Coplay Cement Co.

COPLAY CEMENT CO Coplay Cement Company and Independent Workers of North America Coplay Cement Company, Employer-Petitioner and Independent Workers of North America and Local Lodge D485, International Brotherhood of Boilermakers, AFL-CIO and the Internation al Brotherhood of Boilermakers Cases 25-CA- 18724 and 25-RM-538 January 12, 1989 DECISION, ORDER, AND DIRECTION OF RUNOFF ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 8, 1988, Administrative Law Judge Norman Zankel issued the attached decision The Charging Party filed exceptions and a supporting brief, and the Respondent filed a brief in support of the judge's decision The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i rec- ommendations,2 and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint in Case 25- CA-18724 is dismissed IT IS FURTHER ORDERED that the objections filed in Case 25-RM-538 are overruled IT IS FURTHER ORDERED that the challenges to the ballots of J Bennett B Brady, A Mee, M Perrone, G Pumaso (or Pomasl), and P Roberson in Case 25-RM-538 are sustained IT IS FURTHER ORDERED that Case 25-RM-538 is severed from Case 25-CA- 18724 and remanded to the Regional Director for Region 25 for the pur pose of conducting a runoff election DIRECTION OF RUNOFF ELECTION It is directed that the Regional Director shall conduct a runoff election at a time and place to be determined by him, among those employed during 1 The Charging Party has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings 2 In the absence of exceptions we adopt pro forma the judge s recom mended disposition of the challenged ballots 309 the payroll period used in the prior election, to de- termine whether they desire to be represented for collective bargaining by Local Lodge D485, Inter- national Brotherhood of Boilermakers, AFL-CIO and the International Brotherhood of Boilermakers Steve Robles Esq for the General Counsel Frank H Stewart and Susan D Jansen Esqs (Taft Stet tinius & Hollister) of Cincinnati, Ohio, for the Employer/Petitioner Thomas E Cooper, Coordinator, of Westmont Illinois and Bernard N Katz and Ehssa B Katz Esqs (Meranze and Katz) of Philadelphia Pennsylvania for Inde pendent Workers of North America, the Charging Party/Intervenor Fred 0 Towe Esq (Fillenwarth Dennerline Groth & Baird), of Indianapolis Indiana for the Boilermakers Unions DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge These cases came before me on January 5 and 6 1988, at Lo gansport Indiana The allegations in Case 25-CA-18724 that the Employer committed unfair labor practices evolved from a charge filed by Independent Workers of North America (IWNA) on June 15, 1987 1 A complaint and notice of hearing issued on July 29 The complaint alleges that the Employer violated Sec tion 8(a)(1) of the National Labor Relations Act (the Act) by engaging in a variety of conduct in April and June that interfered with, restrained, and coerced em ployees in the exercise of their rights guaranteed in Sec tion 7 of the Act Specifically, the complaint alleges that G Uding, the Employers president in late April threatened employees with wage reductions if they were to select Boilermakers Lodge D485 (Lodge D485) as their collective bargaining representative threatened to engage in protracted litiga tion to deprive employees of their representational rights threatened employees that negotiations would begin at square one if they were to select either IWNA or Lodge D485 as their collective bargaining representative and promised to issue an employee handbook if the em ployees did not select IWNA or Lodge D485 as their collective bargaining representative Also, the complaint alleges that on June 4 and 5 Uding threatened employees with a wage reduction if they were to select either IWNA or Lodge D485 as their collective bargaining agent and promised to institute a grievance procedure if the employees would not select IWNA or Lodge D485 to bargain collectively on their behalf The representation case (25-RM-538) arose from the Employer having filed on April 16 a petition for a rep resentation election The petition was processed and, on a record hearing conducted by a hearing officer the Re gional Director for Region 25 issued a Decision and Di 1 All dates are in 1987 unless otherwise indicated 292 NLRB No 40 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rection of Election on May 20 That decision ordered a representation election among an appropriate unit of em ployees at the Employers Logansport Indiana facility 2 The Regional Directors decision gave the employees an opportunity to vote either for IWNA or Lodge D485 to be their collective bargaining agent or for no collective bargaining representative A secret ballot election was conducted under Board auspices on June 16 The results were inconclusive A total of 69 ballots were cast Of these 8 votes were cast for IWNA, 24 votes were cast for Lodge D485, and 31 votes were cast for no representation by either IWNA or Lodge D485 Also six ballots were challenged by both IWNA and Lodge D485 Those ballots are determinative of the election results Both IWNA and Lodge D485 filed timely objections to the conduct of the election IWNA s objections are coextensive with the complaint allegations Lodge D485 s objections are identical to the unfair labor prac tice allegations, except they omit any reference to the al leged promise of a grievance procedure as objectionable conduct On September 3 the Regional Director issued a Sup plemental Decision, Order Directing Hearing, Order Consolidating Cases, and Notice of Hearing That docu ment combined resolution of the unfair labor practice al legations, the election objections and challenged ballots in the instant proceeding The Employer filed a timely answer to the complaint The answer admitted some of the allegations, but denied that the Employer engaged in any of the alleged unfair labor practices All parties were given an opportunity to present wit nesses and to examine and cross examine them 3 to present documentary evidence and to make oral argu ment Posthearing briefs have been received from coun sel for each of the parties On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs I make the following FINDINGS AND CONCLUSIONS I JURISDICTION The Employer a Pennsylvania corporation is engaged in the business of quarrying limestone and clay and the manufacture, sale and distribution of cement The Em ployer s principal office and place of business is located at Nazareth Pennsylvania It maintains and operates other facilities at Egypt, Pennsylvania and at Speed and Logansport, Indiana Only the Logansport facility is principally involved in these proceedings During the 12 months immediately preceding com plaint issuance a representative period, the Employer sold and shipped goods and materials valued in excess of $50,000 from its Logansport facility directly to points outside Indiana, and also purchased and received prod ucts goods, and materials exceeding $50,000 in value at that facility directly from points outside Indiana Fur ther the Employers gross revenues exceeded $500,000 in the 12 months before the complaint issued The Employer admits the record reflects and I find that it is and, at all material times, has been an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act The parties agree, the record reflects, and I find that IWNA4 and Lodge D485 are and, at all material times have been labor organizations within the meaning of Sec tion 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background Lodge