Owens-Corning Fiberglas Corp.

OWENS-CORNING FIBERGLAS CORP Owens-Corning Fiberglas Corporation and Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, Petitioner. Case I I-RC-2564 October 20, 1969 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS Pursuant to a Decision, Order, and Direction of New Runoff Election issued on September 19, 1968, as amended on September 23 and October 11, 1968, a second runoff election was conducted on November 12 and 13, 1968, under the direction and supervision of the Regional Director for Region II, to determine whether or not certain employees of the Employer desired to be represented for purposes of collective bargaining by Teamsters Local 509, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of' America, the Intervenor, and hereinafter referred to as the Union.' Upon the conclusion of said election, a tally of ballots was furnished the parties in accordance with the Board's Rules and Regulations The tally showed that there were approximately 1846 eligible voters and that 1784 ballots were cast, of which 938 were for the Union, 773 were against the Union, 67 were challenged, and 6 were void. On November 20, 1968, the Employer filed timely objections to conduct affecting the results of the second runoff' election. The Regional Director caused an investigation of the issues raised by the objections to be made and, thereafter, on January 24, 1969, issued and served on the parties his Report on Objections. In his Report, the Regional Director recommended to the Board that the Employer's objections be overruled, and that a certification of representative be issued to the Union. Thereafter, on February 17, 1969, the Employer filed timely exceptions to the Regional Director's Report, requesting that the second runoff election be set aside, and another runoff election be held; or in the alternative, that a hearing be held to permit the Employer to be heard with respect to its exceptions. On March 14, 1969, the Board issued an Order Directing Hearing, directing that evidence be taken at said hearing with respect to issues raised by the Employer's exceptions. Pursuant thereto, a hearing was held on April 16 and 17, 1969, before a duly designated Hearing Officer. Upon a consideration of the evidence presented, the Hearing Officer issued and served on 'Petitioner, one of three choices on the ballot in the first election conducted on August 15 and i6, 1967, received the lowest number of votes cast in said election and was therefore eliminated from further proceedings herein 219 the parties his Report on June 10, 1969, recommending to the Board that the Employer's objections be overruled. Thereafter, on July 7, 1969, the Employer filed timely exceptions to the Hearing Officer's Report and a brief in support thereof The Union filed a brief in support of the Hearing Officer's report. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error They are hereby affirmed. Upon the entire record in this case, the Board finds. I The Employer is engaged in commerce within the meaning of the Act. 2 The Union is a labor organization claiming to represent certain employees of the Employer 3 A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(l) and 2(6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Employer's Aiken, South Carolina, plant, but excluding all office clerical employees, laboratory technicians, professional employees, guards and supervisors as defined in the Act. 5 The Employer excepts to the Hearing Officer's Report, arguing that the distribution of Union handbills on November 8 and 10, 1968,2 and the threats of violence and reprisals interfered with the holding of a free election and that, therefore, the election should be set aside.' The specific objections, and the facts with respect thereto, are as follows The November 8 handbill The pertinent part of the Union's November 8 handbill on which the Employer relies is. If you lose this election on November 12 and 13, you go backward You will be re-evaluated out of your wage gains or through some other subterfuge, transferred around, downgraded, or outright fired. If you win this election, you will keep what you have already gained and go forward with more to be negotiated in a Teamster contract, thereby guaranteeing you gains. [Emphasis in original] 'Unless otherwise noted, all dates hereinafter refer to 1968 'The Employer does not press two of the five objections which it originally filed 179 NLRB No. 39 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer's assertion to the contrary, the quoted language is not a promise of benefit or threat which warrants setting aside the election. Rather, it is partisan "puffing" of the type frequently made in the kind of hard fought election campaign present here. Such "puffing" is easily recognized by the employees to be dependent upon contingencies beyond the Union's control and does not carry with it the same degree of finality as if uttered by an employer who has it within his power to implement promises or beneiits.