Smith Industries, Inc.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith Industries , Inc. and United Steelworkers of America, AFL-CIO. Case 23-CA-2500 August 29, 1969 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On March 23, 1967, the National Labor Relations Board issued its Decision and Order' in the above-entitled proceeding Thereafter, on November 12, 1968, the United States Court of Appeals for the Fifth Circuit entered an opinion and decree,' remanding the matter to the Board with direction to afford Respondent a hearing with respect to the validity of the election and certification. On January 17, 1969, the Board issued its Order Reopening Record and Remanding Proceeding to Regional Director. On June 5, 1969, Trial Examiner Morton D, Friedman issued his Decision on Remand, attached hereto, finding that Respondent's objections to conduct affecting the results of the election were without merit and, therefore, that the Board properly certified the Union pursuant to the results of that election. Accordingly, the Trial Examiner concluded that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to recognize and bargain with the Union as the exclusive representative of employees in the appropriate unit. Thereafter, Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed an answering 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 connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent herewith-' The Trial Examiner found that certain misrepresentations which were embodied in a union leaflet distributed shortly before the election, were not sufficiently misleading, or of sufficient import, to warrant setting the election aside. We do not '163 NLRB No 93 '403 F 2d 889 (C A 5) 'In view of our disposition of the case we find it unnecessary to decide whether or not an atmosphere of fear prevailed throughout the plant sufficient to have had an impact upon the results of the election agree The election was held on April 7, 1966. The handbill in issue was circulated on April 5, 2 days before the election . Therein, the Union asserted with respect to its contract with a competitor company of the Employer , whose employees are represented by the Union, that "the Christmas bonus was tied down in writing in the contract ." In fact , not only did that contract fail to provide for a Christmas bonus, but the record makes clear, and the Trial Examiner found , that the Union had traded any claim for such a benefit in exchange for other items. Although the Trial Examiner found that the Employer distributed a handbill on April 6 "which, at least , was somewhat successful in answering the Union's claims ," that leaflet did not challenge the false assertion discussed above. Indeed , during the brief period between the April 5 distribution of the Union leaflet and the April 7 election, Respondent was unable to gather the true information on this issue, much less disseminate that information to its employees. Thus, the handbill in question contained a substantial misrepresentation with respect to a wage related subject , a matter of the utmost concern to employees voting in the election . It was made by a party in an authoritative position to know the true facts, and the handbill was circulated at a time which precluded effective reply. The Union thus exceeded the bounds of lawful electioneering and interfered with the free choice of the employees. Accordingly, the certification of the Union by the Board is invalid and Respondent , by refusing to recognize and bargain with the Union, did not violate Section 8(a)(5). We shall dismiss the complaint in its entirety. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: For the reasons set forth by the Trial Examiner, I would affirm his decision. TRIAL EXAMINER 'S DECISION ON REMAND STATEMENT OF THE CASE MORTON D. FRIEDMAN , Trial Examiner : Pursuant to stipulation between United Steelworkers of America, AFL-CIO, herein called the Union , and Smith Industries, Inc., herein called the Respondent, a consent election was conducted in Case 23-RC-2646 on April 7, 1966, by the Regional Director for Region 23 of the National Labor Relations Board , herein called the Board, among Respondent ' s employees in an agreed-upon appropriate unit in which of approximately 215 eligible voters, 212 cast ballots, of which Ill were for, 85 were against, the Union and 16 ballots were challenged Thereafter, on April 14, 1966, Respondent timely filed objections to conduct affecting the results of the election Thereupon, the aforesaid Regional Director investigated the objections 178 NLRB No. 46 SMITH INDUSTRIES 295 and on July I, 1966, issued his report finding the objections to be without merit and recommending that they be overruled in their entirety and that the Union be certified as bargaining representative of Respondent's employees in the appropriate unit. Thereafter, on July 13, 1966, the Respondent timely filed exceptions to the Regional Director's report on objections On August 26, 1966, the Board issued a Decision and Certification, adopting the Regional Director's findings and certifying the Union as exclusive bargaining representative of the Respondent's employees in the appropriate unit. Thereafter, upon a charge filed by the Union on September 13, 1966, the aforesaid Regional Director issued his complaint in the instant proceeding dated September 20, 1966, alleging that Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. Respondent filed a timely answer to the said complaint in which it admitted jurisdiction but denied all the other material allegations. On October 7, 1966, counsel for the General Counsel filed a motion for summary judgment, which motion, upon order to show cause issued by a Trial Examiner of the Board, was answered by the Respondent which, in essence, stated that the certification of the Union was improper because the objection to the election tiled by the Respondent in Case 23-RC-2646 had merit and the Respondent should have been given a hearing thereon and an opportunity to present evidence in support thereof On January 11, 1967, a Trial Examiner issued his decision on motion for judgment on the pleadings in which General Counsel's motion