D485 was the collective bargaining agent of the Logansport production and maintenance unit from 1967 Successive collective bargaining agreements covered those employees from that date until Jcne 24 1984 the expiration date of the most recent agreement Between 1967 and 1984, the Logansport facility was owned and operated by Louisville Cement Co In Febru ary 1985, the instant Employer acquired that facility The Employer then engaged Lodge D485 in collective bargaining negotiations for a contract to replace that which had expired In May 1985 after impasse (a condi tion uncontested) the Employer implemented the terms of what then was its most recent contract offer The unit employees worked under those terms from May 1985 until April 1986 In April 1986 the Employer submitted new contract proposals to Lodge D485 The relationship between those parties between April and September 1986 is un clear However two noteworthy events occurred (1) the Employer unilaterally implemented the terms of its April 1986 proposals one of which effectuated a $2 per hour reduction in wages of unit employees 5 and (2) a dissident faction of Lodge D485 formed IWNA IWNA immediately began an organizational campaign at a number of cement plants In early 1987 IWNA filed representation petitions for representation elections at the instant Employers three Pennsylvania plantss and also its plant in Frederick Maryland On March 27, a majority of Logansport unit employ ees who attended a meeting called by IWNA voted to disaffiliate from Lodge D485 C Newell formerly presi 2 The following unit was found appropriate All production and maintenance employees store room clerks chemical analysts and control room operators at the Employers Lo gansport Indiana facility but excluding office clerks purchasing and payroll clerks professional employees and supervisors as defined in the Act 3 With a single exception all witnesses were sequestered General Counsel witness C Newell remained in the hearing room throughout the trial to assist counsel for the General Counsel if necessary No party ob jected to Newell s presence for such purpose I find that Newell s pres ence neither affected his testimony nor that of any other witness 4 The Employers answer initially denied IWNA s status as a labor or ganization The answer was amended orally at the hearing to reflect the Employer now admits IWNA is a labor organization 5 The September 1986 implementation of the April proposals is not the subject of unfair labor prance allegations in the instant case 6 On June 11 1987 a Board conducted election was vacated by the Board on March 16 1988 (288 NLRB 66) on grounds it had been con ducted among employees in an inappropriate bargaining unit The Boards decision sustained the Employers contention that the only appro priate unit consists of all three of its Pennsylvania plants COPLAY CEMENT CO dent of Lodge D485, became president of IWNA The Employer was advised of the disaffiliation vote a few days later The Employer posted a notice that advised employees that it did not recognize IWNA as a viable labor organization and that a Board election was needed As earlier reported the Employer filed the instant RM petition on April 16 7 The Employers president, G Uding, held several meetings at the Logansport facility with bargaining unit employees On April 21 Uding conducted one large meeting in the lunchroom and two or three small group meetings at various work stations Uding also met with unit employees on June 4 and 5 As earlier noted, some of Uding's statements on April 21 and June 5 and 6 are the subject of the instant unfair labor practice allegations and election objections B Credibility Whether Uding made the remarks alleged as unfair labor practices and grounds to set aside the instant elec tion, turns on determination of the witnesses relative credibility My credibility resolutions are based essentially on my observation of witness demeanor, the weight of the re spective evidence established, admitted, or uncontrover table facts, inherent probabilities, and reasonable infer ences, which may be made from the record as a whole Gold Standard Enterprises, 234 NLRB 618 (1978), V & W Castings 231 NLRB 912 (1977) Northridge Knitting Mills 223 NLRB 230 (1976) Also, I have carefully weighed all the testimony, bear ing in mind the general tendency of witnesses to testify in terms of their personal impressions or interpretations of what was said to or heard by them I have considered the personal interests of all wit nesses in the outcome of this litigation and applied the principle that testimony of current employees against their employers interests is not likely to be false See Our Way Inc, 268 NLRB 394, 402 (1983), Shop Rite Su permarket 231 NLRB 500 (1977) In assessing credibility in this case I have also applied the notion that a trier of fact need not discredit a witness simply because all of that witness testimony is not be lieved Nothing is more common than to believe some and not all of what a witness says Edwards Transporta tion Co , 187 NLRB 3 3-4 (1970), enfd per curiam 449 F 2d 155 (5th Cir 1971) Wilco Energy Corp 246 NLRB 851 fn 1 (1979) Finally I have particularly reviewed and studied the situations that the parties have cited in their posthearing briefs as specific examples of adverse reflections on the testimony of opposing witnesses The General Counsel produced five witnesses Each was employed by the Employer at the time he testified These witnesses presented testimony concerning what Uding said during the April and June meetings with unit employees The Board conducted election was held in the instant RM case on June 16 but the ballots were impounded until August 17 The results appear above in the statement of the case section 311 The Employers witnesses consisted of Uding, six cur rent employees and also its labor relations manager The opposing witnesses testimony provides direct conflicts on virtually each material statement allegedly made by Uding Nonetheless I do not discredit any of the witnesses who testified My observation of witness demeanor persuades me that each witness strived to tell the truth according to his personal perceptions and recollection I attribute testimonial variations to indlvid ual human differences in cognition and comprehension The instant issues challenge the propriety of several of Uding s remarks during his April and June meetings with unit employees Uding provided extremely comprehen sive descriptions of his version of those meetings His testimony was direct, certain, clear, concise, and precise In contrast, the General Counsel's witnesses were somewhat selective in their recall of relevant comments, in some instances were self contradictory, presented criti cal testimony only after counsels leading questions, were imprecise, presented fragmented testimony, and corrobo rated the Employers witnesses in respects that tend to support the accuracy of the Employer's version of events The General Counsel argues (posthearing brief, pp 8- 9) that the testimony of unit employees who testified on behalf of the Employer contains similar defects and is equally vulnerable to rejection as probative evidence I concede that these witnesses testified in staccato fashion needed to be prodded by leading questions, and were vague in some respects Nonetheless, my overall reliance on the Employers version for factual findings is unaf fected This is so for two reasons First, it is principally Uding s straightforward forthright, and inherently con sistent testimony that is the