° Accordingly, we find that the distribution of the November 8 handbill did not interfere with the conduct of the election The November 10 handbill The Employer also excepts to the Hearing Officer's refusal to find merit in its second objection, which alleges that a November 10 handbill contained material misrepresentations and was timed by the Union to prevent a truthful reply by the Employer prior to the November 12 and 13 election. The record discloses the following background facts regarding the November 10 handbill and the statements contained therein During the course of the prior two elections, the Employer and the Union repeatedly put in issue the rates of pay paid to the employees represented by the Teamsters at one of the Employer's competitors The issue centered on whether the rates of pay at the Johns-Manville fiberglas plants in Waterville, Ohio, were higher or lower than those paid by the Employer at its Aiken plant. This issue was raised anew in the election campaign herein when, on or about October 30, an antiunion employee committee, the In-Plant Committee opposed to Teamsters, distributed a leaflet to the employees which advised , inter alia, They [the Union] also failed to tell you that the income per person in our Plant is one of the highest in the Southeast. It is even higher than the Fiberglas Plant in Waterville, Ohio, which the Teamsters represent It is a known fact that the cost of living is much higher in Ohio than it is here in Aiken, yet we make more money In response to the assertions made in the leaflet, the Union on November 5, 7 days prior to the commencement of the 2-day election, distributed a handbill which stated that the Teamsters Johns-Manville Local 20 had negotiated a new contract for the Waterville employees and that the package increase for production people, with incentive, will average out to approximately $1.00 per hour. Teamsters Local 20 also negotiated with this same Company an increase in disability benefits from $50 00 per week to $60 00 per week On November 10, a prounion employee committee, the "In-Plant Organizing Committee Teamsters Local Union No 509," distributed a reprint from the October issue of a Teamster magazine The reprint, entitled "Local 20 Writes Some Labor History at Johns-Manville," described the terms and circumstances surrounding the signing of the new Johns-Manville contract That part of the reprint to which the Employer objects reads as follows Estimates of average earnings, including incentive pay on the base rate, will increase by at least $1 00 an hour during the life of the new contract. In addition, the [bargaining] committee was able to raise the weekly disability allowance by $10 00 a week. . . . Since becoming Teamsters, just a little over two years ago, Johns-Manville employees have achieved increases amounting to almost $1.30 per hour. They have achieved a fully paid hospitalization program and fully paid pension program They have achieved improved vacations, shift differentials and holiday pay. The Employer asserts that the November 10 handbill mistakenly made it appear that Local 20 was responsible for increased disability and pension benefits, when in fact these benefits were not negotiated with Local 20 but rather, were instituted unilaterally by Johns-Manville. This assertion ignores the undisputed fact, however, that both of these items were discussed during the Johns-Manville negotiations and that the benefits followed these discussions Thus, Paul Steinberg, a Local 20 official, testified that Local 20 dropped its demand for a Teamster pension plan in response to Johns-Manville's promise to institute the type of noncontributory pension it later implemented. It also appears that the Teamsters reduced their wage demands on assurances by Johns-Manville that the hospitalization and disability programs would be improved during the life of the contract. Moreover, we note that the handbill did not claim that Local 20 had signed a contract containing these two items. Rather, it merely asserted that "the [bargaining] committee was able to raise the weekly disability allowance by $10.00 a week" and that the employees "have achieved" a fully paid pension program. As the employees had in fact "achieved" the increased pension benefit and as the Employer has not rebutted the inference that a casual relationship may have existed between Local 20's bargaining goals and Johns-Manville's subsequent implementation of these bargaining objectives, we find this exception to be without merit. The Employer's claim that Local 20 did not in fact achieve the $1 30 hour increase claimed in the handbill is also without foundation. The handbill states that the Johns-Manville employees achieved the raise "Since becoming Teamsters, just a little over two years ago...." Although the word "since" is somewhat ambiguous,' it is entirely reasonable for a reader of the handbill to conclude that the raises achieved covered the period from 1966, the year 'Cf Ortromz, Inc, 173 NLRB No 57, fn 35 'In refusing to find that this ambiguity constituted a material OWENS-CORNING FIBERGLAS CORP. Local 20 signed its first collective-bargaining agreement with Johns-Manville, to 1972, the termination year of the new contract Accordingly, our inquiry as to the value of the increases question covers the 1966-1972 period. The record indicates, and the Employer apparently does not dispute, that excluding bonuses paid to approximately 90 percent of the Johns-Manville employees, the average hourly wage increase during this period amounted to nearly $1.03 per hour. As the handbill did not claim that the $1 30 per hour increase was exclusive of such bonuses and other contract benefits, there is no reason why such benefits should be excluded in computing the average hourly increases during this period. With regard to those benefits, the record establishes that the contractual incentive program above amounted to at least 25 or 30 percent of an employee's hourly wage. Without considering the value of other contractual benefits - shift differential, extra holiday pay, etc. - it is clear that an incentive of 25 to 30 percent added to the $1.03 average increase is reasonably close to the $1 30-an-hour figure contained in the handbill. We find, therefore, that the $1.30-per-hour