Rolligon Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rolligon Corporation and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Cases 23-CA-7443 and 23-RC-4758 January 12, 1981 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On March 7, 1980, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent, the Charging Party, and the General Counsel filed ex- ceptions and supporting briefs, and Respondent and the Charging Party filed answering briefs. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. In early 1979,1 the Union, Oil, Chemical and Atomic Workers International Union, AFL-CIO, began an organizational drive among employees at the Respondent, Rolligon Corporation. Pursuant to a petition for an election filed by the Union on March 6, an election was held on May 10 in Case 23-RC-4758. A majority of votes was cast in favor of representation by the Union. Respondent filed timely objections to the election. Based on charges filed by the Union in Case 23-CA-7443, the Re- gional Director issued a complaint alleging that Respondent had engaged in conduct violative of Section 8(a)(l) of the Act. Thereafter, the Regional Director issued an order consolidating the repre- sentation and unfair labor practice cases for a hear- ing before an administrative law judge. As set forth fully in the Administrative Law Judge's Decision, on March 21, Respondent's gen- eral manager, Herb Asel, delivered a speech to an assembly of employees. The following is a portion of that speech: We appreciate the loyalty and the courage that many of you have shown. Still others of you may want this Union to represent you. Em- ployees who are unhappy here at Rolligon and who would rather work in a Union shop would do yourselves, your coworkers, your supervisors, and this Company a great service i All dates refer to 1979 unless otherwise indicated. 254 NLRB No. 4 if you would go and find a job where you will be satisfied. Because the Union is never going to run this Company. The Union is never going to be welcome here. We are going to fight this Union with every means the law allows. The Administrative Law Judge found that the above portion of the speech was not couched in threatening terms and did not suggest that employ- ees who wished to be represented by a union should seek employment elsewhere. Accordingly, he concluded it was not violative of Section 8(a)(1) of the Act. We disagree. We have found that an employer's remarks which imply that an union activist is unhappy on the job and therefore should seek work elsewhere violate Section 8(a)(l) of the Act. 2 In the instant case, Respondent told an assembled group of em- ployees that employees who are unhappy and would rather work in a union shop would do Re- spondent a great service by finding a job else- where. We find that such a statement is coercive and threatening and violates Section 8(a)(1) of the Act because it conveys the clear message that sup- port for the Union and continued employment by Respondent are incompatible. On March 20, a hearing was held in Case 23- RC-4744. Prior to the hearing, the Union had sev- eral organizational meetings wherein it requested that as many employees as possible attend the hear- ing. In order to insure that a large number of em- ployees attended the hearing, the Union distributed subpenas to approximately 20 of the 40 unit em- ployees.3 The Administrative Law Judge found, and we agree, that the subpenas were defective be- cause they were not accompanied by witness and mileage fees as required by Section 102.32 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended. See also section 11778, National Labor Relations Board Casehandling Manual (Part Two) Representation Proceedings. 4 2 Intertherm. Inc., 235 NLRB 693, fn. 6 (1978); 726 Seventeenth Inc., /a Sans Souci Restaurant. 235 NLRB 604, 605-606 (1978); and Padre Dodge. 205 NLRB 252 (1973). 3 Lonnie Haynes, the union organizer, testified that a number of em- ployees had expressed fear that Respondent would retaliate against them if they attended the hearing. Haynes claims that the Union subpenaed the employees in order to protect them from reprisals by Respondent. 4We also agree with the Administrative Law Judge that statements signed by a number of the subpenaed employees indicating that they sup- ported the Union were ambiguous and insufficient to constitute an explic- it waiver of the employees' right to witness and mileage fees. We do not agree, however, with the Administrative Law Judge's recommendation that the Board should administratively require the Union to pay the sub- penaed employees witness and mileage fees. The issue of money owed for witness and mileage fees is a matter between the Union and the subpen- aed employees that has not been raised by either of those parties and is not before us in this case. Furthermore, contrary to the Administrative Law Judge's suggestion, there is no administrative procedure whereby we could compel such payment. 22 ROLLIGON CORPORATION When a number of employees presented the sub- penas to Respondent in order to seek time off to attend the hearing, Respondent informed the em- ployees that in Respondent's opinion the subpenas were invalid because they were not accompanied by witness and mileage fees and that the employees were free to dishonor them. However, Respondent also told the employees that they were free to honor the subpenas and that no discipline would be taken if they decided to honor the subpenas. In ad- dition, Respondent assisted the employees in ar- ranging a schedule to permit all interested employ- ees to attend the hearing. The Administrative Law Judge found that Re- spondent interfered with the Section 7 rights of its employees by telling them that they did not have to comply with the subpenas. We disagree. Unlike the subpenas in issue in the cases relied upon by the Administrative Law Judge,5 the subpenas in issue here were defective on their face, and, there- fore, Respondent's comments were an accurate de- scription of the employees' privilege not to comply with them. In addition, Respondent clearly in- formed the employees that they were free to honor the subpenas and that no action would be taken against any employee who chose to honor the sub- pena. Accordingly, we find that Respondent's com- ments were accurate, noncoercive, and did not vio- late Section 8(a)(l) of the Act. As set forth above, in order to insure that a large number of employees attended the hearing, the Union distributed subpenas to approximately 20 of Respondent's 40 unit employees. At no point prior to the hearing did the Union discuss any possible testimony that it intended to elicit from the subpen- aed employees, and at the hearing the Union did not call any of the employees as witnesses. Respon- dent filed objections to the election contending that the issuance of subpenas to one-half of the unit em- ployees was an abuse of the Board's process and caused employees to believe that the Board fa- vored the Union.' In agreement with Respondent, I Richard T Furmney and Naomi P. Furtney, a co-partnership d/b/a Mr. F's Beef and Bourbon, 212 NLRB 462, 466 (1974); and Bobs Motors In- corporated, 241 NLRB 1236 (1979). See also Winn.Dixie Stores, Inc.., and Winn-Dixie Greenville. Inc., 128 NLRB 574, 578-579 (1960). 