Addison Shoe Corp.

ADDISON SHOE CORPORATION Addison Shoe Corporation and Industrial, Technical and Professional Employees , a Division of Na- tional Maritime Union , AFL-CIO. Case 26-CA-3229 June 30, 1970 SUPPLEMENTAL DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On February 14, 1969, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Judgment on the Pleadings, finding that Respon- dent had engaged in and was engaging in certain unfair labor practices within the meaning of the Na- tional Labor Relations Act, as amended, and recommending that Respondent cease and desist therefrom and take certain affirmative action. More specifically, the Trial Examiner found that Respon- dent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Industrial, Technical and Professional Employees, a Division of National Maritime Union, AFL-CIO, hereinafter referred to as the Union, which, pursuant to a second election held on August 28, 1968, in Case 26-RC-3130, was duly certified as the exclusive bargaining representative in an appropriate unit of certain of Respondent's employees, and recommended, inter alia, that Respondent bargain with the Union upon request. Thereafter, finding merit in certain of Respondent's exceptions to the Trial Examiner's Decision, the Board remanded the proceeding to the Regional Director for the purpose of arranging a hearing limited to the resolution of the issues raised by Respondent's Objection 1 to the second election. Accordingly, the record was reopened for that limited purpose, and a hearing thereon was held before Trial Examiner William F. Scharnikow On January 14, 1970, Trial Examiner William F. Scharnikow issued his Supplemental Decision in the above-entitled proceeding, finding that the evidence neither supports Respondent's Objection 1 nor furnishes any ground for setting aside the second election, that the Union had been properly certified as the exclusive bargaining representative of certain of Respondent's employees in an ap- propriate unit, and recommending that the Board adopt the findings, conclusions, and recommenda- tions of both his Supplemental Decision and Trial Examiner Weil's Decision, both of which are at- tached hereto. Thereafter, Respondent filed excep- tions to the Trial Examiner's Supplemental Deci- sion, together with a supporting brief. 333 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has considered the Trial Examiners' Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations as set forth in the Trial Examiner's Supplemental Decision, with the following modification.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the recommended Order of the Trial Examiner Weil's Decision, and orders that Respondent, Addison Shoe Corporation, Wynne, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in that Trial Examiner's recommended Order. ' While Respondent is correct in urgihg that the hearing on objections should have been conducted in accordance with the rules applicable to nonadversary proceedings, we do not find that the exclusion of the particu- lar hearsay evidence referred to in Respondent 's Objection I constituted prejudicial error It should be noted in this connection that Respondent did not offer the direct testimony of any of the employees whose statements to their supervisors were excluded, nor did Respondent make any claim that they were unavailable In fact, the record would indicate the contrary, since at least one of the said employees was present at the hearing Where direct testimony is apparently available , we cannot say that a Hearing Officer exceeds the bounds of his discretion in conducting an orderly hearing if he restricts to a reasonable degree the receipt of secondary and inherently less reliable evidence TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WELL, Trial Examiner : Upon a charge filed by Industrial , Technical and Professional Em- ployees, a Division of National Maritime Union, AFL-CIO , hereinafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 26, is- sued a complaint dated December 9, 1968, against Addison Shoe Corporation , herein called the Respondent , alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Sections 8(a)(5) and ( 1) and 2(6) and (7 ) of the National Labor Relations Act, as amended . Copies of the charge, complaint and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. The complaint alleges that the Union, having been duly certified on October 11, 1968, as the ex- clusive collective -bargaining representative of 184 NLRB No. 35 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's employees in an appropriate unit, has requested Respondent to bargain collectively since November 20, 1968, and that since such date Respondent has failed and refused to bargain with the Union as the representative of the employees in the unit. On December 13, 1968, Respondent filed its answer to the complaint in which it admitted in part and denied in part the allegations contained therein and denied that any unfair labor practice had been committed. On December 20, 1968, the General Counsel filed with the Chief Trial Examiner a Motion for Judgment on the Pleadings, asserting that there were no issues of fact or law requiring a hearing and requesting the issuance of a recommended decision finding the violation as alleged in the com- plaint and remedying the violations. Thereafter on January 6, 1969, Trial Examiner Charles W. Schneider issued an order to show cause why General Counsel's motion should not be granted. Pursuant thereto Respondent filed its response to the order to show cause with four sup- porting affidavits. General Counsel thereafter filed a motion to strike the four affidavits to which the