foundation on which my findings have been made Second, I attribute the testimo vial deficiencies among the Employers employee wit nesses to my observation made at trial that each of those witnesses patently had been subject to minimal pre trial preparation or none at all In such a context it is not surprising that memories would be imperfect and need jogging In any event, none of these witnesses testi mony comprises the sole basis of any of my factual find ings on the substantive issues C The April 21 Meeting Complaint8 paragraphs 5(a)(i-iv) allege Uding threat ened wage reductions protracted litigation, a return to square one, and issuance of an employee handbook con tingent on election results General Counsel witnesses M L Rance and K Lef fert both testified during their direct examination, that in the April meeting with employees Uding said if the em ployees voted for representation by IWNA negotiations would go back to Square One Their description of this remark was quite abbreviated Though he was explicitly asked to describe what Uding said in as much detail as he could recall Rance 8 Discussion of the allegations of unlawful activity in April will not appear in the order set forth in the complaint because I deem it neces sary to interweave observations and conclusions concerning witness reli ability 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD testified only that he heard Uding say if we voted for IWNA we d have to start at square one and claimed he had no recollection of any explanation of that remark by Uding Leffert recalled that an employee asked whether Uding meant that wages would return to minimum wage rates, and that Uding answered he believed that would not happen Neither Rance nor Leffert provided a con text out of which such a comment sprang General Counsel witness Newell gave the most com prehensive and explicit account of what occurred during the employee group meetings Newell took notes as Uding spoke In his own words Newell claimed he at tended the meetings to see if the company went off base During direct examination Newell was asked to tell the judge in as much detail as you can recall, what Mr Uding said at the April meeting Interestingly, Newell did not at all testify that Uding made the Square One remark, as described by Rance and Lef fert In fact Newell expressly testified during cross ex amination that he did not hear Uding or any other su pervisor say anything about starting from square one I conclude the above accounts present such a confused state concerning the alleged threat to begin negotiations at square one as to render them as unreliable bases for factual findings 9 , Uding unequivocally denied he used the phrase square one I credit his denial based on my assessment of Uding s overall reliability and the confusing character of the countervailing testimony Uding s testimony reflects that he used the term ground zero in April but that it referred to his discus sion of parallel circumstances between the Logansport facility and the Employers plants in Pennsylvania In part, Uding spoke of the pending representation pe tition at the Pennsylvania locations (see fn 6 above and accompanying text) In relevant part Uding s version re flects that his use of the words ground zero related to the situation in Pennsylvania and that he told the Lo gansport employees the Pennsylvania facilities were op erating under implemented terms and conditions [and] not the old expired contract The union orga nizers have shown no enthusiasm for accepting that so we d [the parties to Pennsylvania negotiations] have to go back to the beginning and negotiate a contract that was acceptable to both parties In fact the Board s decision involving the Pennsylva ma locations (see fn 6 above) recites that the most recent collective bargaining agreement there had expired on April 30 1984 that the Pennsylvania plant unions and the Employer negotiated for new contracts from June 1984 through March 1986 with no success, and that the Board s Regional Office hearing on the Pennsylvania pe tition was conducted sometime during the spring of 1987 I find this chronological scenario lends plausibility to Uding s recitation of what he said about the Pennsylva nia situation to Logansport employees in April 9 Compounding the confusion is Rance s testimony that in a June em ployee meeting he heard Uding say that well start from page one if the employees vote for Lodge D485 Such a comment is not alleged as a violation and no other witness gave such testimony On all relevant discussion above I find Uding did not use the phrase Square One during the April meeting with employees that he used the phrase ground zero but in a manner that does not violate Act Rance s direct examination concerning the alleged threat to engage in protracted litigation is devoid of any question or answer concerning that subject 10 However during cross exams nation Rance spontaneously recalled that Uding said if the employees voted for IWNA it would be tied up in court for a couple of years Rance was not sure whether Uding said this in April or June Rance was confronted with his prehearing affidavit In that document he as serted They [employer representatives] never told me that they would tie this up in litigation in Court for two years to keep this union out I find this apparent contra diction, together with Rance s failure to testify on this al leged threat during direct examination and his uncertain ty concerning when the alleged threat was made im pacts adversely on his testimonial reliability The reliability of Rance and Leffert is further dimin fished by their testimony that Uding allegedly threatened a wage reduction if the employees voted for Lodge D485 Rance testified that Uding during the April meet ing said if we voted for the Boilermakers he d [Uding] have to take about $2 00 an hour right off the top so they could be competitive down the road Lefferts ver sion differs According to Leffert Uding said, If the Boilermakers won the election there would automatically be a $2 00 cut in wages because they would go for a 3-5 year contract No other General Counsel witness tests fled concerning this incident The differences in these versions though arguably inconsequential underscore the hazard in relying on either version for factual find rags The danger becomes more prominent when Rance s and Lefferts wage cut testimony is compared to that of employee G Wallace Wallace a General Counsel wit ness also testified regarding the alleged $2 wage cut During his direct examination Wallace was presented leading questions concerning this issue Wallace an swered he did not recall whether Uding made any com ment about wages During cross examination Wallace became more specific First Wallace said he did not recall that Uding said there would be a $2 per hour wage cut Wallace then was confronted with his prehear mg affidavit after which he explicitly denied that any of the Employers representatives said wages would be cut $2 an hour The inconsistencies, variations and waffling present in the General Counsels witnesses testimony on the al leged $2 wage cut threat simply make it extremely diffi cult if not impossible, to use that testimony as a founda tion for the factual findings sought by the General Coun sel This is especially true when a comparison is made between that testimony and that presented by the Em ployer s witnesses Uding and J Coale the Employers labor relations manager both recalled that Uding referred to a $2 per hour wage reduction However Uding and Coale were 