6 Respondent's objections also alleged that Union Agent Haynes made statements in the presence of employees that left the impression that he was acting under Board authority and was a Board agent. In finding that the Union engaged in objectionable conduct, the Administrative Law Judge relied in part on his finding that, when Haynes distributed sub- penas to employees, he used language that gave some impression that Haynes spoke for the Board. The record, however, does not support this finding by the Administrative Law Judge. Haynes testified that he stated in the presence of employees that he was present as an agent of service and to explain the NLRB subpenas; Haynes denied that he told employ- ees that he was an NLRB agent. The Administrative Law Judge did not discredit Haynes nor did he credit Respondent's general manager, Asel. who initially testified during direct examination that Haynes had stated he was an NLRB agent. Subsequently, however, Asel testified that the Administrative Law Judge found that the Union issued subpenas to one-half of Respondent's work force in order to create the illusion that the Union was strong and that the Board was in favor of the Union, and that such conduct was objection- able. Accordingly, he recommended setting the election aside. On the particular facts of this case, we disagree. At the outset, we condemn the use by any party of mass subpenas as a device merely to generate employee enthusiasm or interest, or to cause mass employee attendance at Board proceedings. It clearly has the potential to disrupt Respondent's production schedule and is, of course, not the pur- pose for which the Board subpenas were intended. Subpenas are, on their face, issued to require the attendance of potential witnesses. Were we per- suaded that the Union's use of subpenas here con- fused employees or created the appearance of Board partisanship or otherwise impacted upon the exercise of free choice by employees, we would not hesitate to set aside the election. Our examina- tion of the record, however, reveals no support for the conclusion that the Union's ill-considered deci- sion to subpena employees en masse could reason- ably have created an impression that the Board fa- vored the Union or was in league with it. First, as indicated previously, nothing in the record sup- ports a finding that when the Union distributed the subpenas it made any statement or engaged in any other conduct that could have led employees into believing that the Board favored the Union. Thus, the Union's conduct in subpenaing employees en masse stands alone, unaccompanied by other con- duct that might have misled employees. Second, the distribution of subpenas here took place almost 2 months before the election and with the full knowledge of Respondent. Hence, it can hardly be Haynes had stated he was there to serve the subpenas and that he, Asel, could not recall Haynes' exact words. During cross-examination, Asel re- canted his earlier testimony and admitted that he could not remember Haynes' exact words and that he did not remember if Haynes had stated he was an agent of the NLRB. Finally, during redirect examination, Asel refreshed his recollection by reviewing a prehearing affidavit, and he then testified that Haynes had stated that he was a representative of the NLRB. In these circumstances, where the Administrative Law Judge has not made a credibility ruling and where the objecting party has the burden of establishing the objectionable conduct, we find that there is in- sufficient record evidence to support Respondent's objection that Haynes made statements that gave the impression that he was a Board agent or was acting with Board authority. Respondent's objections also allege that immediately after the close of the representation hearing the Union held a short meeting with employ- ees at the Board's offices. Respondent contends that the holding of a union meeting in the Board's offices interfered with the laboratory condi- tions of the election by conveying the impression that the Board favored the Union. The record reveals that the union agent requested that em- ployees who had witnessed an alleged assault on the union agent meet with him to discuss the incident. There is no record evidence to support Respondent's contentions that that short meeting conveyed the impres- sion that the Board favored the Union. 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argued that Respondent, if it feared confusion on the employees' part, did not have sufficient time to set the record straight and correct any possible misunderstandings. 7 In much the same vein, if Re- spondent believed that the en masse subpenaing of its employees was merely a device to harass it, it could have brought the matter to the attention of the Regional Director and requested appropriate relief. 8 In sum, the issue before us in this case is not whether the Union acted in an undesirable manner in subpenaing employees en masse-clearly it did- but rather whether the Union's conduct interfered with the laboratory conditions of the election. We are satisfied it did not; hence we decline to set aside the election. 