for summary judgment was granted and the Respondent was found to have violated Section 8(a)(5) and (1) of the Act. On March 23, 1967, the Board issued its Decision and Order ' affirming, without comment, the findings and recommendations of the Trial Examiner and adopting as its Order the Recommended Order of the Trial Examiner Thereafter the General Counsel filed with the United States Court of Appeals for the Fifth Circuit a petition for enforcement of the Board's Order, to which petition the Respondent filed an answer. On November 12, 1968, the court of appeals handed down its opinion refusing to enforce and setting aside the Board's Order and remanding the case to the Board for a full hearing Pursuant to the aforesaid remand, the Board, on January 17, 1969, reopened the proceeding and remanded it to the Regional Director for Region 23 for a full hearing before a Trial Examiner for the purpose of permitting the Respondent to adduce evidence in support of its objections to conduct affecting the election in order to test the validity of the election and the resulting certification Said order further instructed the Trial Examiner, upon the conclusion of the hearing, to prepare and serve upon the parties a decision containing findings of fact, conclusions of law, and recommendations Pursuant to notice issued by the said Regional Director, a hearing was held before me in Houston, Texas, on March 11, 12, and 13, 1969, in which all parties appeared and were afforded full opportunity to present evidence of the subject matter of the remand, examine and cross-examine the witnesses, present oral argument, and file briefs Briefs were filed by counsel for the Respondent and for the Union Upon the entire record in this case, including the court's opinion and decree, the Board's Decision and Order and subsequent order reopening the record, the record in Case 23-RC-2646, the evidence adduced at the hearing before me, and all the briefs submitted by the parties, and upon my observation of each of the witnesses as they appeared before me , I make the following- FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE ISSUES INVOLVED As noted above, the remand ordered by the court of appeals and the Board involves the merits of the Respondent's objections to conduct affecting the results of the election conducted by the Board on April 7, 1966. The objections relate to the contents of a handbill distributed by the Union on April 5, 1966, alleged by the Respondent to contain material misrepresentations which the Respondent did not have sufficient time to effectively answer and to alleged threats made by the Union and others to employees which, according to Respondent, created an atmosphere of fear surrounding the election Because the case arises in the context of a refusal-to-bargain proceeding, if the objections have merit, the Respondent, which admittedly refused to bargain, did not violate Section 8(a)(5) of the Act because the certification of the Union was improper On the other hand, if the objections do not have merit, the Respondent's refusal to bargain constitutes a violation of Section 8(a)(5) and (1) of the Act. Thus, the issues are- (A) Did the Union's handbill circulated 2 days before the Board-conducted election contain such misrepresentations with regard to wages and fringe benefits obtained by the Union in other comparable plants as would warrant setting aside the election? (B) Did the Union, or others, threaten unit employees prior to the election, and if so, did such threats create an atmosphere of fear which prevented a free and untrammeled choice in the election? (C) Did the Respondent unlawfully refuse to bargain with the Union in violation of Section 8(a)(5) of the Act? II. THE UNFAIR LABOR PRACTICES A The Misrepresentations by the Union To comprehend fully the significance of the handbill of which the Respondent complains, it is necessary that some of the history of the organizing attempts which the Union undertook at the Respondent's plant be related. The campaign by the Union to organize the Respondent's employees began sometime in the spring of 1965 This campaign resulted in a Board-conducted election, held on May 27, 1965, which the Union lost. Preceding the Union's campaign at the Respondent's plant, the Union had organized the employees at Respondent's competitor, Allied Chain Link Fence Company, herein called Allied. The Union won the election at Allied and at the time of Union's 1965 campaign at the Respondent's plant, the Union and Allied were bargaining. However, this bargaining failed to produce agreement and Allied employees went out on strike. Evidently, the fact that Allied employees went out on strike became very important to the Respondent's employees and had a significant impact upon the 1965 election at the Respondent's plant which the Union lost ' '163 NLRB 583 '403 F 2d 889 'All of the foregoing from the uncontroverted testimony of Marion Faulkner , personnel manager of the Respondent during the critical times herein 29 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the 1966 campaign which culminated in the election conducted by the Board on April 7, the strike at Allied had been settled and it was reported that the Union had obtained a very favorable contract for the employees of Allied whom it represented During that period of time, a number of the employees of the Respondent approached Marion Faulkner, Respondent's personnel director, and asked him questions about the Allied contract, whether Faulkner knew if the employees at Allied had received a 50-cent-an-hour wage increase, if they had obtained 3 weeks' paid vacation, and the general question of whether Faulkner knew what the package was at Allied Thus, the Union's contract with Allied became one of the important issues during the Union's campaign prior to the 1966 election, and both sides campaigned with regard thereto As the election date drew near the campaign, as in many instances of union organizing activity, became very intent, acidulous, and acrimonious During this preelection period, the Respondent's theme, among other things, was a constant questioning in its handbills as to the whereabouts of the Allied