General Counsel filed an opposition.' Upon the entire record' in this case, and in con- sideration of the motions and the responses thereto I make the following ruling: Ruling on the Motion for Summary Judgment The record establishes that the Union filed a peti- tion in Case 26-RC-3130 seeking to represent a unit of Respondent's production and maintenance employees After a hearing the Regional Director for Region 26 issued a Decision and Direction of Election on April 25, 1968, in which he found ap- propriate for bargaining the following unit of em- ployees. All production and maintenance employees at Respondent 's Wynne, Arkansas plant exclud- ing all office clerical employees , guards and su- pervisors as defined in the Act. An election was held pursuant to the Regional Director 's orders in which 198 votes were cast for the Union , 12 votes for the Intervenor, Boot and Shoe Workers Union , AFL-CIO , which sub- sequently withdrew , and 206 against the participat- ing labor organization . Three ballots were void and 20 were challenged . The Union filed objections which were investigated and pursuant to which a Supplemental Decision and Direction of Second Election was issued by the Regional Director sustaining certain challenges, sustaining one of the Union 's objections, setting aside the election, and directing a second election. ' The motion is denied The affidavits were properly attached in support of Respondent 's proffer of evidence Y Administrative notice is taken of the record in the representation proceeding , Case 26-RC-3130, as the term " record " is defined in Sec 102 68 and 102 69 (t) of the Board's Rules and Regulations , Series 8, as On August 28 a second election was conducted at which a majority of votes were cast for the Union. On September 5, 1968, Respondent filed timely objections which, after investigation, were overruled by the Regional Director and the Union was certified Respondent filed a request for review of the Regional Director's Second Supplemental Decision and Certification of Representative which the Board denied by telegraph on November 13, 1968, on the ground that it raised no substantial issue warranting review. The Board further stated, with regard to a request by Respondent for a hear- ing to adduce certain evidence set forth in its request for review, that "even if the evidence ad- vanced in support of Objection 1 were credited the employees could reasonably evaluate it as propaganda and would not warrant setting aside the election " Since November 26, 1968, the Union has been demanding and Respondent has refused bar- gaining with the Union as the exclusive bargaining representative of the employees in the unit certified pursuant to the representation case and the Union filed the charges upon which these proceedings are predicated. In its response to the notice to show cause Respondent submits that the motion of General Counsel should be denied on the following grounds. ( I ) That the General Counsel fails to state grounds for the motion, (2) that the summary proceeding is abnormal in a situation such as that existing here, (3) that Respondent is denied due process if it is not granted a hearing herein on the issues allegedly raised by its Objection 1 to conduct affecting the results of the second election, and finally that the motion does not meet the requirements of Rule 56(c) of the Federal Rules of Civil Procedure, in that there is a genuine issue as to the validity of the election and the status of the Union and a hearing is required. It is well settled that in the absence of newly discovered or previously unavailable evidence a Respondent in an 8 (a)(5) proceeding is not entitled to relitigate issues which were or could have been raised in the prior representation proceeding.3 Respondent's contention that the Board's own Rules and Regulations, the Administrative Procedure Act, and the Labor Management Rela- tions Act all guarantee an absolute right to hearing is not correct. Where no litigable issues have been raised the Board may entertain and rule upon mo- tions for summary judgment or judgment on the pleadings and has done so in numerous cases with court enforcement. See LTV Electrosystems, Inc. v. N L R.B., 388 F.2d 683 (C.A. 4, 1968); N.L.R.B. v. Aerovox Corporation, of Myrtle Beach, S.C., 390 F.2d 653 (C.A. 4, 1968); Neuhoff Brothers, Packers, Inc. v. N.L.R.B., 362 F.2d 611 (C.A. 5, amended See LTV Electrosystems, Inc , 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co , 167 NLRB 151, 9(b) of the NLRA 9 Pacific Intermountain Express Company, 173 NLRB 470, and cases therein cited ADDISON SHOE CORPORATION 1966); N.L.R.B. v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172 (C.A. 6, 1967); Fol- lett Corporation v. N.L.R.B., 397 F.2d 91 (C.A. 7, 1968). With regard to Respondent's contention that it must be afforded a hearing on its first objection, this contention was raised in the representation case and specifically in the appeal from the Re- gional Director's issuance of the certification. While the Board in that matter did not afford Respondent a hearing, it is obvious from the Board's telegram that the material which Respon- dent proffers was considered by the Board and re- jected. In any event in the absence of material un- resolved factual issues or newly discovered or previously unavailable evidence or special circum- stances, none of which are asserted to be present here, and under the circumstances, that the conten- tions now made were raised in the earlier represen- tation case and were rejected, there are no un- resolved issues requiring an evidential hearing. In- asmuch as Respondent admits that it has refused to bargain with the Union, asserting that the Union is not the legally certified representative of Respon- dent's employees and the Board having found the contrary in the representation case, the motion of the General Counsel for summary judgment on the pleadings is granted. On the basis of the record before me I hereby make the following further: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Arkansas corporation, is engaged in the manufacture and distribution of shoes from its plant located at Wynne, Arkansas. During the past 12 months, a representative period, Respon- dent manufactured and shipped from its Wynne, Arkansas, plant its product valued in excess of $50,000 directly to points located outside the State of Arkansas. It is admitted and I find that Respon- dent is 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. 