9 Unlike the situation where a Board document has been altered (see, for example, Allied Electric Products, Inc., 109 NLRB 1270 (1954)), or where the law has been misstated (see, for example, Thiokol Chemical Corporation. Hall-Way Plant, 202 NLRB 434 (1973), there is no indication th at the issuance of a Board subpena involves the misrepresentation of Board actions. The Board issues subpenas in representation matters for all parties, at their request, and we do not see how the issuance of subpenas could imply that the Board favored one party or the other. a In this connection, we note that, consistent with the Board's Rules and Regulations, the Regional Director's issuance of subpenas upon proper application is a ministerial act which is largely automatic. Howev- er, where there is an abuse of the Board's process there is no impediment to an aggrieved party bringing the matter to the Regional Director's at- tention and moving to quash. Furthermore, should we discover wide- spread efforts to abuse our process we will consider sua sponle revisions of our Rules and Regulations to meet such a problem. I Indeed, it would be unfair to employees, whose interest after all is paramount, were we to set aside an election for misconduct of a party that had no impact on the election results. Finally, in overruling Respondent's objections, we do not adopt the Administrative Law Judge's discussion of E. H., Limited, d/b/a Earringh- ouse Imports, 227 NLRB 1107 (1977), enforcement denied 600 F.2d 930 (D.C. Cir. 1979), a case which we find plainly distinguishable. Member Truesdale notes that he was not a member of the Board when Earringhouse issued and that he has not had occasion to pass directly on the issue addressed by the Board in that Decision. Since he agrees with his colleagues that Earringhouse is distinguishable on its facts from the in- stant case, he finds it unnecessary to comment on the result reached by the Board there. Member Penello agrees that Earringhouse is "plainly distinguishable" from the factual situation in this case. The Administrative Law Judge, however, did not imply otherwise. He accurately and objectively synop- sized the distinguishing features of Earringhouse, and he did not in any way rely on the facts, the Board majority's holding, the Board minority's dissenting opinion, or the D.C. Circuit's holding in that case. The Admin- istrative Law Judge limited his analysis of Earringhouse to the scenario discussed in dicta at fn. 21 of the judicial decision. That scenario entailed in hypothetical terms the precise situation which in fact confronts the Board herein; i.e., "the issuance of more subpoenas than would ordinarily be required." Member Penello joins his colleagues in refusing to adopt the Administrative Law Judge's critique of the D.C. Circuit's views ex- pressed in fn. 21 of the Earringhouse decision, but Member Penello does so because the court's views are substantially in accord with the rationale unanimously expressed by the Board in the body of this Decision. More- over, although neither the factual nor the legal issues directly involved in Earringhouse are present in this case, Member Penello emphasizes his wholehearted endorsement of the D.C. Circuit's Earringhouse decision in its entirety, a decision which denied enforcement of the Board's Order and expressly agreed with the dissenting opinion of Member Penello and former Member Walther. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action de- signed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and on the entire record in this case, we make the fol- lowing: CONCLUSIONS OF LAW 1. Rolligon Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including draftsmen and parts department employ- ees, employed at the Company located at 10635 Brighton Lane, Stafford, Texas, but excluding all professional employees, purchasing assistants, in- ventory control, customer services, and payroll clerks, office clericals, leadmen, supervisors, guards and watchmen as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. By making threatening and coercive state- ments in a March 21, 1979, speech to assembled employees, Respondent violated Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 6. Respondent did not engage in any other unfair labor practices as alleged in the complaint. 7. The Union did not engage in any objection- able conduct sufficient to cause the election to be set aside. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Rolligon Corporation, Stafford, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Making threatening or coercive statements to employees because of their involvement in union activity. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 24 ROLLIGON CORPORATION 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its place of business in Stafford, Texas, copies of the attached notice marked "Ap- pendix." 1 0 Copies of said notice, on forms pro- vided by the Regional Director for Region 23, after being duly signed by Respondent's authorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. IT IS FURTHER ORDERED that the remainder of the complaint be, and it hereby is, dismissed. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Oil, Chemical and Atomic Workers International Union, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment: All production and maintenance employees, in- cluding draftsmen and parts department em- ployees, employed at the Company located at 10635 Brighton Lane, Stafford, Texas; but ex- cluding all professional employees, purchasing assistants, inventory control, customer ser- vices, and payroll clerks, office clericals, lead- men, supervisors, guards and watchmen as de- fined in the Act. 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives all employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT interfere with, restrain, or coerce our employees with regard to the above rights by telling employees that if they are unhappy and would rather work in a union shop they would do themselves and the Com- pany a great service by seeking a job else- where. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. ROLLIGON CORPORATION DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me at Houston, Texas, on October 24, 1979,' pursuant to a complaint issued by the Region- al Director of the National Labor Relations Board for Region 23 on June 8. In addition, on June 12, the Re- gional Director ordered consolidated certain issues aris- ing from a representation election in Case 23-RC-4758. The complaint, based upon a charge filed on March 23 by Oil, Chemical and Atomic Workers International Union, AFL-CIO (herein called the Union), alleges that Rolligon Corporation (herein called Respondent) has en- gaged in certain violations of Section 8(a)(1) of the Na- tional Labor Relations Act. The Union's representation petition was filed on March 6 and sought a representation election among Re- All dates herein refer to 1979 unless otherwise indicated. 