figure was not a material misrepresentation. We also find to be without merit the Employer's additional claim that the election should be set aside because the handbill erroneously stated that Local 20 achieved an increase totaling "at least $1.00-an-hour during the life of the new contract." Although conceding that the hourly wage increase during this period amounts to 52 or 53 cents an hour, the Employer does not attempt to put an exact price on the other benefits provided for in the new contract negotiated by Local 20. Instead, it only argues that "No incentive figure mentioned in the record makes the 52 cent or 53 cent approach the $1.00 increase asserted." While admitting that the average wage increase amounted to about 52 cents or 53 cents an hour, the Union contends that the Johns-Manville employees did in fact receive total increases approaching the $1 an hour figure asserted in the handbill. It argues that the 52-cent or 53-cent base figure was augmented by inequity adjustments for certain employee classifications, ranging from one to 30 cents an hour, and by the incentive pay system which in practice amounted to higher incentives than those provided for in the contract. In this connection it asserts that "A comparative analysis done by the Company [Johns-Manville] and the Union during our recent negotiations indicates that production workers are averaging between 130%-132% bonus as compared to a range of 124%-126% under [the former representative]. Ninety-three percent of the misrepresentation , we are adhering to our well established policy that "the mere fact that a message is inartistically or vaguely worded and subject to different interpretations will not suffice to establish such misrepresentation as would lead us to set the election aside " Hollywood Ceramics Company, Inc, 140 NLRB 221, 224 221 production force is covered by the incentive program. The bonus is slightly higher among warehouse and service employees, where the average bonus has been running at 135%." Even if we are to assume, because of the absence of greater specificity that the total value came to less than $1, we nevertheless think it clear, and we find that the handbill containing that representation was not issued at a time which prevented the Employer from making an effective reply. As noted above, the Union on November 5 distributed a handbill which stated, inter alia, "the [Johns-Manville] package increase for production people, with incentive, will average out to approximately $1.00 per hour." This language, almost identical to the disputed language in the November 10 handbill, was in response to the handbill distributed on or about October 30, by the In-Plant Committee opposed to Teamsters, which stated, inter alia , that the Employer's wages were "even higher than the Fiberglas Plant in Waterville, Ohio, which the Teamsters represent." Although conceding that it received copies of the Union's November 5 handbill on the day it was distributed, 7 full days prior to the election, the Employer claims that it did not receive information regarding the Johns-Manville rates until 7 or 8 days after the election George Brelsford, the Employer's Personnel Director at the Aiken plant, stated that he called the Employer's home office in Toledo, Ohio, on November 5 and requested such information to be sent to the Aiken plant as soon as possible. Brelsford's only explanation as to why the requested information arrived after the election was his assertion that the request had to be processed through the legal departments of both the Employer and Johns-Manville in order to avoid any antitrust violations arising from dealing directly with a competitor. When asked whether he again spoke to the Toledo office regarding the request between November 5 and November 10, Brelsford replied "I don't believe so." He later changed his testimony, asserting that the problem "could have been mentioned" in subsequent discussions, but that he "couldn't really pin it down" as to when it was discussed, other than to say that it could not have been either November 6 or 7. Brelsford added that he did not discuss the contents of the November 10 handbill, which he received on that day, with the Toledo office until after November 12 because he didn't have the time and "even if it had been completely false, one hundred percent false, we were tired of telling our people about it at that time...." As the Employer has adduced no specific evidence which would explain the delay in obtaining the requested information with the 7 days immediately preceding the election, we are not persuaded that the Employer was in fact precluded from answering the alleged misrepresentation. That the Employer's evident lack of concern with this matter - as shown by Brelsford's own testimony that he did not press 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for this information and his admission that the Employer was "tired" of discussing the Johns-Manville rates - resulted in obtaining the material after the election, is not, we believe, sufficient ground for setting aside the election. Accordingly, we conclude that the distribution of the November 10 handbill did not interfere with the election, and that the Employer was not precluded from answering. The alleged atmosphere of tension and coercion The Employer's third exception alleges that the Hearing Officer erroneously failed to find that agents and sympathizers of the Union threatened employees with physical and economic harm,' and that such threats interfered with employee free choice and, therefore, destroyed the laboratory conditions of the election. The specific events which the