11. THE LABOR ORGANIZATION INVOLVED Industrial , Technical and Professional Em- ployees, a Division of National Maritime Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees at Respondent's Wynne, Arkansas , operation constitute a unit ap- 335 propriate for collective bargaining within the mean- ing of Section 9(b) of the Act. All production and maintenance employees at Respondent's Wynne, Arkansas plant exclud- ing all office clerical employees, guards and su- pervisors as defined in the Act. 2. The certification On August 28, 1968, a majority of the employees of Respondent in said unit in an election by secret ballot conducted under the supervision of the Re- gional Director for Region 26 designated the Union as their representative for the purpose of collective bargaining with Respondent and on October 11, 1968, the Regional Director for Region 26 certified the Union as the collective-bargaining representa- tive of the employees in said unit and the Union continues to be such representative. B. The Request To Bargain and the Respondent's Refusal Commencing on or about November 26, 1968, and continuing to date the Union has been requesting the Respondent to bargain collectively with it with respect to wages, hours, and working conditions of the employees in the appropriate unit. At all times since November 26, 1968, Respondent admittedly has refused to recognize and bargain collectively with the Union as exclusive collective- bargaining representative of all employees in said unit. Accordingly I find that Respondent has refused to bargain collectively with the Union as the exclusive bargaining representative of the em- ployees in the appropriate unit and that by such refusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act I shall recommend that it cease and desist therefrom and upon request bargain collectively with the Union as the exclusive representtive of all employees in the appropriate unit , and if an understanding is reached embody such understanding in a signed agreement. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law I shall recommend that the initial year of certification be construed as beginning on the date that Respondent commences to bargain in good faith with the Union as a recognized bargaining representative in the appropriate unit. See Pacific Intermountain Express Company , supra, and cases there cited. CONCLUSIONS OF LAW 1. Addison Shoe Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 Industrial, Technical and Professional Em- ployees, a Division of National Maritime Union, AFL-CIO, is a labor'organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees employed by Addison Shoe Corporation at its Wynne, Arkansas, plant, excluding all office cleri- cal employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 26, 1968, the above-named labor organization has been certified as the exclu- sive representative of all employees in the aforesaid appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 26, 1968, and at all times thereafter to bargain collectively with the above-named labor orgainzation as the ex- clusive bargaining representative of all the em- ployees of Respondent in the appropriate unit Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain Respon- dent has interfered with, restrained, and coerced and is interfering with, restraining, and coercing employees in the exercse of the rights guaranteed them in Section 7 of the Act and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and upon the entire record in the case I recommend that the Board issue the following: (a) Refusing to bargain collectively concerning wages, hours and other terms and conditions of em- ployment with Industrial , Technical and Profes- sional Employees , a Division of National Maritime Union , AFL-CIO, as the exclusive bargaining representative of its employees in the following ap- propriate unit. All production and maintenance employees of Addison Shoe Corporation at its Wynne, Ar- kansas plant excluding all office clerical em- ployees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with , restraining, or coercing employees in the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay , wages, hours, and other terms and conditions of employment and if an un- derstanding is reached embody such understanding in a signed agreement. (b) Post at its Wynne, Arkansas , place of busi- ness copies of the attached notice marked "Appendix."' Copies of said notice , on forms pro- vided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced , or covered by any other material. (c) Notify the Regional Director for Region 26, in writing , within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.5 4 In the event that this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "A Decision and Order " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX ORDER Addison Shoe Corporation its