contract and what were the details thereof In effect, the Respondent wanted to know what the Union had produced for the employees of Allied and wanted to know why the Union did not publish what it had obtained at Allied In other words, it asked the Union to "put up or shut up " Finally, coming down to the end of the campaign, this questioning of the Union's motives and the Union's accomplishments resulted in the issuance by the Respondent of several handbills or letters circulated within a week or two before the election Thus, on March 31, a Respondent letter was devoted almost entirely to the "Allied contract " In that letter the Respondent wanted to know "where is the Allied contract?" Then again after reciting the history of the labor problems at Allied, the letter read" . We understand that a contract has now been signed BUT WHERE IS ITS" Then, in that same letter, the Respondent asked the employees to obtain copies of the Allied contract and compare it to the benefits they were receiving currently at the Respondent's plant The letter ended up with telling the employees not to make their choice in the dark, to make the Union show how little the strike brought the employees at Allied, and asking the employees whether they needed such a Union It requested the employees to vote "NO" at the election On April 2, a similar letter was circulated by the Respondent That letter contains the following paragraph Look at that blue letter again Is the union interested in building or destroying - adding to or taking apart9 Then think of the Allied and Proler employees who bought the union line WHERE IS THAT ALLIED CONTRACT? In a questionnaire attached to a letter dated April 4, the Respondent asked, "Do you know what is in the Allied contract? If the answer to any of these questions is NO, vote NO next Thursday " On April 5, 1966, the Union replied to the Respondent's March 29 and April 2 letters with a handbill which is the subject of the Respondent's objections herein ' The Union's April 5 handbill finally set forth what purported to be the salient features of the contract between the Union and Allied Among these features were that under the contract the employees at Allied This handbill and its attachment are attached and marked "Appendix B "[Appendix B omitted from publication 1 received gains of approximately 30 percent over what they had been receiving before voting in the Union Wages were increased 42 cents per hour according to the handbill In addition, another benefit, according to the handbill, was that the Christmas bonus had been tied down in writing in the contract In an attachment to the handbill the Union set forth the names of a number of companies located throughout the country which were in comparable businesses to the Respondent and which were organized by the Union Then, were set forth a few examples of wages paid in the said unionized plants Among these wages was one paid to a classification called in the handbill "general worker" at a rate of $2 43 per hour The foregoing three items are the basis for the Respondent's objections and complaints The claim in the handbill that a 42-cent-per-hour increase was given to the Allied employees the Respondent contends is inaccurate, misleading, and a misrepresentation in that the contract actually called for the 42-cent-per-hour increase to be paid in steps over a period of 3 years and not immediately With regard to the Christmas bonus the Respondent contends that the bonus was not tied down in writing in the contract and, in fact, was not tied down at all With regard to the rate wage of $2 43 per hour for a general worker, the Respondent claims that none of the plants named in the handbill at which the Union claimed it obtained benefits for its represented employees had a classification of general worker which was paid the wage rate of $2.43 an hour The Respondent claims that it had insufficient time in which to answer these alleged falsehoods and misrepresentations, but, in fact, although at the time the Respondent did not have, nor had its officers ever seen, a copy of the Allied contract, it nevertheless managed to circulate, on April 6, a handbill which, at least, was somewhat successful in answering the Union's claims This handbill or letter stated in part that the increases were spread over a number of years and were not effective immediately The handbill of April 6 then went on to compare various working conditions and fringe benefits of the employees at the Respondent's plant as compared with what the Union had alleged in its handbill of April 5 and further argued and graphically showed that, according to Respondent at least, the employees at the Respondent plant were still better off than the employees at Allied even with the gains that they procurred through the Union It should be noted, however, that at the time the April 6 handbill by the Respondent was written and distributed, the Respondent still had no direct knowledge of the terms and conditions of the Union-Allied contract and had, in fact, been unable to procure a copy of the said contract up to that time ' However, at the hearing herein the Allied contract was introduced into evidence A reading of this contract reveals that the pay increase of 42 cents was to be received by the Allied employees in three annual steps of 14 cents each step Each step was to be a year apart so that the raise of 42 cents was actually spread over a period of 3 years. As noted above, the April 5 handbill of the Union, of which the Respondent complained, merely stated flatly that the employees had received a 42-cent wage increase at Allied. With regard to the statement that the Christmas bonus had been tied down in writing in the contract, a reading of the contract reveals that the Christmas bonus is not even 'From the uncontradicted testimony of Faulkner SMITH INDUSTRIES 297 mentioned therein With regard to the 42-cent-per-hour increase as set forth in the April 5 handbill, former Union Representative Charles Elder admitted in testifying that when he wrote the handbill he did not know how the 42 cents was to be allocated In testifying with regard to the classification of "general worker" represented as