10 The threat of protracted litigation will be further discussed below COPLAY CEMENT CO 313 more comprehensive in their description of the context in which that subject had been raised than were the Gen era] Counsels witnesses Uding flatly denied he said anything about a wage cut being dependent on the outcome of a representation elec tion Instead Uding testified that at the April meeting an employee asked why it had been necessary to ample ment wage reductions at Logansport (I have earlier re ported the Employer s implementation of a $2 per hour wage reduction in September 1986 See sec II A above) Uding testified he explained the reduction was economically motivated and mentioned specific factors Coale provided uncontested factual background for Uding s testimony Coale described the conditions under which the bargaining unit operated after the June 1984 expiration of the most recent collective bargaining agree ment Viewed together, and considered in connection with my observation of witness demeanor I find Uding s and Coale s testimony a plausible account of what Uding said to employees in April concerning a $2 wage reduction i i Also, I credit Uding s denial he told the employees they would suffer a $2 an hour wage cut if they voted for Lodge D485 Finally, as instances in which General Counsel wit nesses corroborated Uding s testimony the following are cited Newell and Wallace agreed Uding told the em ployees he could not promise them anything and Leffert and Wallace conceded that Uding s statements concern ing promulgation of an employee handbook (alleged as an unlawful promise of benefit) were made in response to an employee question and consisted of a brief description of Uding s personal experience with similar conditions at a different plant Wallace presented the most comprehensive accounts of certain events among General Counsels witnesses His testimony was designed to prove that Uding threat ened protracted litigation in the event IWNA was select ed bargaining representative and also promised to estab lash an employee handbook if the employee would not select either IWNA or Lodge D485 as their representa tive Wallace testified Uding spoke about litigation and a handbook However I find Wallace s description of the litigation comment contains uncertainty that persuades me that reliance on Wallace s recount of what Uding may have said is not as valid as reliance on Uding s de scription of the same subject Thus Wallace testified that Uding said if either union got in, he would go-could tie it up in courts for two years Clearly the quoted tes timony shows Wallace was unsure whether Uding said he would go to or could tie it up in courts Moreover the complaint (par 5(a)(ii)) specifically as serts Uding s alleged threat was conditional on the em ployees selecting IWNA as bargaining representative Wallace s quoted testimony reflects that Uding condi 11 Employees M Mee J Thomson and W Platt testified on the Em ployer s behalf that Uding did not say there would be a $2 wage reduc tion I have accorded the testimony of these three witnesses some but not dispositive probative value As earlier reported I have concluded that none of the testimony of employee witnesses who testified in this case is as reliable a source for factual findings as Uding tioned the alleged threat on the employees selection of either IWNA or Lodge D485 as their bargaining agent Further, Rance Leffert, and Newell all testified this al leged threat was conditioned on a vote in favor of IWNA Wallace s account is obviously different from other General Counsel witnesses Uding acknowledged he spoke of court proceedings during his April employee meeting Uding s account is direct and marked with considerably more clarity than the totality of what exists from General Counsels wit nesses Regarding this allegation, Uding told the employ ees the Employers position was that IWNA was not a viable legitimate labor organization (It is undisputed that IWNA had no formal structure at that time Only the vote of disaffiliation reported above in sec II, A had occurred) Uding recalled he also told the employees that the Employer had taken the same position in the proceedings pending at its Pennsylvania facilities Coale testified he heard Uding speak of litigation during the April meeting In straightforward narration, Coale testified an employee asked how the Pennsylvania operations related to the rival claims of IWNA and Lodge D485 at Logansport Coale recalled that Uding said the Pennsylvania issue was still in a litigation proc ess, which could be protracted and tied up it courts for an extended period of time Documentary evidence (E Exh 11), a June 11 memo randum from J Gaffney, the Employers vice president tends to support the accuracy of the combined testimony of Uding and Coale That memorandum is addressed to the Logansport employees It advises them of the current status of the pending representation elections at the Pennsylvania facilities The employees were notified (1) the Pennsylvania election would proceed as scheduled on June 11 but that the ballots would be impounded pending the Board s resolution of the multiplant issue (2) the Board had agreed to more fully review the Employ er s position on that issue which had been made initially in November 1986, (3) the Employer had no indication the length of time this review process will take and (4) the Employer would keep the employees apprised of fur ther developments In my view the contents of Gaffney s June 11 memo randum provides greater legitimacy to Uding s and Coale s versions of what Uding said about litigation than to the varying versions presented by General Counsel s witness I find that documents references to the Pennsyl vania election the Employers position and the apparent delay to be caused by impoundment of ballots and fur ther Board review are wholly consistent with and natu ral extensions of the Employers version of what Uding told employees in April about litigation Accordingly I adopt that version as the most reliable indicator of what occurred concerning the alleged threat of protracted liti gation As indicated above Wallace also was presented to support the allegation that Uding unlawfully promised employees a benefit Specifically, the complaint (par 5(a)(iv)) alleges Uding told the Logansport employees in April, that the Employer would promulgate an employee 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD handbook if the employees would refrain from selecting either IWNA or Lodge D485 as their bargaining agent As earlier reported, both Wallace and General Counsel witness Leffert testified Uding s comments about a hand book were stimulated by a question from another em ployee during the April meeting Wallace testified an employee (unnamed) asked who would take care of problems that we had if we had no union committee Leffert recalled the question was asked in somewhat different form namely, that the em ployee asked If we don t have a union contract how will we know what our working conditions are like? 12 Wallace, during his direct examination, claimed with certainty that Uding answered the question by saying he would set up a handbook to use as a guideline and rules and they would go around and get the prior ities of the employees before this was done Wallace however agreed during cross examination, that Uding clearly told the employees he could not promise them anything and that the handbook was a device used in a nonunion plant with which Uding had experience in similar situations Leffert, when