Employer cites in support of its exception are as follows Doris Jackson, an employee and active member of the In-Plant Committee opposed to Teamsters, was accosted at work by two unidentified men, who threatened to take off her "Vote No" badge. In response, Jackson told the men "Well, here I am, if you're man enough to take it, try " With that admonition, the men walked away and the incident ended. While passing out antiunion literature, Jackson was told by Brazell, a Union representative, that she had "better have a good lawyer when this is over because you will need it." As Jackson admitted distributing leaflets calling the Teamsters racketeers and Communists, it is reasonable to infer that Brazell was warning Jackson of possible legal proceedings because of the role she played in distributing the vituperative antiunion literature. Emma Booth, whose campaign activities during the election were limited to wearing a "Vote No" button, was threatened with physical violence on two separate occasions by Carol Ann Floyd. The record indicates, however, that the threats were not related to Booth's antiunion sentiments, but rather, were made because Floyd believed that Booth was talking about her to other employees. That the incidents reflected a clash of personalities, and were not related to how Booth would vote, is evidenced by Booth's own testimony that she subsequently accepted Floyd's apology after the first incident and "tried my best to be friendly with that girl, but she just I don't know. Maybe I wasn't her type, to be a friend." Booth also stated that she had received a phone call during the first day of the election which informed her that she would be met at the front gate after work. Booth told her foreman of the call and left work early by a back entrance. She was unable to identify the caller. 'The Hearing Officer discredited the testimony of employees Gomillian, Johnson , and Young As the Employer has not challenged the Hearing Officer's credibility rulings, we shall not consider the testimony of these employees Linda Cosnahan, a member of the In-Plant Committee opposed to Teamsters, was told by her father that she would have acid thrown in her face if she continued to pass out antiunion leaflets Cosnahan added that another employee refused to hand out antiunion leaflets because she feared that acid would be thrown at her. On cross-examination, Cosnahan stated that her father had warned her that "we would either be hurt, or acid would be thrown in our faces " Cosnahan did not tell anyone of her father's warning during the election campaign and continued to actively campaign against the Union There is no evidence either that any acid was in fact thrown during the course of the campaign or any specific individual had threatened to do so. Further, there is no evidence that rumors concerning acid circulated in the plant prior to the election. Maggie Sheppard, a member of the In-Plant Committee opposed to Teamsters, received anonymous phone calls prior to the election, one of which threatened, "You know it would be pitiful if [your daughter] stepped on her starter and it just went voom." Employees Martha Chambers and Ina Mae Powell received anonymous phone calls to the effect that they should vote for the Union if they were interested in the welfare of their families. Connie McColl was told by employee Wayne that she could get in a lot of trouble and might even lose her job by wearing her "Vote No" badge McColl thereupon "cut [Wayne] off short" and informed him that she would vote for whom she pleased and walked back to her job McColl admitted that she never saw Wayne wear a union badge and the record does not indicate whether he favored or campaigned for either side in the election campaign. McDonald Griffith, while wearing a "Vote No" badge, encountered employee Derrick who said in reference to his badge, "that's a bunch of [bovine excretion]." Griffith then walked away and heard Derrick make a derogatory remark regarding someone's lineage. Griffith testified that he didn't know if the last remark was addressed to him. Aileen Stapleton, who wore a "Vote No" badge, stated that five or six times a day for a period of 2 weeks before the election her phone rang and upon answering it there was no response.' Leroy Simpkins, a member of the In-Plant Committee opposed to Teamsters, encountered employees Robert Stalworth and Jesse Baldwin while visiting a cafe.8 During the course of a conversation among the employees regarding the Union, Baldwin snatched Simpkins' "Vote No" badge off his shirt. Baldwin and Stalworth then went out to the street, "stomped" the badge into the street, and told Simpkins that the incident would 'Aileen Stapleton 's son testified that he received a phone call a week after the election which threatened his mother's life As the call occurred after the election and could not therefore have affected employee free choice, the Hearing Officer properly refused to admit the testimony into evidence 'Baldwin apparently served as an alternative observer during the election OWENS-CORNING FIBERGLAS CORP. recur if Simpkin ever again wore a "Vote No" badge. The incident was witnessed by several other employees and Simpkins related what had transpired to some of the members of the In-Plant Committee opposed to Teamsters. It is significant to note that Stalworth and Baldwin had been drinking "quite a bit" and that there were no fisticuffs during the incident. In considering whether the above-mentioned conduct, occurring in a unit of approximately 1846 employees, warrants setting aside the election, it is necessary to determine whether the conduct was such as to