officers , agents, successors, and assigns, shall: 1. Cease and desist from: NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- ADDISON SHOE CORPORATION tional Labor Relations Act, as amended , we hereby notify our employees that. WE WILL NOT refuse to bargain collectively with Industrial , Technical and Professional Employees , a Division of National Maritime Union , AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL upon request bargain with the above-named Union as the exclusive represent- ative of all the employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of em- ployment and if an understanding is reached embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance em- ployees of Addison Shoe Corporation at its Wynne , Arkansas plant excluding all office clerical employees , guards and su- pervisors as defined in the Act. ADDISON SHOE CORPORATION (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: In a Decision issued on February 14, 1969, Trial Ex- aminer Paul E. Weil granted the General Counsel's motion for summary judgment on the pleadings in the above-entitled case and found that the Respon- dent had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to bargain with the Union which had been certified by the Regional Director for Region 26 on ' By telegraphic order issued in the representation case on November 13, 1968, the Board dented the Respondent's request for a review of the Re- 337 October 11, 1968, in Case 26-RC-3130, following a second election conducted on August 28, 1968, in a unit of production and maintenance employees at the Respondent's Wynne, Arkansas, plant. As appears more fully in Trial Examiner Weil's Deci- sion, he recommended the issuance of a Board Order directing the Respondent, upon request, to bargain collectively with the Union as the exclusive bargaining representative of the Respondent's em- ployees in the certified unit. On March 10, 1969, the Respondent filed excep- tions to Trial Examiner Weil's finding that the Union is the legally certified bargaining representa- tive in the appropriate unit It contends that the election of August 28, 1968, should have been set aside by the Regional Director or the Board in Case 26-RC-3130 on the basis of the Respondent's ob- jections to the election or, alternatively, that the Respondent should have been afforded a hearing on the issues raised in its Objection I, the sole ob- jection on which the Respondent requested review by the Board.' Upon consideration of the Respondent's excep- tions to Trial Examiner Weil's Decision, the Board by order issued on July 17, 1969, and amended on August 27, 1969, reopened the record, remanded the present proceeding to the Regional Director for Region 26, and directed that a full hearing be held before a duly designated Trial Examiner of the Boaid on issues raised by Respondent's Objection I to the second election in Case 26-RC-3130. The Board further ordered that: [U]pon the conclusion of such hearing, the Trial Examiner shall prepare and serve on the parties a Supplemental Decision containing findings of fact and such conclusions of law and recommendations as he may deem ap- propriate based on the evidence received pur- suant to the provisions of this Order and the entire record in this proceeding; and that fol- lowing the service of such Supplemental Deci- sion on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. Pursuant to notice, the supplemental hearing directed by the Board was held at Wynne, Arkan- sas, on September 4, 1969, before me, the Trial Ex- aminer dully designated by the Chief Trial Ex- aminer. The General Counsel, the Respondent, and the Union appeared by their respective counsel and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to in- troduce evidence bearing upon the merits of the Respondent's Objection I, which the Respondent had filed as the Employer in Case 26-RC-3130. Since the close of the hearing, I have received and considered briefs filed by counsel for the Respon- dent and counsel for the Union Upon the evidence received by me in the supple- gional Director's action in certifying the Union and dismissing the Respon- dent's objections upon investigation but without hearing 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mental hearing of September 4, 1969, my observa- B. The Evidence tion of the witnesses, and a consideration of the en- tire record in this proceeding,' I make the following findings of fact, supplemental conclusions of law, and recommendations: FINDINGS OF FACT A. Respondent's Objection Ito the Election of August 28, 1968 In March 1968, the Respondent completed U.S. Government shoe contracts which had furnished 95 percent of its orders, and was forced to lay off a substantial number of its employees. In July or Au- gust 1968, it acquired new government contracts and, by the time of the representation election on August 28, 1968, had begun to hire and rebuild its workforce. Objection I, which the Respondent filed with the Regional Director in the representtion case in an attempt to upset the election apparently won by the Union, alleged that in this setting the Union's representatives had made certain improper preelection statements to the employees concerning the injurious effect which the Union's loss of the election and the Respondent's failure to enter into a contract with the Union on the Union's terms would have upon the Respondent's business and the employment prospects of employees in the bargain- ing unit. Specifically, in Objection I, the Respondent, referring to itself as " the Employer" or "Addison" and to the Union as the "Petitioner," stated that: During the course of a meeting attended by the Employer's