pressed for specificity during cross ex amination, testified in a manner more consistent with Wallace s cross (rather than direct) examination Leffert testified Uding answered the employees question by saying at a plant I ve had an experience that was non union, we had it in a handbook Both Coale and Uding testified on the handbook alle gation Coale s account was perfunctory compared with Uding s Nonetheless they testified consistently Coale merely recalled that an employee asked how a plant could operate without a union contract and that Uding answered that in his experience in a nonunion situation in Towanda, Pennsylvania a handbook had been devel oped Uding s handbook testimony was more specific He re called the question as Leffert described it Uding asserted he was asked how employees would know what were their benefits if the plant were nonunion Uding claimed he told them I could not tell them we would provide them with any particular instrument to do that but I re called from my experience what we had done in other nonunion plants-that from my experience we had used a handbook to describe benefits Uding emphasized he repeatedly said he could not promise anything He also unequivocally denied that he spoke of a committee to es tablish priorities I credit Uding s account of what he said concerning a handbook The cross examination of Wallace and Leffert are not vastly different 13 Uding was unshaken through out his testimony on the handbook Wallace was not as steady as witness on this subject Moreover I find an item of documentary evidence tends to support Uding s testimony that he simply an swered an employees question without promising any thing A memorandum, dated May 26 from Plant Man 12 1 do not find these different versions of the question significant is Even if I were to credit fully Wallace s version (during his direct examination) I find nothing in Wallace s testimony that conditions the handbook on employee rejection of both labor organizations as alleged ager W G Biehl to the Logansport employees refers to an employee handbook In relevant part the memoran dum states Certainly an operation like Logansport needs guidelines, policies and procedures with or without a union In other non union operations, an Employee Handbook replaces the contract so that employees un derstand job bidding, length of service provisions, vaca tion procedure, etc This quoted language, albeit au thored by Biehl and not Uding, is couched in the same factually innocuous terms as Uding claims he used when he spoke of a handbook in April 14 I find Uding s handbook remarks far removed from sit uations when the Board has found violations In the in stant case as noted above, I find nothing Uding said re garding a handbook conditioned its promulgation on how the employees would vote Even if such a promise were to be implied, the more reliable and credited ac count of Uding s comment eliminates the inherent vice of such implication namely, that the handbooks contents would contain solutions to specific employee problems I do not adopt Wallace s testimony that Uding said the Employer would solicit employees priorities as an initial phase of compiling an employee handbook This elimi nates a critical element of General Counsels case The account that I have adopted at most, reflects that a handbook, if issued, would contain the Employers exist ing personnel practices and employee benefits I consider it straining to ascribe the sinister meaning requested by General Counsel to Uding s handbook statements Neither the question Uding was asked, nor his answer in my opinion rose to the level of seeking suggesting, or inducing the nature of, or solutions to any employee problems There is no reliable evidence what ever that Uding questioned employees about their per ceived problems or solicited them for future presentation Simply stated, I conclude Uding, in effect, was asked what if anything would replace their union contract as a compendium of benefits rules and regulations and he answered that an employee handbook had served that purpose elsewhere Absent cogent evidence of the criti cal element of solicitation of grievances I am unable to conclude the Employer committed the alleged violation involving an employee handbook On all the foregoing I find there is insufficient evi dence to sustain the allegations of complaint paragraphs 5(a)(i-iv) and shall recommend their dismissal D The June Meetings Complaint paragraphs 5(b)(i-u) allege Uding again threatened to reduce wages and also to institute a griev ance procedure, both contingent on election results 1 Wage reduction threat The alleged June threat to reduce wages is based on Rance s testimony that Uding conducted another em ployee meeting on June 4 or 5 and that what Uding said was similar to the first one (April meeting) but was worded a little different In relevant part, Rance 14 Interestingly no effort was made to allege any part of Biehl s memorandum constitutes a violation of the Act COPLAY CEMENT CO 315 claimed Uding said If we voted for the Boilermakers he d have to take right off the top so that they could be comparative (sic) a couple of years down the road Employee D Zinsmaster was presented as a General Counsel witness apparently to provide a meaningful background to this part of Rance s testimony Zinsmaster testified Uding used the phrase ground zero 15 during a discussion among Uding and employee D Brady and G D Haas shortly after Uding conducted his large group employee meeting in June According to Zinsmaster, who approached the other three men in the midst of their conversation, Uding said, 111 tell you what, I know what happens if you do go with a union We re going to start at ground zero Zins master asserted that Brady asked, What do you mean by ground zero starting at minimum wage? and Uding replied, No Not quite that far Brady and Haas testified that Brady asked Uding whether his reference to Square One during the main meeting with employees meant that they would return to minimun wage and that Uding answered in the nega Live 16 Uding did not remember whether he said anything about minimum wage However, he recalled that, in June, an employee asked him to explain what he meant by his ground zero expression in April (see sec II C, above) Uding testified he explained in June as he had in April, that the attitude of union officials at the Pennsyl vania locations toward operating under the implemented work conditions made it likely the parties would have to go back to the beginning in negotiating terms of a new contract Uding denied he used the phrase Square One in June I find Uding s description of this event more reliable than Rance s for the various reasons previously stated concerning testimonial reliability As earlier indicated, I find Rance s testimony punctuated with flaws His testi mony concerning the June threat of wage reduction does not even conform to the allegation Rance testified that Uding s statement was conditioned on a vote favorable to Lodge D485, but the complaints allegation avers the alleged threat was to be carried out if the employee voted for either Lodge D485 or IWNA Such a deviation between pleading and proof is serious It is not easily correctible by the oft used motion to conform pleadings to proof That motion relates to such minor matters as errors in dates, etc I view the difference between the al legation of threatened wage reduction in June and the supporting testimony as one of critical substance I find Uding s account, which I adopt, contains no un lawful