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's production and maintenance employees. The Regional Director ordered an election in a Decision and Direction of Election issued April 10. The election was held on May 10 and a majority of votes was cast in favor of representation by the Union. Objections to conduct af- fecting the outcome of the election were timely filed by Respondent on May 16. Issues 1. Whether or not the Union abused its right to sub- pena employees to attend the representation hearing either by one of its officials misrepresenting his authority to employees, by subpenaing virtually all of Respon- dent's employees causing a plant shutdown where there was no legitimate purpose in causing their absence from work, or by misleading employees to believe that the NLRB endorsed representation by the Union. 2. Whether or not Respondent violated Section 8(a)(l) by interfering with the subpenas issued by the Union or violated the act by threatening employees with loss of various benefits in the event they chose to be represented by the Union. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the Union and Respondent. The General Coun- sel did not file a brief. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent admits it is a Texas corporation engaged in the manufacture of off-road vehicles and tires, having a factory located in Stafford, Texas. It further admits that during the past year, in the course and conduct of its business it has purchased and received goods and ma- terials valued in excess of 50,000 from suppliers outside Texas. Accordingly it admits, and I find, it to be an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, the Union to be a labor organization within the meaning of Section 2(5) of the Act. Ill. THE FACTS As noted, Respondent operates a factory in Stafford, Texas, a Houston suburb, where it manufactures off-road vehicles, which are generally utilized in remote areas in such ventures as oil exploration and construction. It also manufactures special, large tires for use on those vehi- cles. Its operation is principally divided into two divi- sions, the "fab" shop where the vehicles are manufac- tured and the tire plant where tires are built. In addition, it employs several people in its parts and receiving and shipping departments and has office and engineering staffs. Altogether it employs approximately 50 people, of which about 40 are in the bargaining unit found appro- priate by the Regional Director. Respondent's vice president and general manager is Herb Asel. The director of its tire division is vice presi- dent Thomas Novak; the manufacturing superintendent at the time in question was Rex Hartman and its parts department and shipping and receiving manager is Timo- thy Deyton. The principal Union official involved here is International Organizer Lonnie Haynes. Most of the facts are not in significant dispute and re- volve around the filing of two representation petitions during the early part of 1979. The first petition was filed by the Union in January. A hearing was conducted shortly thereafter and one of the issues which was litigated was the supervisory status of an employee named Allen Albee. On February 28 the Regional Director issued his decision in that matter, Case 23-RC-4744, and directed an election. He found, however, contrary to the Union's contention, that Albee was a supervisor and not eligible to vote in the election. Subsequently, it was discovered that Albee was the Union's principal board solicitor and that his participa- tion in the organizational drive may have "tainted" the authorization cards. As a result, the Director asked the Union to withdraw its petition under the threat of dis- missal if it failed to do so. The Union complied and began resoliciting authorization cards in order to support a new petition. The second petition, Case 23-RC-4758, was filed on March 6 and a hearing scheduled for March 20. Respon- dent moved both prior to and at the hearing to dismiss the second petition on the grounds that the organization- al drive was still tainted and because it believed the Union should not be permitted to file a second petition within 6 months of the first. See Sears, Roebuck & Com- pany, 107 NLRB 716 (1954), and section 11114.1b of the Board's Casehandling Manual, Representation Cases. Ac- cordingly, it insisted upon a hearing so those arguments could be made. Union organizer Haynes, believing that Respondent had utilized deceit to "convert" Albee from a statutory employee to a statutory supervisor, was determined that such an incident would not occur again. He called sever- al meetings of employees held at two restaurants within the 2-week period preceding the second hearing. At those meetings he explained to those present the difficul- ty the Union was having with Respondent and suggested that to counter similar deceit it would be a good idea to have as many employees present at the second hearing as possible. According to him, some of the employees ex- pressed fear that Respondent would engage in a reprisal against them if they attended the hearing. He pointed out that if they were subpenaed, their attendance would be compelled by law and Respondent could do nothing to punish them. As a corollary to that, however, he ob- served that the Union did not wish to spend a lot of money on statutory witness and mileage fees and he asked employees to volunteer their services. 