employees on or about August 26, 1968, and thereafter on other occasions, the Petitioner, by its officers, agents and representatives, stated that: 1. The Employer's ability to secure con- tracts from the United States Government, its major customer, was dependent on the Petitioner 's success in the election; 2. Addison would obtain more Govern- ment contracts if the Petitioner represented the employees; 3. Addison's customers, civilian and otherwise, would purchase more of its product with the Union label appearing thereon; and, 4. If the Employer did not agree to the Petitioner's contract demands, as ex- pressed to the employees, the Petitioner could, and would, cause its Government contracts to be stopped. ' The record prior to the hearing held by me (i e , the record before Trial Examiner Weil as well as his Decision thereon ) consists of the documents filed in the formal files of Cases 26-RC-3130 and 26-CA-3229, all of The evidence offered and taken before me at the supplemental hearing on September 4, 1969, dealt with the factual issue of whether in a union meeting held at the National Guard Armory in Wynne on August 26, 1968, 2 days before the second representation election, any one or more of the three union representatives who appeared at the meeting (J. C. Hughes, Robert Collilieux, and Mack Hall) made any or all of the statements al- leged in Respondent's Objection I to the approxi- mate 75 employees who attended the meeting. To support the substance of its objection, the Respondent produced the direct testimony of one witness, employee Richard B. Robinson, and proffered only the additional testimony of three of its supervisors (James Caldwell, Jerry Evans, and Russell Harper) concerning what Robinson and em- ployees Mary DeLoach, Helen Russell , Barbara Woods, Joe Harris, and a Mrs Johnson had told them was the substance of the remarks made by the union representatives at the meeting. On the Union's objection, I excluded this latter testimony as hearsay. The Respondent did not offer the testimony of employee Helen Russell although she was in the hearing room during the trial. Nor did the Respondent produce any testimony by the other employees who had assertedly given their versions of the meeting to the Respondent's supervisors. Nor did it claim that these employees were unavailable to testify On the other hand, the Union produced the direct testimony of the three union representatives concerning the meeting and that of three em- ployees who had attended the meeting. In addition, the General Counsel made available the testimony of other employees who had submitted affidavits to the Regional Director in the representation case, although only two of this latter group testified be- fore me since it appeared from the General Coun- sel's representation that the testimony of the others would be cumulative and both the Respondent and the Union disclaimed any desire to put them on the witness stand. 1. The testimony of Richard B. Robinson Employee Richard Robinson, as the Respon- dent's witness, testified that he attended the union meeting at the National Guard Armory 3 days be- fore the election of August 28, 1968, with approxi- mately 70 other employees and that the meeting was conducted by three union representatives. Dur- ing his direct examination, he was able to identify one of these representatives as Mack Hall and the other two merely as "Joseph" and a union which I have examined and considered pursuant to the Board's Orders of July 17 and August 27, 1969 ADDISON SHOE CORPORATION 339 representative from St. Louis. He also testified that it was Hall and "Joseph" who made the general re- marks to the employees which the Respondent claims were improper. But during his cross-ex- amination, Robinson identified Robert Collilieux who was sitting in the hearing room as "Joseph" and, although he was not sure, he testified both that J. C. Hughes (who was also there in the hearing room) might have been the union representative from St. Louis,3 and that, although Hall and Col- lilieux did speak to the employees, Hall, after lead- ing the employees in a pledge of allegiance to the flag and making some comments of his own, might have turned the meeting over to Hughes and left the front of the meeting to go to the door of the hall in which the meeting was held. It was on this confusing foundation that Robinson testified concerning what one or another of the union representatives told the employees first in general opening statements about wages and job classifications, the contract the Union expected to get, and union dues and forms of assistance, and then in answer to specific questions asked by vari- ous employees. With respect to the matters raised by the Respondent's Objection I, Robinson testified on direct examination that in speaking of the im- portance of the Union's winning the representation election, the union representatives told the em- ployees that ". . . [I]f we don't get in, we will hold up the shoe contract, if we do get in, we will still hold up [the Respondent's shoe contract] until we negotiate a [Union] contract . . and the factory would automatically have to [shut] down. .." In development of this theme, according to Robinson, the union representatives said that the Union "had influence connected with the government" and, by "some kind of talk with the government," could either "help the Company get more contracts" or, if it lost the election or was unable "to negotiate a contract" with the Respondent to its liking, it could have the Respondent's shoe "contract cut off " On cross-examination, Robinson testified that the employees asked the union representatives what would happen to their jobs "if the contract gets turned down," how long they would be on strike if a strike were called, and, if a contract were negotiated with the Respondent would it necessari- ly be on the Union's terms. To this last question, according to Robinson, the union representative said that the Union would settle for what it could get in the first year and then increase its demands until it got what it wanted. Still according to Robin- son on his cross-examination, one of the employees asked whether the Union could stop the Respon- dent's shoe contracts, and the union representative answered, "Yes, it could be stopped" although he did not say how. On redirect examination, Robin- son testified that the union representative said that "if the Union did not get in" (i.e., win the elec- tion), it would have the Respondent's shoe con- tracts "turned down",but on further questioning by union counsel, he corrected himself and testified that the union representative said the Union would try to get the government contracts stopped, not if it lost the representation election, but if the Union "didn't get the contracts [with the Respondent] negotiated to suit them." 2. The testimony of other employees The three employees who testified as witnesses for the Union (Edith Porter, Raymond Gilbert, and Gladys D. Thomas) and the remaining two em- ployees whose testimony was presented by the General Counsel (Mattie Caldwell and James L. Counce) had no recollection that Union Represen- tative Mack Hall spoke to the employees at the meeting except to lead the pledge of allegiance after which he left the front of the meeting to go to the door, greet and seat late arrivals, and take pic- tures All five of these employee-witnesses agreed that it was Hughes (whom some of them did not know by name at the time) who addressed the au- dience and answered questions during the meeting. One of these five employee-witnesses (Mattie Caldwell) testified flatly that none of the statements listed in Respondent's Objection I was in fact made by the Union's representatives. Three others (Porter, Gilbert, and Thomas) testified that they did not hear-and the remaining employee witness (Counce) testified that he did not recall-the union representatives' making any such statements Moreover, each of the employee-witnesses in this group who was specifically asked by counsel, testified that he did not hear or recall any mention of an "unfair list"" or any references to "govern- ment contracts,"5 or to the Union's " influence with the government."' But the recollection by these witnesses of what Hughes or either of the other union representatives said throughout the meeting was meager, it appear- ing from their testimony that some of the women employees had brought their children, that refresh- ments were served, and that the meeting was noisy. Employee Edith Porter could recall nothing that was said. Employee Raymond Gilbert could recall nothing that was said except that a union contract was discussed. Employee Jewel Thomas remem- bered the union representatives' saying that the Union would "try to help [the Respondent] get more and better contracts" and thus "benefit" the employees. And employee James Counce testified that he could not remember either Hughes or Col- lilieux making any statements except in answer- ing questions from the floor as to the contract terms J Just before this, Robinson had tentatively identified John Frank, who was in the audience and was an NMU agent from St Louis, as the impor- tant union visitor to the August employees' meeting ' Testimony of Raymond Gilbert Testimony of James Counce s Testimony of Jewel Thomas and Mattie Caldwell 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the Union could negotiate, like "better in- surance" and a "better vacation " 3. The testimony of the union representatives Testifying as witnesses for the Union, its three representatives (Hughes, Collilieux, and Hall) de- nied that any of them had made any of the state- ments attributed to them in the Respondent's Ob- jection I at the employee meeting on August 26, 1968. All of them agreed that, except for leading the pledge of allegiance and turning the meeting over to Hughes, Hall did not address the meeting but occupied himself in greeting employees at the door, seeing that they were seated, and taking pic- tures for the NMU's publication. They further agreed that it was Hughes who spoke to the people at the meeting and answered most of the questions from the floor, although Collilieux also answered some of the questions. In addition to denying having made or heard any of the statements outlined in Respondent 's Objec- tion I, Hall testified that he was in fact too busy to hear what Hughes or Collilieux said at the meeting and that, although some of the employees did ask him some questions, none of the questions nor his answers related to stopping the Respondent's government contracts, the Union's possible assistance in getting more government contracts, strikes, or an unfair list. Hughes testified that in his opening remarks he spoke of rumors reported to him that the Union's dues and assessments were high, that he therefore explained the Union's dues structure and the absence of assessments, that he referred to the loss by unions of six previous representation elections in the plant and the importance of winning the coming election since it was unlikely that any union would ever again attempt to organize the plant, and that he warned them that foremen might question them about their signing cards or otherwise supporting the Union and that if this happened, it was an un- fair labor practice. In addition to denying their hav- ing made any of the remarks