receiving up to $2 43 per hour, Elder stated that he received these figures from the research department of the International Union. The research department sent to Elder the contracts for five firms located throughout the country. The nearest classification that Elder could find on examination by counsel for the Respondent was one called "general helper" and not "general worker" whose rate was $2 43 per hour This was in the Los Angeles Galvanizing Company contract. Asked how he could have decided that a "general helper" in the Los Angeles firm contract was the same as a "general worker" at the Respondent's plant, Elder was at a loss and could not explain how or why he had changed the name of general helper to general worker except to admit that he had changed the name to fit a classification of a number of the employees at the Respondent's plant However Elder refused to admit that this was a direct attempt at misrepresentation. In connection therewith, it should be noted that with regard to other classifications and wages claimed by the Union in its handbill of April 5, there were classifications with the salaries claimed in one of the contracts used by Elder in order to make up the statement in the handbill. Accordingly, the reported amounts and the classifications were accurate except for that of "general helper" transposed to "general worker." Elder further admitted in testifying that with regard to the claim that the Christmas bonus had been tied down in writing, he received this information from Union Business Representative C T Ray Ray testified that he told Elder that other matters such as wage increases and other fringe benefits have been incorporated in the Allied contract and that the bonus had been fixed also However Ray stated that he did not tell Elder that the bonus had been fixed in writing. Thus, if the testimony of these two witnesses is credited to the extent above, then it can clearly be seen how a telephone conversation could have left with Elder an incorrect impression that the bonus had been tied down in writing However, Ray further testified that he had obtained as negotiator at Allied a promise from the Allied negotiators to the effect that if the Company could afford it, it would pay the Christmas bonus as the Company had done in prior years and that, therefore, verbal agreement as to the bonuses existed On the other hand, both Robert Bambace, an attorney who represented Allied at the negotiations with the Union, and George B. Drummond, who as assistant general manager had been a negotiator for Allied during the period of the negotiations with the Union, both testified that there had been no promise of bonuses in the future at Allied because the Union had given up the idea of a bonus in exchange for an additional 2-cent pay increase According to Bambace and Drummond, Allied, up to that point, had been willing to give a 40-cent wage increase and Ray had stated that he did not care about the Christmas bonus, that the Union would give that up if Allied would increase the wages by an additional 2 cents This the Allied negotiators agreed to and the subject of the bonus was then dropped Although Ray additionally testified that as proof of the fact that an oral arrangement had been made with regard to the bonus, Allied had paid a bonus to employees in the year 1966, after the contract had been signed. However, both Drummond and Ronald L Seifried, an accountant for Allied, testified that no bonus had been paid at Allied since the contract was entered into to any member of the unit represented by the Union From my observation of these witnesses as they appeared before me and because both Bambace and Drummond are no longer in any way connected with Allied and have no interests therein, and can, therefore, be considered to be disinterested witnesses, I credit their version of the negotiations between Allied and the Union and find as a fact that no arrangement was made either oral or written for bonuses to be paid to the Allied employees after the contract of 1965 was entered into B The Alleged Atmosphere of Threats It would seem that a number of employees were told by their fellow employees that if they did not join, assist, or vote for the Union in the election they might lose their jobs. Thus, employee Murphy Smith, credibly testified, without contradiction, that about 2 weeks before the election fellow employee Lee Bostick asked Smith to sign a union card Bostick told Smith that a majority had already signed and that if Smith did not sign he would lose his job. About the same time, according to Smith, an unknown and unidentified man came to Smith's house and asked Smith to sign a card Smith refused and the man told him that if he did not sign a card he would stand a chance of losing his job. Smith on cross-examination admitted he was not frightened and he further admitted that neither his conversation with Bostick nor with the unidentified man induced him to sign a card or kept him from voting in the election He did not vote in the election but he did not fail to vote because of any threats against him He knew he could vote against the Union in the election if he so chose. Employee Ivory Clark testified, without contradiction, that about 3 weeks before the election he had a conversation with fellow employee, Charles Sanders. Sanders told Clark that the latter would not be working for the Respondent if he did not help get the Union in. Clark was not frightened and told Sanders that the latter was not running anything and that he was not ready to sign a card. He also cursed at Sanders. Clark admitted that he had a right to do anything he wanted to do without Sanders telling him what to do. As far as he could see nobody was really afraid to speak out. On cross-examination Clark further admitted he voted in the election and voted the way he wanted to and nothing that Sanders said had any effect on his vote. Nor did any of his fellow employees say that their vote in the election was affected because of fear. Paul R. Steffenhagan, another employee, had separate conversations about a week before the election with employees Durrell Derbigney and Sammy Williams. The Derbigney conversation took