substantially interfere with reasonable standards for a fair election. Although attempting to establish ideal conditions insofar as possible, we acknowledge that actual facts must be considered in light of realistic standards of human conduct, and that "elections must be appraised realistically and practically, and should not be judged against theoretically ideal, but nevertheless artificial, standards."9 In considering standards of human conduct, we are not unmindful of the fact that the "laboratory" for election purposes is usually an industrial plant where vigorous campaigning and discussion normally take place, and where isolated deviations from the above-mentioned standard will sometimes arise, notwithstanding the best directed effort to prevent their occurrence.'" Accordingly, the Board has 'not overturned the results of elections where it was found that irregularities were not of such a nature as would have tended to make a free election improbable. The Board recognizes that some heated statements may be made by individual employees or nonemployees, such as set forth above, and that such conduct should be considered in determining whether employees were precluded from exercising a free choice, notwithstanding the fact that the conduct cannot probatively be attributed to the Employer or the Union." It is necessary, however, to give some weight to whether the conduct complained of was committed by the parties to the proceeding, or by rank and file employees. This is so, because "the conduct of third persons tends to have less effect upon the voters than similar conduct attributable to the employer who has, or the union which seeks, control over the employees' working conditions.-` Bearing these considerations in mind, we shall now turn to a review of the conduct in question. The evidence clearly establishes that, the several threats of physical harm notwithstanding, no physical violence of any kind in fact occurred. The evidence also discloses that no Union official made any unlawful threat or engaged in any improper conduct during the campaign period. For, as noted 'The Liberal Market. Inc, 108 NLRB 1481, 1482 "Morgantown Full Fashioned Hosiery, Co . 107 NLRB 1534, 1538 "At Long, Inc, 173 NLRB No 76 "Orleans Manufacturing Company, 120 NLRB 630, 633. 223 above, Brazell's admonition to employee Jackson that she obtain the services of a good lawyer appears to have been in response to Jackson's distribution of literature which attacked the Teamsters as racketeers or Communists, and was not meant to influence Jackson's vote in the forthcoming election. The Employer's claim that certain employees, because of their membership on the In-Plant Committee for the Teamsters or because of their activities as election observers, acted as agents of the Union in threatening fellow employees is also without merit. The mere fact that employees prominent in the Union's organizing campaign may have engaged in unlawful conduct, without more, is not sufficient to establish agency." Here, there is no evidence that the Union either authorized or condoned any of the questioned conduct The specific question posed, therefore, is whether the conduct complained of by rank and file employees, in the absence of actual physical violence, created a general atmosphere of fear and coercion so as to render improbable employee free choice. We think not. As noted above, this was the third hard fought election campaign conducted over approximately a l 1/2-year period, during which time the approximately 1846 employees witnessed vigorous displays of emotional involvement among individuals of differing views, many of whom were repeating for the second and third time the roles of active partisans. That the employees themselves became accustomed to such partisanship and knew how to react to it is evidenced by the testimony of some of the witnesses at the hearing. Thus, Jackson told the men who had threatened to take off her "Vote No" badge, "Well, here I am, if you're man enough to take it, try." McColl reacted in a similar manner when threatened by Wayne, by "cut[ting] him off short" and informing him that she would vote for whom she pleased. Moreover, it was only natural during such a campaign that remarks of the kind made to Griffith should occur and that, as evidenced by the incidents involving Floyd and Booth, personalities should clash. We also note that the Employer had unlawfully interfered with the first runoff election and engaged in discriminatory acts, including discharges and grants of various employee benefits. See Owens-Corning Fiberglas Corporation, 172 NLRB No. 20, enfd. 407 F.2d 1357 (C.A. 4). In this context, and guided by the above-mentioned general principles, we are of the opinion that the present conduct was isolated and not sufficiently substantial in nature to create a general environment of fear and reprisal such as to render a free choice of representative impossible. Accordingly, as the tally of ballots shows that the Union has received a majority of the valid ballots cast, we shall certify it as the exclusive bargaining "Electric Wheel Company. 120 NLRB 1644 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative for the employees in the appropriate affiliated with International Brotherhood of unit. Teamsters, Chauffeurs, Warehousemen and Helpers of America, and that the said labor organization is CERTIFICATION OF REPRESENTATIVE the exclusive representative of the employees in the unit found appropriate, within the meaning of It is hereby certified that a majority of the valid Section 9(a) of the National Labor Relations Act, votes has been cast for Teamsters Local 509, as amended.