charged in Respon- dent's Objection I, Hughes also specifically denied that he or Collilieux told the employees at the meeting that the Union had "influence with the government" or could "in any way stop the govern- ment's contracts," that the Respondent would receive more contracts if it "would have [the] Union," that "future contracts of the Company were in any way dependent on the Union winning the election," or that the Union was "able to call somewhere to have the [Company's] contracts stopped because they were not treating their people right." According to Hughes' testimony, there were questions from employees as to whether higher union wages would price the Respondent out of government contracts, and whether the Respondent could protect its production in the event of a strike, by using "scabs." Hughes testified that he told the employees the Respondent would be compensated for higher union wages by the usual "escalation clauses" in government contracts and that, in answer to the second question, he told the em- ployees, without any reference to government con- tracts, that in the event of a strike the Union would ask the AFL-CIO to put the Respondent on a "don't purchase list" or an "unfair list." Collilieux, the third union representative, testified that after Hughes made his opening state- ment, Hughes and he answered questions from the audience and that neither of them made any of the statements charged in Respondent's Objection I. He testified that, in answer to questions about strikes he said "We would have an election first and that if the Company did not negotiate then it was up to the membership to elect what they wanted to do." Although he could not recall making any comments about how negotiations would be handled, Colliliex admitted in his testimony that he might have said that the Union would resort to a strike only if it "could not get anything out of the Company." He denied making any comments during the meeting about having influence with the government, or saying that if the Company did not bargain or "negotiate the way the Union wanted, the Union would stop the government or other contracts," or that, "If the Company would not sit down and negotiate, he thought certain pressure could be brought to bear upon the Company" through the government. Finally, although adhering to his deni- als that he had made any of the foregoing state- ments or had referred to "government contracts" or "procurement agencies" in the meeting of Au- gust 26, Collilieux admitted in his testiomy that at a committee meeting with some of the employees an August 20 or 24, he did say that "if the Company could not face the responsibility in negotiating in good faith and [a] strike was called by the member- ship, we would go all out including appealing to a procurement agency or some type of agency requesting that the government take a second look at their contracts." C. Conclusions The Respondent's Objection I to the election of August 28, 1968, has already been set forth ver- batim. Its gravamen is that the Union's representa- tives made improper preelection statements to the employees and thus prevented a free and fair elec- tion, by urging the employees to vote for the Union because the Union had a special influence with the government whose contracts were the principal source of Respondent's business and the Union could and would effectively exert this influence either to help the Respondent get more contracts if the Union won the election, or "to stop" the Respondent's government contracts if the Union lost the election or was unable to get the contract it wanted with the Respondent. ADDISON SHOE CORPORATION 341 The evidence which has been summarized in detail does not support the Respondent's position. The testimony of employee Richard Robinson, the only direct witness the Respondent was able to produce at the hearing was in my opinion so vague and uncertain as to what happened and what the Union's representatives actually said at the meeting of August 26, as to be unpersuasive Furthermore, the only employee-witnesses produced by the Union and the General Counsel, although they were unable to give anything like a full account of the remarks made to them by the union representa- tives at the meeting, either denied, or could not re- call, any statements in the substance alleged in the Respondent's objection But the testimony of the three union representatives was clear, presented what appeared to be substantially a full account of the material substance of their remarks to the em- ployees at the meeting, and in my opinion is credi- ble. Accordingly, upon consideration of the evidence before me, I credit not only the specific denials by the three union representatives that they made any statements to the employees in the form or sub- stance charged in Respondent's Objection I, but also their detailed denials of the various separate elements, expressed or implied in the Respondent's objection, i.e., that the union representatives told the employees (1) that the Union had influence with the government; (2) that the Respondent's ability to secure government contracts was depen- dent upon the Union's winning the election; (3) that the Union could "stop" the Respondent's government contracts; or (4) that the Union could and would cause the Respondent's government contracts "to be stopped" either if the Union lost the election or if the Respondent did not give the Union the contract it wanted. Upon this consideration of the evidence, I accept the testimony and denials of the Union's represen- tatives and reject the main thrust of the Respon- dent's objection that the union representatives made remarks to the employees