place about a week before the election in the garage of the plant Derbigney asked Steffenhagan whether the latter was going to vote for the Union and Steffenhagan refused to give him a yes or no answer. Then Derbigney told Steffenhagan that the latter should vote for the Union because if he did not in the long run he would be sorry When Steffenhagan asked Derbigney what the latter meant by that remark, Derbigney answered that Steffenhagan could be fired within 90 days after the Union had gotten in. About a week and a half before the election Steffenhagan had a 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation with fellow employee Sammy Williams This took place also in the garage Williams asked Steffenhagan if the latter had heard anything to the effect that if they did not join the Union they would be fired within 90 days and Steffenhagan answered in the affirmative Williams said that he was told the same thing and he wanted to know if there was any truth behind it Steffenhagan answered that he did not know and that Williams would have to go beyond Steffenhagan to check the truth of the matter Steffenhagan admits that he talked to Vice President Kendall about the matter and Kendall told him not to worry about losing his job in 90 days after the Union came in Steffenhagan admitted that he believed Mr Kendall and did not believe Mr Derbigney He further admitted that he voted in the election the way he wanted to and that he thought Derbigney was just puffing. Steffenhagan also admitted that he was aware and knew of the effect of the Texas right-to-work law and the meaning of that law He further admitted that he was not afraid to vote in the election in any way that he wanted to and he stated that he did not know any other employees who did not vote the way they wanted to About 2 weeks before the election employee Joseph M Beke had a conversation with employee Robert Bostick There were three other employees present whom Beke could not name Bostick told Beke to join the Union and Beke said, "Hell, no " Then Bostick said that "We will fix you " Beke testified that he did not know how to take Bostick's remark but he was a little worried about it and he told his supervisor, a Mr. Welch, about it Welch said that they would just have to wait and see what happened Welch told him not to be afraid Beke then took the precaution to protect himself by putting a gun in the glove compartment of his car The gun was not loaded and had no shells in it On cross-examination Beke admitted that he voted the way he wanted to in the election and that what Bostick said did not have any influence on him on the way he voted He admitted that he did not feel afraid to speak out about how he felt about the Union although he did not do so He further admitted that after Bostick said he was going to fix him, Beke paid no more attention to the remark Employee Shedrick Little also testified as to remarks made to him by an employee whom he identified as "Doc Squale" and another employee by the name of "Derail " Although Little testified to certain incidents concerning these two individuals, I cannot and do not credit any of Little's testimony inasmuch as he made several statements, prior to the hearing, to the General Counsel with regard to these threats and then retracted them twice in letters to the General Counsel asking that his statements be ignored Accordingly, I do not credit any of Little's testimony and do not rely on it to any extent Employee Harry Swierkowski overheard a conversation a few weeks before the election between employee I C Clark and Charles Sanders. Sanders asked Clark if the latter wanted to sign a union card and when Clark answered in the negative Sanders told him that when the Union came in Clark would not have a job Sweirkowski testified that Clark still refused to sign a card, even after this remark by Sanders Swierkowski admitted on cross-examination that he knew that Sanders could not fire anybody and further testified that he knew the content and import of the Texas right-to-work law Swierkowski admitted further that he thought that he could work at the Respondent's establishment without belonging to the Union regardless of what Mr Sanders or anybody else said Further, Swierkowski voted in the election and this conversation had nothing to do with the way in which he voted Employee Sammy Williams, during the campaign, was asked by employee Jim English to sign a card English told Williams that he would better himself by signing a card and the quicker the Union came in the more money they were going to make However, Williams then admitted that this was after the election and not before However, both before and after the election employee Durrell Derbigney spoke to Williams Derbigney wanted Williams to sign a union card and he said the quicker he signed the card the better it would be Derbigney said that if Williams did not sign a card that Williams would not go any further, meaning, probably, that he would not receive any further promotions On cross-examination, however, Williams admitted that he knew about the Texas right-to-work law and that he did not have to belong to a union to work in Texas Williams admitted that he voted in the election the way he wanted to despite the conversations with other employees. In sum, then, the testimony of the foregoing employees showed that some of them were told that if they did not join or assist the Union they would lose or possibly lose their jobs However each of these employees in turn admitted that they knew they could not be fired if they did not join the Union and they were aware of the Texas right-to-work law and/or that they voted in the election the way they wanted to and were not influenced in any way by the so-called threats of losing their jobs However, in the case of Elijah Fieast, the results of his speaking out against the Union amounted to more than mere threats Fieast's testimony, supported by testimony of Melvin Williams, reveals that Fieast made a speech at a safety meeting in favor of the Respondent and against the Union several weeks before the election Thereafter Fieast was subjected to threats by fellow employees with regard to his physical