Cir. 1963, 321 •F.2d 100, 104-105 footnote 7, 53 LRRM 2831.... Although the facts here warrant an 8(a)(1) finding, I am making no such finding of a violation of Section 8(a)(1) on account of, this admitted surveillance and rumor mongering because (1) the matter was developed along with the exposure of Barham during the portion of ithe case devoted to the objections to the election, and (2) the complaint herein contains no allegation of a violation of the Act by reason of such surveillance and other activities. Except for the procedural consider- ations, I would find this surveillance, reporting to man- agement, and the rumor mongering, with the knowledge, consent, and acquiescence of Respondent, to be a viola- tion of Section 8(a)(1) because the proof thereof is so complete in this record. It is, undenied in this record that Respondent "rejected,". repudiated, or disclaimed none of Barham's admitted activities-although due to the undercover nature of • those activities on behalf of Respondent, this could hardly be anticipated. Although Barham is the rock, or the sand, on which Respondent's objections here must,either stand or fall, Respondent's -brief refers to Objections VI, X, and XIV19 where allegedly either Filburn or Gregston, appar- ently a prounion employee, made threats against an individual who testified. Both Filburn and Gregston denied the making of such statements. In one case Respondent's witness testified to an innocuous remark made by Filburn which the witness testified he considered to be "more or less a threat." This witness admitted that in the election booth he voted "his convictions" and not his fears (regardless of whether his vote was for or against the Union). In fact only one of Respond- ent's witnesses testified that he had voted his "fears." Even assuming the truth of the Respondent's testimo- ny, which I do not, independent incidents such as those described by Respondent's witnesses are not to be con- doned but are in the instant case so isolated, so generally innocuous, as well as, unhappily, so normal hnd natural during the heat of an election that they must be far more important and threatening than anything described herein to upset an election, even a close one. This is particularly so when the incidents which were really disruptive of the laboratory conditions were, as here, in fact inspired, promulgated, and 'circulated by the party filing the objections. The law applicable to the situation here was succinctly set forth by the Board in Camp Milling Company, Inc.,, 109 NLRB 471, where the Board said: 1e Objection XIV describes a statement allegedly made by Gregston to employee Harry Wright, not to be confused with Supervisor Edward Michael Wright But Harry Wright did not appear as a witness Much the same thing is involved in Objection I where allegedly employee Wright "overheard" a remark in a conversation between Filburn and Gregston However in Objection I' Supervisor Wright and Barham sup- plied the missing testimony from employee Harry Wright I have found neither witness worthy of credit and therefore accept the denials of this testimony made by Gregston and Filburn 169 The Peerless Plywood case must be read in the broader context of Board law and practice. The Board does not permit a party to an election to urge its own misconduct as a ground for setting aside an 'election. [Footnote omitted.] The reason is plain. Unless such a rule is operative one' or .the other party can always 'prevent a definitive selection of a bargaining representative by engaging in conduct which would ordinarily justify setting aside an election. For example, by delivering a speech on company time and property within 24 hours of an election, an employer could always be sure of stymying [sic] the Board's electoral process. If the employees voted for the union, the employer could point to the speech as preventing a free choice by the employees; if the union lost the election, the union could make the same objec- tion. The Board's election proceedings would thus be turned into a meaningless merry-go-round. As a practical matter, in order to protect the integrity of its own processes and to prevent a party from profiting by its own wrongdoing, the Board cannot .entertain an objection to an election based upon the objector's own misconduct. This rule governs the present case.. The Employer is estopped from objecting to the election upon the basis either of its own speech or that of the Petitioner [given 11rs hour prior to the opening of the election with the employer's consent]. In both cases it was at fault. In the case of its own speech, it was entirely in the wrong. In the case of the Petitioner's [Union] speech it was as much at fault as the Petitioner, for the latter could not have made the speech without the expressed permission of the Employer. So here Respondent is estopped by its own conduct. ,Accordingly I recommend that the Respondent's objections to the election be overruled in toto and that, upon the basis of the election held on December 6, 1968, the Union be certified as the exclusive representa- tive of all the employees in the appropriate unit. C. Refusal to Bargain, Facts and Conclusions As heretofore found, on some unspecified date before December 6, 1968, the Union offered Plant Manager Epley 30-odd authorization cards executed by the employees in the agreed-upon production and mainte- nance appropriate unit then consisting of a total of 49 employees with the request for recognition and bar- gaining. At that time Epley refused to even touch the authorization cards and kept reiterating by rote the phrase, "I have a good-faith doubt" until the Union picked up its signed cards and left the office with its request otherwise unanswered. Then on December 6 the employees voted, despite Respondent's efforts to the contrary by Epley and Bar- ham, 26 to 23 in favor of union representation. Simultaneously on December 6, Respondent unilateral- ly, without notice to or consultation with the Union, 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD granted wage increases to 25 employees in the unit without notice thereof to the employees themselves 20 One week later, December 12, the wage increases thus granted were reflected in the paychecks and simulta neously Respondent filed the aforementioned nonmerito- rious objections based, as found heretofore on its own wrongdoing The use of undercover agents, labor spies, and/or agents provocateur by an employer for antiunion purpos es has always and without exception been found to be one of the more vicious types of interference, restraint, and coercion and in violation of Section 8(a)(1) of the Act So at the time of the presentation of the cards and again on December 6 after the election Respondent knew, or deliberately refused proof thereof, that the Union represented a majority of its employees At this time the law required Respondent to recognize and bargain with this Union as the exclusive representative of the Respondent's employees in the appropriate unit Instead of so doing, however, on the first occasion Respondent disdained the opportunity presented it to examine the evidence of majority and on the second it chose to file its objections in question here In addition the Respondent at all times used the time delay so provided to attempt to dissipate the Union's majority status as proved by the very objections filed by it On its face these objections appear bona fide The good faith in the filing of these objections, however, completely