26 ROLLIGON CORPORATION Beginning on approximately March 15 and continuing even in the early morning of March 20, the day of the hearing, Haynes and an associate, perhaps assisted by others, distributed 20 subpenas, usually at the plant en- trance. As a result of this effort the Union managed to serve subpenas on nearly every employee in the fab and tire shops. During the same time frame, employee David Hobbs, and perhaps another union official, separately so- licited signatures on a form which Haynes, at least, con- sidered to be waiver of the subpenaed employee's right to witness and mileage fees. The statement reads: This is to acknowledge that I, the undersigned, have been duly subpenaed by the Oil, Chemical and Atomic workers International Union, AFL-CIO to appear as a witness in the NLRB hearing on Rolli- gon Corporation. Be it further known that I will volunteer my services in order that the principles of justice are served. One employee, Clem Carter, who appeared to be of average intelligence, testified that he had not signed a fee waiver. When shown a copy of the foregoing document, Carter agreed he had indeed signed that paper. Since it was not presented to him simultaneously with the sub- pena, I believe it fair to conclude that he did not under- stand the purpose of the document. When read conjunc- tively it is not a model of clarity. Nowhere does the statement say the signer is specifically waiving a statu- tory right to witness and mileage fees. If read disjunc- tively the "volunteer" language could easily refer to some other organizing service. Under traditional "waiver" law such statements are deficient as not being clear and unmistakable. 2 The Union did not interview any employee in order to determine what sort of testimony he would give at the hearing. Welder Dan Ray and Carter testified no union official explained why they were subpenaed. That, of course, raises the question of why the Union subpenaed such a large number of employees if it had no intention of calling them to testify. If the Union truly wanted them to testify about factual material, the official han- dling the Union's presentation before the hearing officer presumably would have at least interviewed these indi- viduals with regard to facts which they could describe. In any event, on March 19, those employees who had been subpenaed presented their subpenas to their fore- men in order to seek time off for the following day. Not suprisingly, that touched off a company response. Man- ager Asel consulted with Respondent's attorneys about the situation and then Hartman and Novak conducted meetings in their respective shops. Although there is some dispute over the words which were actually used, it appears to be fair synthesis of the testimony of various witnesses that they told employees that in Respondent's opinion the subpenas were invalid because they were not accompanied by witness and mileage fees and the em- ployees were free to dishonor them. Further, however, it I See, e.g., The Timken Roller Bearing Co. v. N.LR.B., 325 F.2d 746 (6th Cir. 1963), cert. denied 376 U.S. 971 (1964); Texaco. Inc. v. N.LR.B., 462 F.2d 812 (3d Cir. 1972); Gary-Hobart Water Corporation, 210 NLRB 742 (1974); and Rose Arbor Manor. 242 NLRB 795 (1979). appears both Hartman and Novak told the employees that Respondent did not wish to prohibit them from at- tending the hearing and if they wished to do so Respon- dent would arrange a means by which all interested em- ployees could be scheduled to go and observe at least portions of the proceeding. Each shop set up a schedule whereby two employees per hour could leave the plant to go to the NLRB office in downtown Houston.3 According to Hobbs, who worked in the tire plant, Novak also said he did not like unions, did not want one in the plant, and stated that if a union came into the plant employees would lose fringe benefits such as paid sick leave and paid vacation. In addition, employees would probably lose wages and there would be no more friendship between the workers and management. On cross-examination Hobbs denied Novak was simply ex- plaining the manner in which collective bargaining worked but did say Novak told the group "we could end up with fewer benefits." He denies Novak said employ- ees could end up with more. Novak said he told the tire plant employees about an experience he had had when he worked at Goodyear Tire & Rubber Co. He said he explained how collective bargaining worked and cited an example which had oc- curred at Goodyear. According to him Goodyear had, before union representation, provided 5 days sick leave to its employees, but after the union became the repre- sentative it negotiated a contract in which that benefit was lost, He told the tire plant employees that negotia- tions could result in more benefits, less benefits, or the same benefits. He specifically denied telling employees that unionization would result in less or that unionization would result in no more friendship. He said he even cited an example at Goodyear in which the union had protected an employee whom that company had tried to fire for incompetence. Ray originally testified that Hartman, in the fab shop, told employees that the Union would not do Respondent any good and a newly granted benefit package would be taken away. He remembered Hartman saying that negoti- ations would mean that the parties would "start over again on our benefit package" and employees would lose all accrued vacation and start over "from the bottom." On cross-examination he conceded that in using the phrase start over Hartman was explaining that the Com- pany and the Union would move to bargain over fringe benefits and that employees could get less-that it de- pended on the progress of negotiations. Supervisor Deyton remembered an employee asking about negotiations after Hartman was finished explaining the subpena matter. He remembered Hartman saying ne- gotiators for both sides would sit down and "line by line" work out a contract. According to Deyton, Hart- man said fringe benefits depended on the outcome of ne- gotiations; the employees could end up with less or more. He said Hartman never said employees would end up with less if the Union came in and never threatened any loss of fringe benefits. Further, he said Hartman never said anything to the effect that benefits set forth in 3 Respondent did not notify the Union of its proposed action here. Likewise, the Union did not tell Respondent what its purpose was. 27 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employee handbook would be taken away. He admits Hartman told employees that the negotiators would start with a "blank piece of paper" but said that was the be- ginning of the negotiations which would take place on that piece of paper, "line by line." Frankly, I am unimpressed with the evidence adduced by the General