safety Although Fieast was never physically assualted, his property was either destroyed or damaged by persons unknown Thus, Fieast stated that thermos bottles were taken from his locker and smashed and other personal property was destroyed But even more serious was the fact that Fieast's pickup truck was damaged on two separate occasions. On the first occasion, Fieast came out to the parking lot of the plant and could not start his car. When he looked under the hood he found that someone had removed and smashed an electrical component and he had to buy a new one in order to get the car started Even more serious was the fact that one day Fieast came out to the parking lot and found that his truck had been painted with threatening and obscene words to such an extent that Fieast was unable to remove these threatening and obscene words It was necessary for him to have his truck repainted 6 However, despite this damage to Fieast's property and despite threats made to him by employees with regard to his physical well-being, Fieast testified that he had no fear of speaking out and that he voted in the election exactly the way he wanted to. He admitted that the threats and the damage to his property did not in any way alter his vote in the election `I would not credit employee Melvin Williams' testimony with regard to threats made to Fieast if Williams' testimony stood alone , because of the fact that Williams' prehearing affidavits made no mention of these threats to Fieast However, because I was impressed with the testimony of Fieast which went uncontradicted, I credit that part of Melvin Williams' testimony which is supported by the testimony of Fieast SMITH INDUSTRIES Paul D Lewis, a foreman for the past 2 years, who was a rank-and-file employee at the time of the election on April 7, 1966, testified that he was an ardent union supporter and gave out approximately 15 cards during the organizing campaign He further testified that he attended approximately 15 to 20 union meetings before the election and at one of those meetings Charles Elder, who presided at the meetings and who was a union representative for the Steelworkers, stated that if the Union would win the election and an employee had not become a member within 30 days, that the employee would not receive the benefits negotiated in the union contract and would possibly lose his job Lewis places this statement at approximately a month before the election. According to Lewis there were approximately 50 to 100 people at that meeting According to Lewis, at another meeting held approximately 3 weeks before the election, Elder said that if the employees went on strike and those walking in the picket line tried to stop someone from coming to work, the Union would back them up Lewis admitted that at the time his reaction to Elder's statement was negative. With regard to Elder's remarks at the first meeting, Lewis testified that he interpreted that to mean that this was to be a union job, that the only way to keep the job was to become a union member However, under pressure of cross-examination Lewis admitted that he knew about the Texas right-to-work law and knew that no one had to belong to a union to work in Texas He knew that nobody could lose his job for not joining the Union He admitted that he knew this from company pamphlets that were passed out during the campaign Furthermore Lewis voted in the election and he admitted that the remark made by Elder did not affect the way he cast his ballot in the election, he voted the way he wanted to Lewis further admitted that physical violence was not in his mind when he was listening to Elder tell the assembled employees that the Union would back them up if they did not permit anybody to cross the picket line He admitted that to him this meant that the Union would see to it that no one lost his job because of walking the picket line. In fact, Lewis admitted that Elder made it clear that it was against the law to strike anyone on the picket line Elder denied that he ever stated to any of the employees in the unit at any organizing meeting or at any other time that an employee who did not join the Union might lose his job He denied that he stated at any meeting that employees who did not become members of the Union within 30 days would not get the benefits and would possibly lose their jobs Elder explained that the only 30-day period which he mentioned to the employees assembled at the union meeting was that the Union had waived initiation fee for the first 30 days and that those employees who joined thereafter would not get the benefit of the free initiation fees. He further stated that so far as backing up any employees on the picket line as concerned, the only thing he might have said was that the Union, in its customary way, would try to provide for those employees who lost their earnings due to strikes and picketing. Elder was subjected to very lengthy and thorough cross-examination I have carefully considered his testimony on both direct and cross-examination and find that nothing that he said on cross-examination seriously contradicted his testimony on direct Moreover, in connection with the alleged misrepresentations, Elder readily admitted that the statement with regard to the Christmas bonus was untrue but explained his reasons for 299 placing such statement in the April 5 handbill. Accordingly, and from my observation of the witness, I credit Elder's testimony and find that he did not in any way threaten any employee at any union meeting with regard to loss of job if the employees did not join the Union within 30 days. It should be noted in connection with the foregoing threats that the Respondent issued among its letters to the employees, in the preelection period, a number of notices to the effect that the Union would not know the manner in which an employee voted. For instance, in the letter to the employees dated March 26, 1966, the Respondent stated as follows Don't be pressured by the fact that people may come by your home Remember, you vote in secret and no one - union or company - will know how you voted. Don't let anyone tell you otherwise Again on April 5, 1966, 2 days before the