disappeared with the unmasking of Ray Bar- ham as Respondent's undercover agent , labor spy, and agent provocateur which the evidence proved him to be No doubt Respondent was surprised by this disclo sure that Respondent itself was responsible for the condi- tions said to be existing in the plant at the time of the election which would have, under ordinary condi- tions, provided an ostensibly legitimate basis for said objections However that may be, this disclosure effec tively eliminated any claim of "good faith" by Respond- ent on either of the occasions noted above Thus Respondent used both Barham and its objections as means to evade its duty to bargain with the majority representative of its employees If Respondent here had seen fit to limit itself to the "good faith doubt" position as originally expressed without more, no doubt Respondent would have been entitled to have that alleged doubt resolved through a secret Board-conducted election even though in this record there was little, if any, factual foundation for such expressed doubt That, however, is not the case here Here Respondent chose to utilize the time secured by the use of that rote answer to attempt through the use of an undercover agent to dissipate the Union's claimed majority by keep- ing union activities under surveillance, by having such activities reported to it, by permitting and collaborating '" It io interesting to note that 9 out of the I1 employees identified in Respondents objections as involved on the Respondents side were included imong the 25 employees whose wages were increased Why the two were omitted therefrom remained unexplained with such agent in starting and circulating false and unfounded rumors of anticipated union violence thereby, in Respondent's own words, creating conditions so that "the election was held in an atmosphere of fear of reprisals which was not conducive to the sort of free and untrammeled choice of representatives which the National Labor Relations Act contemplates " Such were not little, unimportant, innocuous unfair labor practices These qualify as "massive" unfair labor practices which according to Respondent's appraisal, made prior to the unmasking of Barham, made the holding of a fair election impossible If so Respondent has only itself to blame Here the employees indicated their desire for union representation in an election despite the strenuous efforts made by Respondent and its agent Barham to prevent such a result Except for procedural considerations those strenuous efforts, as explained heretofore, would have been found to constitute serious unfair labor practices in violation of Section 8(a)(1) of the Act The law in this situation was made clear in N L R B v Gissell Packing Co , 395 U S 575, where the Supreme Court held C Remaining before us is the propriety of a bargaining order as a remedy for a Section 8(a)(5) refusal to bargain where an employer has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority and caused an election to be set aside We have long held that the Board is not limited to a cease and-desist order in such cases, but has the authority to issue a bargaining order without first requiring the union to show that it has been able to maintain its majority status See N L R B v Katz, 369 U S 736, 748, fn 16 (1962), N L R B v P Loril- lard Co , 314 U S 512 (1942) And we have held that the Board has the same authority even where it is clear that the union, which once had possession of cards from a majority of the employees, repre- sents only a minority when the bargaining order is entered Franks Bros Co v N L R B , 321 U S 702 (1943) We see no reason now to withdraw this authority from the Board If the Board could enter only a cease-and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him "to profit from [his] own wrongful refusal to bargain," Franks Bros , supra at 704, while at the same time severely curtailing the employees' right freely to determine whether they desire a representative The employer could continue to delay or disrupt the election processes and put off indefinitely his obligation to bargain, and any election held under these cir- cumstances would not be likely to demonstrate the employees' true, undistorted desires [Footnote omitted ]21 By thus itself engaging in massive unfair labor prac- tices designed to dissipate the Union's majority and to create conditions such as described in Respondent's 21 See N L R B v Amencan Cable Systems Iric 414 F 2d 661 (C A 5) REED SEISMIC COMPANY objections which , in Respondent 's opinion , made the holding of a fair election impossible , I find that, under the conditions here existing , Respondent is not only bound by the results of the election actually held but also thereby refused on December 6, 1968 , to bargain with the Union as the exclusive bargaining representative of Respondent's employees in the agreed-upon appropriate unit in violation of Section 8(a)(5) and (1) of the Act. In addition by granting 25 employees wage increases on December 6, 1968 , without notice to or consultation with the exclusive bargaining representative of those employees , Respondent has also refused to bargain in violation of Section 8(a)(5) of the Act. See N. L.R.B. v. Exchange Parts Co., 375 U. S. 405. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close , intimate, and substantial relationship to trade , traffic , and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Local 826, International Union of Operating Engi- neers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees employed at Respondent's plant in . San Angelo, Texas, excluding office clericals , salesmen, guards , watchmen, and supervisors 'as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. On December 6, 1968 , and at all times thereafter, Local 826 , International Union of Operating Engineers, 171 AFL-CIO, has been and now is the representative for the purposes of collective bargaining of a majority of Respondent's employees in the above-described unit and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employ- ees in such appropriate unit for the purposes of collective bargaining with Respondent Employer in respect to rates of pay, wages, hours of employment, and other condi- tions of employment. 4. By refusing on December 6, 1968, and at all times thereafter, to recognize and bargain with said Union as such exclusive representative of its employees, Respondent has refused to bargain with said exclusive representative as such representative in violation of Section 8(a)(5) and (1) of the Act. 5. By granting wage increases to 25 employees in the appropriate unit above found on December 6, 1968, without notice to or consultation with the aforementioned Union as the exclusive bargaining representative of the employees in that said appropriate unit, Respondent has refused to bargain with said Union in violation of Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices , I will recom- mend that it cease and desist therefrom and that it take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent has failed and refused to bargain with Local 826, International Union of Operat- ing Engineers , AFL-CIO, as the exclusive bargaining representative of Respondent's employees in the afore- mentioned appropriate unit consisting of the production and maintenance employees of Respondent , I will recom- mend that Respondent , upon request , recognize and bargain in good faith with said Union as such exclusive representative. [Recommended Order omitted from publication.]