Counsel in both incidents. I was not at all persuaded by Hobbs' veracity. Moreover, both Novak and Deyton, corroborated in good part by the General Counsel's witness, Ray, appeared far more credible. Hobbs seemed to be biased against Respondent and had a tendency to exaggerate and omit. Accordingly, his testi- mony is not credited. I conclude that the General Coun- sel has failed to prove the allegations relating to threat- ened loss of benefits or privileges. On March 20, at approximately 7 a.m., Lonnie Haynes arrived at Respondent's parking lot with some subpenas which he had not yet served. He said he was also there to explain the Union's position with respect to the valid- ity of the subpenas which had already been served; Hobbs had called him the day before to tell him that Re- spondent was claiming the subpenas were no good and was telling employees not to go to the hearing. Shortly after Haynes' arrival, General Manager Asel also ap- peared and the two had a verbal confrontation. Asel told Haynes to leave the parking lot as he was trespassing; Haynes responded asserting that he had a legal right to be there because "I'm acting as an agent of service and explanation of the NLRB subpenas." Each individual ac- cused the other of making physical threats. Asel, not cer- tain if Haynes had a legal right to be there, said he would call the police. Both were interrupted by the arri- val of another person who, at the very least, challenged Haynes who then went to the street to greet arriving em- ployees. Asel went inside the plant. As employees arrived for work that morning they were greeted by Haynes who told them their subpenas were valid and they could honor them. The employees then entered various vehicles snd carpooled themselves to the NLRB office, following Haynes' lead. Upon their arrival at the NLRB hearing room, they were spoken to by Haynes and another organizer. It is not exactly clear what was said to the employees but it appears that the union officials gave a short explanation of what was hap- pening, said that they were "glad you're here" and thanked the employees for coming down. The hearing itself was conducted in summary fashion as Respondent stipulated that the factual material ad- duced in the earlier hearing could be utilized to decide the instant petition. Respondent made its arguments re- garding the propriety of proceeding with the second case. At that point, the Union's representative asked that the subpenas of each of the employees who were present be entered as part of the record; the Hearing Officer denied that request but permitted the Union to place a list of those employees' names in the rejected exhibit file. The union official explained the Union's purpose by saying: "We want it in there as a matter of record be- cause of action taken by the Company in the last day in regard to this, and we will handle that in the proper manner through the Board procedures." The hearing ended after only 12 pages of transcript and without any witnesses being called to testify. Be- cause of the verbal altercation between Asel and Haynes which had occurred that morning, and because Haynes claimed he had suffered an injury from an assault by an employee of a nearby company and he believed the as- sault was based on instructions from Respondent, he asked those employees who had witnessed the incident to remain at the Board office and give statements to Board investigators. As all the employees had carpooled to the Regional Office, everyone was required to stay while they waited for their associates to finish being in- terviewed. In the meantime, due to the large number of employ- ees who had gone to the hearing instead of going to work, Respondent was effectively shut down. Those few employees who did report were unable to accomplish anything. Finally, when the employees left the Board office and returned to the plant, Respondent's manage- ment told them to come to work the next day because there was nothing which could be accomplished during the remaining hours. On the following day, March 21, Asel called all of the employees from both shops together and conducted a meeting. He read a speech and also answered a few ques- tions. The complaint alleges that he made statements which would lead employees to believe that unionization would be a futile act and that union activities were in- compatible with continued employment at Respondent. In support of these allegations the General Counsel ap- parently relies on the testimony of Dan Ray who said Asel told them that the Union was no good and not wel- come and that the Company would do anything in its power to keep it out. Asel's speech referred to the subpena incident the pre- vious day and accused the Union of having caused ev- eryone a loss of time and money, causing trouble and hard feelings. He also observed that without the Union the Company had grown and prospered and that man- agement did not have any intention of permitting the Union to destroy the Company. Asel ended with the fol- lowing paragraph: We appreciate the loyalty and the courage that many of you have shown. Still others of you may want this Union to represent you. Employees who are unhappy here at Rolligon and who would rather work in a Union shop would do yourselves, your coworkers, your supervisors, and this Compa- ny a great service if you would go and find a job where you will be satisfied. Because the Union is never going to run this Company. The Union is never going to be welcome here. We are going to fight this Union with every means the law allows. Because of the detailed evidence presented by Respon- dent here, I must discredit Ray. His recollection is in- complete and without the contextual detail shown by Respondent. As with the earlier speeches by Hartman and Novak, I am unable to find anything in this speech which is violative of the Act. It is true that the above- quoted paragraph contains some tough-minded language. 