election, in a letter to its employees the Respondent stated You can vote NO whether you signed a card or not You vote in secret and no one-company or union-will know what you did unless you tell them. C Discussion and Concluding Findings The Board's rule with regard to misrepresentation has been set forth as follows. We believe that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. However, the mere fact that a message is inartistically or vaguely worded and subject to different interpretations will not suffice to establish such misrepresentation as will lead us to set the election aside Such ambiguities, like extravagant promises, derogatory statements about the other party, and minor distortion of some facts, frequently occur in communication between persons. But even where a misrepresentation is shown to have been substantial, the Board may still refuse to set aside the election if it finds upon consideration of all the circumstances that the statement would not be likely to have had a real impact on the election. For example, the misrepresentation might have occurred in connection with an unimportant matter so that it could only have had a de minimis effect Or, it could have been so extreme as to put the employees on notice of its lack of truth under the particular circumstances so that they could not reasonably have relied on the assertion. Or, the Board may find that the employees possessed independent knowledge with which to evaluate the statements.' With the foregoing as a guide, I examine now the items in the Union's handbill of April 5 which the Respondent claims constituted such misrepresentations as would warrant setting aside the election. I consider first the representation made in that handbill to the effect that the employees at Allied received a 42-cent-per-hour wage increase. The Respondent does not dispute that the Allied contract did provide for a 42-cent increase in wage rates but maintains that because this increase was to be given over a 3-year period the Union misrepresented by not stating that fact. 'Hollywood Ceramics Company. Inc. 140 NLRB 221, 224 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The short answer to the Respondent's contention is that the Board in considering a case almost similar to one at bar, where the union failed to add that a wage increase described in a preelection leaflet would be effective over a 3-year period, held that the addition of this phrase would have made the statements unmistakably clear but that the omission thereof was scarcely enough in itself to justify an inference that the Union's failure to add this phrase was deliberately intended to mislead the employees. The Board held that the characterization of a three-step wage increase in terms of a total package is now a relatively common method of announcing such benefits in newspapers, trade publications, and the like and that therefore, at worst, this was an exaggeration of fact subject to different interpretations and as such would not constitute a sufficient basis for setting aside an election ' As heretofore set forth, a reading of the record shows that the contracts between the Petitioner and the employers named in the handbill of April 5 contain the classifications shown therein, with one exception, that of "general worker," which is listed in one contract, that of Los Angeles Galvanizing Company where the classification is listed as "general helper" but pays $2 43 an hour similar to the classification of "general worker" listed in the handbill. Elder testified that the transposition of the word "helper" to "worker" was not readily explicable but, he testified, that it was not a deliberate misrepresentation While the classification of general worker may be numerous in Respondent's plant, I do not find that this was campaign trickery which could reasonably be expected to have a significant impact on the election. I do not believe this item is sufficiently misleading to warrant setting the election aside. There remains for consideration one item of alleged misrepresentation which, perhaps, is the most serious of all. This is the allegation in the April 5 handbill to the effect that the Christmas bonus had been tied down in writing As heretofore established, this representation is false. It is unnecessary, under the rule of the Hollywood Ceramics Company, Inc , case' to determine whether the misrepresentation aforesaid was deliberate. The test would seem to be whether it involved a substantial departure from the truth at a time which prevented the Respondent from making an effective reply so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. I note that the Christmas bonus claim, although false, was only one out of many items set forth in the handbill which were truthful. Far more significant were the other items which the Union alleged it had obtained for the employees at Allied and which claims were truthful Inasmuch as the claim of the Christmas bonus being tied down in writing is only one of a number of claims made by the Union, most of which could reasonably be said to have had more impact than the claim of the Christmas bonus, I conclude that the Union's representation as to the Christmas bonus was not one which was sufficiently misleading or of sufficient impact so as to interfere with the exercise of a free choice by the employees who voted in the election. In addition to all of the foregoing, although it is true that the Respondent was unable to obtain a copy of the contract between Allied and the Union before the election on April 7, 1966, nevertheless on April 6, the day following the distribution of the union handbill in 'See Russell-Newman Manufacturing Co, Inc, 158 NLRB 1260, 1264 '140 NLRB 221, 224 question, the Respondent did make a reply While this reply did not directly contravene the allegation with regard to the tying down of the Christmas bonus, I nevertheless find that it was of sufficient import to have overcome much of the significance and of the impact on the voters of the Union's April 5 handbill. With respect to the threats and the alleged atmosphere of fear, a review of the testimony of each employee who was threatened shows that none of them, under