even suggesting a claim of government influence which the Union would use to "stop" the government contracts if it lost the election. Contrary to the Respondent's con- tention, I find that the union representatives made no such threat of reprisal against the employees if they voted against the Union in the election, as would have coerced the employees in their vote, prevented a fair and free election, and required the Regional Director to set the election aside. There remains for consideration the evidence given not only by employee Richard Robinson as the Respondent's witness, but also by union representatives Hughes and Collilieux, as to what the two union representatives told the employees the Union would do if, having won the election, it was then unable to secure a contract with the Respondent containing the favorable terms which the Union said it wanted on behalf of the em- ployees. Robinson testified (it will be recalled) that the union representatives said that, if the Union won the election but was unable to negotiate the contract it wanted, the Union would "try to get the government contracts stopped." Hughes testified that he told the employees at the meeting on Au- gust 26 that, in the event of a strike on bargaining issues, the Union would ask the AFL-CIO to put the Respondent on a "do not purchase list" or an "unfair list." And Collilieux testified that, at an earlier committee meeting with some of the em- ployees on August 20 or 24 but not at the meeting on August 26, he said that if the Respondent did not bargain in good faith and there were a strike, the Union "would go all out including appealing to a procurement agency or some type of agency requesting that the government take a second look at their contracts." Upon this branch of the evidence, the Respondent claims that the union representative unfairly induced the employees to vote for the Union in the election by holding out to them the possibility of improper customer pressures which they could expect the Union, if elected as their representative, to exert on their behalf against the Respondent. But this sort or direct appeal by a union to the customers of an employer to withhold business dur- ing a strike or dispute with the employer over con- tract terms covering employees whom the union represents "is a traditional primary weapon aimed at the public at large which represents a direct thrust against the primary employer"7 and is per- missible and lawful under the Act.8 Certainly, a union in selling itself to employees as their prospec- tive bargaining representative may properly describe this type of available lawful tactic as one which it might bring to bear upon their employer for their benefit, when and if they have seen fit to select the union as their bargaining representative in an approaching Board election. In the present case, this was the substance of the remarks made by the Union's representatives to the employees before the election, so far as they touched at all upon the Union's possible tactics in bargaining with the Respondent if the Union won the election. It is immaterial that the government was in fact the Respondent's principal customer among those to whom the Union might lawfully direct an appeal for support. For, as I have found upon the testimony of the Union's representatives and the employees other than Robinson, the Union's representatives made no statement to the employees that the Union had any special influence with the government, that the Union's possible fu- ture appeals for support during contract negotia- tions with the Respondent would have any more ef- fect upon the government as a customer than upon District Council of Painters No 48 ( Hamilton Materials Inc ), 144 /bid See also N L R B v Servette, Inc , 377 U S 46 NLRB 1523, 1524,enfd 340 F 2d 107 (C A 9),cert denied 381 U S 914 427-835 0 - 74 - 23 342 DECISIONS OF NATIONAL any other customer, nor that there would therefore be any unfair, predictable, or automatic alignment of governmental and union power against the Respondent if the employees voted for the Union as their statutory exclusive bargaining representative. Accordingly, I conclude that the Union representa- tives' preelection statements to the employees about the available customer pressures which the Union might bring to bear upon the Respondent in the course of future contract negotiations should the Union win the representation election, were perfectly proper, and furnished no grounds for setting the election aside. Upon the foregoing findings of fact made upon the evidence received by me in the supplemental hearing on September 4, 1969, as directed by the Board, and for the reasons stated by me in connec- tion with these findings, I make the following: SUPPLEMENTAL CONCLUSIONS OF LAW 1. The evidence does not support Objection I which the Respondent filed to the election held on LABOR RELATIONS BOARD August 28, 1968, in Case 26-RC-3130, nor does it therefore furnish any ground for setting the election aside. 2. Pursuant to the results of the aforesaid elec- tion, the Regional Director on October 11, 1968, properly certified the Union to be, and the Union has since been, the exclusive bargaining representa- tive of all of the Respondent's employees in the described appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act RECOMMENDED ORDER Upon the foregoing findings of fact and supple- mental conclusions of law, I recommend that the Board now addopt the foregoing supplemental con- clusions of law, in addition to confirming and adopting the consistent original Conclusions of Law and Recommendations made by Trial Examiner Paul E Weil in the Decision issued by him on February 14, 1969.