28 ROLLIGON CORPORATION Nonetheless, the fact that Respondent took a hard line against unionization does not require the conclusion that it was willing to break the law with regard to employee rights. Respondent merely stated it intended to use lawful means to oppose unionization. In no way did Asel imply that unionization would be a futile act. Further- more, his suggestion that employees who wished to be represented by a union seek work elsewhere was not couched in threatening terms, either direct or implied. It is true that Asel said the Union would never be welcome but that simply means that Respondent did not wish to give up any of its entrepreneurial perogatives to bargain- ing. That is a step away from implying that it would refuse to bargain or that unionization would be futile. Accordingly, I conclude there is a failure of proof with respect to those allegations. IV. ANALYSIS WITH RESPECT TO THE SUBPENA ISSUES Two specific issues are presented regarding the Union's use of subpenas in the representation case: first, whether or not it abused its right to utilize subpenas and if so if the election should be set aside; second, whether or not Respondent had any legal right to interfere with the Union's use of subpenas even if the Union was en- gaging in an abuse of process. With respect to the first issue, I conclude the Union had no legitimate purpose in subpenaing all but a few of Respondent's production and maintenance employees. The Board has not articulated any test to determine when suhpenas have been misused. Nonetheless, a certain guidance may be found in the subpena enforcement cases. In Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943), the Supreme Court observed that subpenas must be "not plainly incompetent or irrelevant to any lawful purpose of [the party issuing the subpenas.]" See also N.L.R.B. v. Frederick Cowan and Company, 522 F.2d 26, 28 (2d Cir. 1975). The question therefore is whether the Union's purpose was incompetent or irrele- vant to the issues in the representation case. I hold that the Union's purpose in subpenaing the 20 production and maintenance employees fails to meet that standard. Employee Clem Carter testified Haynes never told him why he was being subpenaed, never told him he was to be a witness and never interviewed him regarding po- tential testimony. Employee Luis Afre said Haynes told him he could expect to be subpenaed so he could attend the hearing without fear of Respondent's disciplining him. He was not told he would be a witness and was not interviewed with respect to potential testimony. It seems clear that the Union had no reason to believe that the issues in the second representation case would be decided differently from the first. Moreover, there is no evidence, except Haynes' assertion, that Respondent in the earlier hearing had engaged in deceit in its claim that Albee was a statutory supervisor. It seems to me, therefore, that all the Union needed was one or two knowledgable employees to assist it in presenting its case. To determine who those employees were would have required little effort on its part. If, during the hearing, something unusual had occurred there is no doubt that sufficient time would have been al- lowed to obtain appropriate witnesses. Haynes, however, acted at a tangent to those con- cerns. He subpenaed 20 employees, 19 of whom ap- peared. Two said they appeared only because of the command of the subpena and feared sanctions if they had failed to comply.4 They were not aware that the Union had no intention of enforcing the subpenas. Carter was unaware that Haynes had supposedly said that their pres- ence was to counter Respondent's expected trickery or that his presence was "voluntary"--the word used in the waiver form. Yet Haynes claims it was the employees who wanted to attend. He even concedes that when he learned their desire he suggested that subpenas would protect them. Combined with the foregoing, however, is Haynes' ad- mission that in the early morning of March 20 he told Asel, in the presence of employees, that he was present as "an agent of service and explanation of the NLRB subpenas." Asel recalls Haynes saying he was an "NLRB agent." Whether or not Asel's version is credited, it is clear that Haynes used language which gave some im- pression that he spoke for the Board. His "explanation" had the color of Board authority. Thus his assertion that the subpenas were valid was intended to be considered more authoritative than Respondent's whose assertion was to the contrary. Based on these facts I find that Haynes subpenaed Re- spondent's work force in order to create the illusion-di- rected at both undecided employees and Respondent- that the Union was strong and as specifically approved by the National Labor Relations Board. Indeed, it was contrived in such a way as to cause what appeared to be a Board-approved and protected organizational work stoppage, for the Board-issued subpenas gave the em- ployees a legal shield they would not otherwise have had. The subpenas were therefore issued for incompetent and irrelevant purposes.5 This scenerio appears to me to be exactly the case about which the District of Columbia Court of Appeals was warned in Service Employees International Union, Local 250, AFL-CIO (E. H. Limited d/b/a Earringhouse Imports) v. N.L.R.B., 600 F.2d 930, 938, fn. 21 (1979). In the Earringhouse situation subpenas were not issued by the petitioning union but virtually all of the employer's employees left work to attend the representation case hearing. The company had attempted, as Respondent did here, to accomodate employees who wished to attend the hearing. The employees disregarded the employer's directive to remain at work, attended the meeting, and were discharged as a disciplinary measure. The Board found that the employees were discharged for attending the Board hearing and ordered their reinstatement. The court reversed, holding that in balancing the employees' rights against the employer's rights there was no viola- 4 Only four employees testified. 5 The vagueness of the waiver forms, too, is evidence that Haynes was being less than candid with the employees. He seems to have been mis- leading employees into waiving their right to fees by not informing them what that right was. If he was willing to mislead there, it is also likely that he was trying to mislead them in the parking lot regarding his au- thority-again by imprecise, but carefully couched language. 