threat of wage reduction In essence, he repeated what he told the employees in April about the Employ er s need to be competitive Even if I were to adopt Rance s recollection that Uding also said he d have to take right off the top that statement has no proscribed meaning 15I have found the quoted phrase was used by Uding at the April meeting See sec II C above Rance recalled Uding used the phrase page one in June To avoid further confusion I shall focus only upon the thrust of General Counsels posthearing argument See G C Br p 5 16 Interestingly the complaint only alleges the square one phrase as a violation in April No such allegation is made about June I conclude the later discussion among Zinsmaster, Brady, Hass, and Uding fails to establish an unlawful taint to Uding s June comments regarding wages First, Uding candidly gave his explanation of the term ground zero to Brady I have found his explanation plausible and lawful Second, neither Zinsmaster's nor Brady s testimony necessarily bears the threatening or coercive impact sug gested by General Counsel In posthearing brief, General Counsel argues that Uding s statement that his remarks do not mean wages would go quite ( as) far as mini mum wage signifies Uding is thus threatening employ ees that although their wages might not drop as far as minimum wage they would drop if either union won the election (G C Br 5 ) The General Counsels quoted assertion is speculative In fact there is contradictory evidence on this issue Al though Zinsmaster and Brady claimed Uding connected his minimum wage remark to the election outcome, Haas explicitly repudiated such an attribution Haas was asked, Now, did you ever hear Mr Uding state that if there was a union elected there would be a cut in wages' Haas answered, No (Tr 239) Haas was then asked to describe what Uding said to him and Brady Haas re sponded, The main thing I guess I remember about it was the reference to Square 1 Mr Uding had made a reference to Square 1 as far as negotiations goes during the main meeting and Dave [Brady] asked him what he meant by Square 1, was that minimum wage or what, and Mr Udmg said no Haas was then asked, Do you recall anything else about that conversation with Mr Uding and Mr Brady? Haas answered, Just general things I remember him [tiding] talking about a lot of- we were there quite a while As far as specifics that kind of stuck in my mind because I had some question about what he meant about it too (Tr 240 ) In my view the totality of Haas testimony shows that Haas heard Uding say nothing that connected a wage cut to the election outcome and that Uding merely reiterated his explanation to the effect that a return to beginning of negotiations would be what the union leaders would re quire 2 Promise of grievance procedure Complaint paragraph 5(b)(n) alleges Uding promised in June to institute a grievance procedure if the employ ees would not select either IWNA or Lodge D485 as their bargaining agent Rance testified concerning this allegation He claimed he heard Uding tell the employees in June that If (they) vote for neither (union), we can represent you the best we know how We can come around and get your prior ities and draw up our policies from there General Counsel contends that this testimony of Rance proves Uding impliedly promised a grievance procedure/ mechanism as alleged when viewed together with cer tarn of Newell s testimony Newell s account is somewhat different Newell re called that Uding, in June, was asked by an unidentified employee for something in black and white so they could know more about what would happen once the 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union is voted out According to Newell, Mr Uding stated that the first thing that would take place once the union was voted out, there would be an employee hand book made up, and it would be made up of priorities and concerns of the employees As earlier reported, Uding steadfastly maintained he repeatedly told the employees he could not promise them anything Some of the employee witnesses con firmed this Also Uding unequivocally denied he said anything regarding setting employees priorities I have extensively discussed the complaint allegation of the promise of an employee handbook in April (see sec II C above) I have also found that, in the credibil ity contest between Rance and Newell (on the one hand) and Uding (on the other) a fair assessment of their total testimony and demeanor has convinced me it is Uding s version of events that is the most reliable and trustwor thy To the extent my former comments, observations and conclusions on the handbook and credibility issues apply to the alleged June promise of a grievance proce dure they are incorporated by reference at this juncture Based on my earlier findings, I credit Uding s denial that he said the Employer would determine employees prior ities Indeed, Newell s direct examination testimony that Uding discussed priorities in June proved to be self con tradicted During cross examination Newell was shown notes he made contemporaneous with Uding s June 4 re marks Newell's notes stated, The first thing they would do with no union is ask employees about their priorities, but during cross examination Newell disclaimed that Uding was that precise Thus Newell testified No, that s not exactly what he [tiding] said that s what I wrote down to remind me of the question that was asked Newell s additional testimony on this issue is an uncan ny replay of the credited account of the alleged April promise of an employee handbook Newell finally ac knowledged an employee said he would like to see something in black and white they wanted to know what would happen with, you know, referring to what would be done without a union (Tr 136-137 ) The state of the entire record as relates to testimonial reliability and both the allegation of the April handbook promise and the June promise of grievance procedure" persuade me that Uding did not promise a grievance pro cedure mechanism in June E Conclusion On all the foregoing, I find the Employer did not engage in any of the unfair labor practices alleged in par garaph 5 of the complaint III THE REPRESENTATION CASE A The Objections As indicated above in the statement of the case sec tion both labor organizations filed objections to the elec 17 Significantly Newell s direct testimony that a handbook with em ployee priorities was offered by Uding in June is not explicitly alleged as a violation tion Those objections encompass and are coextensive with each unfair labor practice allegation I have found the Employer committed none of the al leged unfair labor practices "I My overall findings and conclusions regarding the unfair labor practice allega tions show there is no reliable evidence to sustain any of the objections Accordingly, I find there is no merit to any of the objections I shall recommend they be over ruled B The Challenged Ballots 1 The facts IWNA and Lodge D485 challenged the ballots of J Bennett, B Brady A Mee, M Perrone, G Pomaso (or Pomasi) and P Roberson on the ground they are tempo rary summer employees The Employer contends the challenges to these ballots should be overruled because the six employees share a sufficient community of inter est with other unit employees to render them eligible voters The parties waived presentation of testimonial evi dence regarding the challenged ballots Instead, they sub mitted this issue on stipulated facts 19 and agreed their stipulation contained all the relevant facts on which the challenged