the subjective tests recommended by the court of appeals in this case, felt threatened or felt that they could not vote the way they chose in the election. Each of these employees was systematically asked on cross-examination if each voted the way he wanted to in the election and the answer was uniformly in the affirmative In addition, one employee, Shedrick Little, made and withdrew his statement several times during the investigatory period so that his testimony with regard to threats I find to be completely unreliable. Additionally, a number of the employees admitted that they were aware of the Texas right-to-work law and knew that the threats made by fellow employees had no force or vitality Accordingly, I find and conclude that, for the most part, the threats amounted to nothing more than statements made by rank-and-file employees to other rank-and-file employees in the hurly-burly that normally abounds during the preelection period in an industrial plant 1, therefore, give no weight to the testimony with regard to these threats There is, however, the matter of the actual physical damage done to the property of Elijah Fieast. However, in the case of Fieast, even he, after suffering property loss and after being threatened with physical violence, if his testimony is to be accepted, stated that he voted in the election the way he chose and was not fearful of his position as an employee in the plant. He further stated that he did not worry about speaking out with regard to his favoring the Respondent in the election despite the threats and the damage to his property. Under these circumstances, and given the subjective test recommended by the court of appeals, I find that Fieast did not suffer from any fear with regard to the manner in which he voted in the election The most that can be said with regard to the Fieast incidents is that other employees could possibly have become fearful because of what happened to Fieast However, the record is devoid of any showing that any other employees had been influenced by these incidents Additionally, I note that the number of employees who were threatened are an insubstantial number (less than a dozen out of approximately 225) compared to the total number of employees in the plant. Under these circumstances, I cannot find that an atmosphere of fear prevailed throughout the plant sufficient to have had an impact upon the results of the election. Accordingly, I find and conclude that although some employees were threatened to the effect that if they did not join the Union they might lose their jobs, and one employee suffered some physical damage to his property, these threats and this physical damage had insufficient impact upon the election to warrant setting the election aside. In coming to this conclusion I note also that the Respondent's handbills circulated before the election emphasized the fact that the elections were to be by secret ballot and that regardless of what choice the employees may have made with regard to signing cards, they could vote in secret in whatever manner they desired and that no SMITH INDUSTRIES 301 one could affect their position with the Company because of the manner in which they voted.10 D The Refusal To Bargain The Respondent admits, and I find, that the Respondent refused to bargain with the Union herein in order to test the validity of the Union's certification as representative of Respondent's employees in the appropriate unit I have heretofore found that there is no merit in the Respondent's objections to the election and therefore find that the certification of the Union by the Board was proper in the first instance Accordingly, I find that no valid defense has been raised by the Respondent to the complaint alleging that it unlawfully refused to honor the Union's certificate by recognizing and bargaining collectively with it pursuant to its request I therefore find that on and since September 12, 1966, the date of the Union's request to bargain, the Respondent has violated Section 8(a)(5) and (1) of the Act. III THE LFI ECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section If, above, occurring in connection with the operations of the Respondent have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. IV THL REMEDY Having found the Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the '0i have taken into consideration the fact that in the case of Smith Industries , Inc , 164 NLRB No 77, the Trial Examiner did not credit the testimony of former employee Di Pasquale denying that Di Pasquale had made threats to employees that they would lose their jobs if they did not join the Union However , the only employee who testified in the instant proceeding as to threats by Di Pasquale was Shedrick Little whose testimony , for reasons heretofore set forth , I have not accepted policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit herein It will therefore be recommended that the Respondent bargain collectively upon request with the Union as the exclusive bargaining representative of these employees and, if an understanding is reached, embody such understanding in a signed agreement Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following. CONCLUSIONS OF LAW 1. Smith Industries, Inc , is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3. On April 7, 1966, and at all times thereafter, the Union was and now is the representative of a majority of Respondent's employees for the purposes of collective bargaining within the meaning of Section 9(a) of the Act in the appropriate unit described in the following paragraph 4. All production and maintenance employees, employed by the Respondent at its Houston, Texas, plant, composed of the Tysco Division, Fastener Division, Galvanizing Division, and Special Coating Division, excluding all office clerical employees, guards, watchmen 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 5 By refusing on and after September 12, 1966, to bargain collectively with the Union as the exclusive representative of all its employees in the above-described unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 6. The aforesaid- unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]