29 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. In dealing with the Board's dissenting opinion,6 the court majority observed that even though there were no subpenas in that case the result might have been different had the employees been so served. Then it stated in foot- note 21: We recognize that the adoption of the Board mi- nority view may result in the issuance of more sub- poenas than would ordinarily be required. It is sug- gested that union counsel may subpoena all employ- ees of a given employer. We have more faith in union counsel handling labor matters and, should that occur, the ALJ [hearing officer?] may revoke the subpenas or otherwise impose sanctions. It is apparent that this Union (which is not represented by counsel) did not meet the level of trust expected by the court of appeals. Moreover, these facts demonstrate the difficulties that any responsible party would have to prevent the situation from occurring. The court suggest- ed that the hearing officer in the representation case could revoke the subpenas. As a practical matter, how- ever, that can be done only if the subpenaed employee is aware of his right to petition to revoke and does so in a timely fashion. Here, at least some of the subpenas were issued on the day of or the day before the hearing and the employees had no reasonable means to seek to revoke the petition even if they were aware of their right to do so. The Regional Director was in a precarious po- sition not wishing to interfere with what might be a lawful need and in any event was inhibited from doing so since the issuance of subpenas in this circumstance is a ministerial act in which he could not interfere. See Sec- tion 102.31(a) of the Board's Rules and Regulations, D. B. Lewis, et al. v. N.L.R.B., 357 U.S. 10, 14 (1958), and Free-Flow Packaging Corporation, 219 NLRB 925, 926 (1975). In both cases it was held that the issuance of sub- penas was a ministerial act involving no exercise of dis- cretion. That being so, the Regional Director has no au- thority to police misuse of the subpenas under current Board rules. If one compares the Board's subpena rules with the rules of court, one can readily see that while both have the right to quash or revoke, the courts also have the power to hold in contempt persons who abuse that pro- cess. The Board, through its administrative law judges and its hearing officers, has no such authority. How then, may the Board protect its processes from such abuse? Under current rules it appears it cannot and its in- ability to do so can easily result in a situation such as oc- curred here. Respondent had no standing to complain about the subpenas except by objections to the election; the employees had neither time nor sufficient knowledge to exercise their right under the rules; and the Director had no authority. Moreover, by the time the employees reached the hearing room, even if they had chosen to seek revocation of their subpenas, the damage was al- ready done. Accordingly, I recommend that the Board study this problem and consider rule-making in this area to prevent further abuse from occurring. 6 227 NLRB 1107, 1113-14, frn. 24 (1977). In the meantime, however, I shall recommend that the election be set aside on the grounds that the Union abused its right to subpena employees and thereby made it appear as if the Board either endorsed the Union's tactic or had enleagued itself with the Union in some fashion. The Board and its agents must be, and at all times also must appear to be, neutral. By wrapping em- ployees in the protection of the Board's subpenas in order to cause a work stoppage, the Union misled em- ployees into believing that the Board endorsed both the Union's sought-after representational status and the work stoppage. For that reason, Respondent's objections should be sustained and the election should be set aside. Allied Electric Products, Inc., 109 NLRB 1270 (1974); Rebmar, Inc., 173 NLRB 1434 (1968); GAF Corporation, 234 NLRB 1209 (1978); Columbia Tanning Corporation, 238 NLRB 899 (1978). There remains for consideration the second issue, the allegation that Respondent improperly interfered with the subpenas. Aside from the question of whether or not the Union was engaging in an abuse of process, one must bear in mind that the subpena is an important tool of those public bodies charged with fact finding-both courts and administrative agencies. The integrity of the subpena process must be left unfettered and not inter- fered with. Indeed, the Board has previously held that when an employer informs an employee that he need not comply with a Board subpena, or when it advises the employee that he is "free to suit himself in deciding whether to go or not to go to a Board hearing in re- sponse to the commands of subpena, such statements constitute unlawful interference with the Section 7 rights and are a violation of Section 8(a)(1) of the Act." Rich- ard T Furtney and Naomi P. Furtney, a Co-partnership d/ b/a Mr. F's Beef and Bourbon, 212 NLRB 462, 466 (1974), and Bobs Motors, Incorporated, 241 NLRB 1236 (1979). It was not within Respondent's realm of responsi- bility to make judgments about the subpenas' validity or to suggest conduct inconsistent with their command. Ac- cordingly, I conclude that statements made by Novak and Hartman on March 19 to the effect that the subpenas were invalid and need not be honored violated Section 8(a)(l). V. THE REMEDY Having found that Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act by interfering with the Board's sub- pena power, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act.7 Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: 7 In addition, I recommend that the Board administratively require the Union to comply with Board Rule 102.66(g) by paying the subpenaed employees the statutory witness and mileage fees. 30 ROLLIGON CORPORATION CONCLUSIONS OF LAW I. The Respondent, Rolligon Corporation, is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union, by abusing the subpena power of the Board, interfered with the outcome of the election by misleading employees into believing that the National Labor Relations Board endorsed both the Union's repre- sentational status and the Union's prehearing work stop- page. 4. Respondent, acting through its agents Thomas Novak and Rex Hartman violated Section 8(a)(l) on March 19, 1979, by advising employees that the subpenas which had been served upon them were invalid and that they need not be honored. 5. Respondent did not engage in any other unfair labor practices as alleged. [Recommended Order omitted from publication.] 31