ballots may be resolved 20 Based on the submitted facts I find the following At least during the summers of 1983 through 1987, the Em ployer hired individuals who worked during the summer season Preference was given to relatives of current em ployees These summer employees were hired during that time of year (generally end of May through August) because it is the Employers busiest work season These employees were used, in part as vacation relief person nel for regular bargaining unit employees The summer employees typically are college students but there is no connection between their job assignments and education level They are hired into entry level posi tions, and receive the rate of pay designated for that level (bracket 1) The summer employees work under the same supervi sors as undisputed bargaining unit employees and per form job tasks identical to regular bracket 1 entry level employees Those tasks include such things as cleanup loading unloading spillage, and raw delivery of materi al The summer employees were required to pay union initiation fees and dues when a union security agreement was in effect However since the expiration of the most recent collective bargaining agreement between Lodge D485 and the Employer on June 24 1984 (see sec II A above) no such requirement existed and no evidence or stipulation was offered to show to what extent if at all 19 In its posthearing brief IWNA urges me to find objectionable con duct based on violations of the Act neither alleged in the complaint nor explicitly in its objections E g see p 8-13 IWNA brief I decline to do so 19 The stipulation appears at pp 11-20 of the transcript 20 In addition E Exh 1 was received as a summary of hiring of summer employees 1983-1987 COPLAY CEMENT CO 317 any summer employee paid union dues or initiation fees after June 24, 1984 The summer employees always have been required to undergo a probationary period The probationary re quirement recurs each summer Until the Employer s September 1986 implementation of new employment conditions (see sec II, A, above), the probationary period was 30 days Since September 1986, the proba tionary period has been 90 days Fringe benefits such as group health and life insurance and holidays are available to summer employees only after completion of their probationary period The summer employees do not accrue vacation benefits They do receive credits toward the Employers pension plan but do not work enough time in any year to accrue suffi cient credits to establish a vested right in the pension plan The summer employees are entitled to bereavement pay and shift premiums, but there is no evidence any re ceived same When hired, there is no understanding between the summer employees and the Employer that they will con tinue their employment at the end of the summer on a regular full time or a regular part time basis However at summer s end the summer employees are evaluated as any other entry level employee and those who have per formed well and have a good work record are encour aged to return the following summer, and those who have not performed well are not so encouraged The summer employees participate in the Employer s overtime equalization program That is, they share avail able overtime equally only within their labor classifica tions, but do not work overtime available in other job classifications until after such overtime has been offered to the regular full time bargaining unit employees Finally the documentary evidence (E Exh 1) shows the following recurring hirings of summer employees 21 J Pasquale-1983 and 1985 T Decker-1983 and 1985 J McMillen-1985 and 1986 B Biehl-1985 and 1986 D Pugh-1985 1986 and 1987 B Brady-1985 1986 and 1987 K Wolford-1985 and 1986 J Bennett-1986 and 1987 Thus of the six employees whose ballots were chal lenged only two J Bennett and B Brady returned to work during the summer of 1987 after having worked for the Employer at least one previous summer Both Bennett and Brady also had worked in 1986 and Brady worked also in 1985 Neither of them worked under the terms of any collective bargaining agreement 2 Analysis I conclude the six individuals whose ballots were chal lenged were ineligible to vote in the June 16, 1987 repre sentation election The relevant facts reflect (using the stipulated words) that the persons employed as summer help are typical 21 There were no summer employees hired in 1984 ly" college students hired generally' from the end of May through the end of August Moreover, they were hired to supplement the work force during the Employ er s busy season and as vacation replacements No evi dence was presented to show any of the six challenged voters fell into any different category Thus, I conclude that these individuals appropriately are characterized as students who are summer seasonal employees The applicable decisional precedent regarding inclu sion of such persons in bargaining units is clear In Pacif is Tile & Porcelain Co, 137 NLRB 1358, 1365 (1962), the Board declared Under our policy students employed during summer vacation periods are considered tempo rary employees and are excluded from bargaining units Nonetheless it is possible that student employees may be included in a bargaining unit if the circumstances of their employment show they have a community of inter est with the acknowledged unit employees with respect to wages, hours, and working conditions See Dick Kelchner Excavating Co 236 NLRB 1414, 1415 (1978), where two students who worked full time during the summer, on holidays and occasional Saturdays in a situa tion where the students received the same wage rate and worked under the same supervision as unit employees and participated in a Christmas bonus program were in cluded Compare to Town & Country Supermarkets, 244 NLRB 303 314 (1979) where an individual (S David son) worked exclusively during the summer and attended school the rest of the year was excluded The Board ex cludes persons who work as summer seasonal unless their employment is regular, of substantial duration and they are treated the same as other unit employees (Shady Oaks 229 NLRB 54, 55 (1977) ) The instant record shows only that the subject stu dents worked in the same jobs and under the same super vision as unquestioned unit employees at the time of the instant election The same conditions prevailed in the two summers immediately preceding the election This condition prevailed because the Employer unilaterally extended the probationary period from 30 to 90 days That extension made it impossible for the students to ac quire rights to share in the fringe benefits available to the other employees in their job classifications If a student returned to work during the next succeeding summer the probationary requirement again needed to be met Thus the record provides no basis for a conclusion that the subject students have any community of interest with unit employees apart from their shared supervision and job tasks On the state of this record commonality of supervi sion and nature of work is not enough to establish the requisite community of interest I find the following fac tors militate against a conclusion that the students had such a sufficient community of interest with unit employ ees as to warrant the students inclusion in the bargaining unit (a) The instant students did not have an expectancy of continued employment They started their work with no understanding about future employment An invitation to return to work the following summer was dependent on a satisfactory job evaluation at the completion of current 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD summers work This shows the renewal of the job op portunity was speculative When such absence of expect ancy of continued employment is coupled (as in this case) with the lack of participation in the fringe benefits enjoyed by unit employees the Board finds absent the community of interest element Georgia Pacific Corp 201 NLRB 831 (1973) and Hygeia Coca Cola Bottling Co 192 NLRB 1127 1129 (1971) (b) There is no evidence that any of the individuals whose ballots were challenged continued to work on any basis during the school year Instead each challengee en tirely stopped working for the instant Employer at least until the next summer Thus there is no evidence here of employment continuity the Board considers tends to demonstrate the requisite community of interest (See Giordano Lumber Co 133 NLRB 205, 207 ( 1961), and Sandy s Stores, 163 NLRB 728, 729 (1967) ) In Photo Drive Up 267 NLRB 329, 348-349 (1983) the Board let stand its judge s observation from Melba Thea tre 260 NLRB 18 22 (1982) that The determinative criteria as to whether students are to be included in a unit appears to be the regularity of their part time em ployment which may be as little as one day per week Century Moving & Storage 251 NLRB 671, 681 (1980) and cases cited therein In Greg Bunker, the Board of firmed its judges exclusion of an employee who had worked two summers, plus one Christmas vacation and fully intended to return to work as a permanent employ ee the next summer The affirmance left undisturbed the judge s conclusion that working successive summers to gether with one Christmas vacation did not establish the kind of regularity of part time employment the Board considers justifies inclusion in a bargaining unit In the instant case there is even less support than in Greg Bunker to include the six challenged voters The most the record shows is that two of them Bennett and Brady worked two or more summers (including that in which the instant election was conducted ) and after the expiration of the most recent collective bagaining agree ment 22 In my view the bare showing that some students worked more than one summer does not suffice to con clude the challengees enjoyed the degree of regular em ployment to support a claim they had a community of interest with undisputed bargaining unit employees I find the facts of Fisher Controls Co 192 NLRB 514 515 (1971), strikingly similar to the instant case In Fisher, as here students ( 1) were hired during the summer to fill in for vacationing employees and to aug ment the work force in jobs required by the employer s increased seasonal activity (2) were given no definite commitment for reemployment during succeeding sum mers (3) received wages comparable to full time em ployees, and (4) did not receive all the fringe benefits of the full time employees On those facts the Board found the summer students were temporary employees They were excluded from the unit 22 J Pasquale T Decker J McMillen D Pugh B Biehl and K Wolford also worked two or more summers However because there is no evidence any of these individuals worked any time other than the summers indicated on E Exh I or was a student employee at the time of the election I find nothing in their work history that provides evi dence of employment regularity Against the above described backdrop I have weighed the evidence that shows the student summer employees were required to pay union initiation fees and dues were subject to the contractual probationary period and enti tled to a variety of fringe benefits and that one unidenti feed student employee used the grievance procedure at some unidentified time However none of these condi tions were operative since June 24, 1984, the expiration date of the most recent collective bargaining agreement This was two summers before the instant election On the date of the instant election the employees were working without a union contract and under terms of employment unilaterally implemented by the Employer and vastly different from the contractual conditions in respects material to resolution of the challenged ballots Hence, I conclude the evidence of conditions as they ex isted under an extant contract are of little probative value on the issue at hand To utilize the former facts as dispositive of the challenged ballots is conjectural pre sumptuous and improper It is the reality of employment conditions as they actually existed for the six challengees at election time, which must be the guideposts for deter mining those employees status On all the foregoing I find each of the six employees whose ballot was challenged was a temporary student employee not entitled to inclusion in the bargaining unit I shall recommend the challenge to each such ballot be sustained C Recommended Disposition of the Representation Case On the foregoing discussion of the objections and chal lenged ballots I recommend l The objections filed by IWNA be overruled 2 The objections filed by Lodge D485 be overruled 3 The challenges to the ballots of J Bennett B Brady A Mee M Perrone G Pomaso (or Pomasl) and P Roberson be sustained 4 A runoff election be conducted with voters having the choice of voting either for Lodge D485 or no union representation 23 The election should be conducted at a time deemed appropriate by the Regional Director for Region 25 of the Board On the above findings of fact and on the entire record in the case I make the following CONCLUSIONS OF LAW 1 Coplay Cement Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Independent Workers of North America and Local Lodge D485 , International Brotherhood of Boilermakers AFL-CIO and the International Brotherhood of Boiler makers are labor organizations within the meaning of Section 2(5) of the Act 3 All production and maintenance employees, store room clerks chemical analysts and control room opera 23 The tally of ballots reveals that IWNA did not receive a sufficient number of votes to retain that labor organization as a choice in a runoff election See NLRB Field Manual Sec 11350 1 COPLAY CEMENT CO tors at the Employers Logansport, Indiana facility, but excluding office clerks, purchasing and payroll clerks, professional employees and supervisors as defined in the Act constitute a unit appropriate for collective bargain ing within the meaning of Section 9(b) of the Act 4 The Employer did not engage in any of the unfair labor practices alleged in the complaint 5 There is no merit to any of the election objections filed by IWNA and by Lodge D485 6 There is merit to the challenges to the ballots of J Bennett, B Brady, A Mee, M Perrone, G Pomaso (or Pomasl), and P Roberson On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed24 24 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the ORDER 319 1 The complaint in Case 25-CA-18724 is dismissed in its entirety 2 The objections filed by IWNA to the June 16 1987 election in Case 25-RM-538 are overruled 3 The objections filed by Lodge D485 to the June 16, 1987 election in Case 25-RM-538 are overruled 4 The challenges in Case 25-RM-538 to the ballots of J Bennett, B Brady, A Mee M Perrone G Pomaso (or Pomasl), and P Roberson are sustained 5 Case 25-CA-18724 is severed from Case 25-RM- 538, and the representation case remanded to the Region al Director for Region 25 for action consistent with the recommended disposition (see sec III C above) of the representation case Board and all objections to them shall be deemed waived for all pur poses