Petition — Abbott Laboratories v. National Labor Relations Board

Supreme Court brief1976

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IN THE JUN 16 1976

Suprene Court of the United States

CHAEL RODAK, JR., CL

OCTOBER TERM, 1975 + —----—— ERK

ABBOTT LABORATORIES, ROSS LABORATORIES DIVISION,

Petitioner,

NATIONAL LABOR RELATIONS BOARD

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Of Counsel: JOSEPH D. LUKSCH

MICHAEL J. BARTLETT

VEDDER, PRICE, KAUFMAN, PETER H. KIEFER

KAMMHOLZ & Day 1750 Pennsylvania Ave., N.W.

1750 Pennsylvania Ave., N.W. :

Washington, D.C. 20006 Washington, D.C. 20006

WILLIAM W. MckKirrrick

VEDDER, PRICE, KAUFMAN 115 South La Salle Street

& KAMMHOLZ Chicago, Illinois 60603

115 South La Salle Street .

Chicago, Illinois 60603 Attorneys for Petitioner,

Abbott Laboratories,

Ross Laboratories Division

WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001

Jurisdiction

Questions Presented

Statutes and Regulations Involved

Statement Of The Case

A. Proceedings Before The National Labor Rela-

tions Board

1. The Representation Proceeding -..................

a. The Union’s Misrepresentation ..............

b. Coercive Conduct Affecting The Results

i ETERS ATE er

2. The Unfair Labor Practice Proceeding....

B. The Decision Of The Court Of Appeals ............

Reasons For Granting The Writ

Conclusion ..............

Appendix A

Appendix B sniesecapadienianinsdmnnsitdaiibdiitianiangiaidaie

SEE GD. ccretsinninensienniitmnnnns

REE TD cctieinnen

Appendix E

BE stecindnciiensiamnnien

Appendix G .....

Appendix H

Appendix I

Page

~~ CO nN WN

CITATIONS

Cases:

Allis-Chalmers Mfg. Co., 176 NLRB 588 (1969) -...

Celanese Corp. of America V. N.L.R.B., 279 F.2d

204 (7th Cir. 1960), vacated and remanded, 365

U.S. 297 (1961), enforcement denied on re-

mand, 291 F.2d 224 (1961), cert. denied, 368

U.S. 925 (1961) ........

Central Hardware Co. Vv. N.L.R.B., 407 U.S. 539

(1972) socialite eta iataaliies cicaciiine ec lia acai

Gallenkamp Stores Co. v. N.L.R.B., 402 F.2d 525

(Othe Clr. 19GB) .....-ncncccoco-s

Golden State Bottling Co. v. N.L.R.B., 414 US.

I i ctl eanitniallineatden

Graphic Arts Finishing Co., Inc. V. N.L.R.B., 380

Uk EG

Hollywood Ceramics Co., Inc., 140 NLRB 221

SEIT dhivcie cheseeucniisineiipdintaetiinenaiadeciiidiaaalamaahiaaehiaiinin

Home Town Foods, Inc. V. N.L.R.B., 379 F.2d 241

ee re

Linn v. United Plant Guard Workers, 383 U.S. 53

ES Seen cemenseenr a arenes

Mobil Oil Corp. v. F.P.C., 417 U.S. 283 (1976) ......

National Cash Register Co. Vv. N.L.R.B., 415 F.2d

BE MI <.scnticnenienenenabientainataneliadiatietintiabienties

N.L.R.B. Vv. Bata Shoes Co., 377 F.2d 821 (4th Cir.

1967), cert. denied, 389 U.S. 917 (1967) _...........

N.L.R.B. v. Bill’s Institutional Commissary Corp.,

418 F.2d 405 (5th Cir. 1969) ................................

N.L.R.B. v. G. K. Turner Associates, 457 F.2d 484

ft : F eee

N.L.R.B. Vv. Houston Chronicle Publishing Co.,

gn ES ae

N.L.R.B. v. Indiana and Michigan Electric Co., 318

I i i tcc

N.L.R.B. v. Maine Sugar Industries, Inc., 425 F.2d

RR earner

Ill

CITATIONS—Continued

Page

N.L.R.B. v. Millard Metal Service Center, Inc., 472

F.2d 647 (1st Cir. 1973) —....... 16, 20

N.L.R.B. Vv. Mr. Fine, Inc., 516 F.2d 60 (5th Cir.

SIRI aT Se cea a 15, 16, 17, 18

N.L.R.B. Vv. Smith Industries, Inc., 4038 F.2d 889

(5th Cir. 1968) 17, 20, 23

N.L.R.B. Vv. Urban Telephone Corp., 499 F.2d 239

I 23

N.L.R.B. Vv. Walton Mfg. Co., 369 U.S. 404 (1962)... 22

Thiem Industries, Inc Vv. N.L.R.B., 489 F.2d 788

i 16

Universal Camera Corp. Vv. N.L.R.B., 340 U.S. 474

TS a. i ae 15, 22

Winchell Processing Corp. Vv. N.L.R.B., 451 F.2d

et | 20

Zarn, Inc., 170 NLRB 1135 (1968) _.. 18

Statute:

National Labor Relations Act, 61 Stat. 136, 29

U.S.C. 151, et seq. ....3, 11, 12, 21, 22

Regulations:

National Labor Relations Board Rules and Regu-

lations 102.69(f), 29 C.F.R. 102.69(f) 0. 3,17

Miscellaneous:

Fortieth Annual Report of the National Labor

Relations Board 21

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No.

ABBOTT LABORATORIES, ROSS LABORATORIES DIVISION,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD

| PETITION FOR A WRIT OF CERTIORARI TO THE

| UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Petitioner, Abbott Laboratories, Ross Laboratories

Division (“Abbott”), petitions for a writ of cer-

tiorari to review the judgment of the United States

Court of Appeals for the Fourth Circuit entered on

March 31, 1976, enforcing an order of the Nationai

Labor Relations Board.

OPINIONS BELOW

The opinion by a panel of the court of appeals

(Circuit Judge Winter and Associate Justice Clark,

Supreme Court of the United-States, retired, sitting

by designation; Senior Circuit Judge Bryan dissent-

ing) is not yet officially reported but is reproduced

in Appendix A, infra, pp. la-17a. The Decision and

Order of the National Labor Relations Board in the

unfair labor practice case is reported at 217 NLRB

No. 117, and is set forth herein, infra, at pp. 19a-34a

of Appendix C.

The National Labor Relations Board’s Decision

and Order and Supplemental Decision and Certifica-

tion of Representative in the underlying representa-

tion case, together with the Regional Director’s Re-

port and Supplemental Report on Objections, and the

Hearing Officer’s Report on Objections, are unreport-

ed but are reproduced herein in Appendices F, D, H,

G, and E, respectively at pp. 35a-93a, infra.

JURISDICTION

The judgment of the court of appeals was entered

on March 31, 1976 (App. B, p. 18a).’ Prior to the

entry of judgment, a suggestion for rehearing in banc

and a request for a poll was made sua sponte within

the court. A majority of the judges eligible to vote

voted to deny rehearing in banc (App. A, p. 17a).

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Board and the court below ap-

plied an erroneous standard for evaluating the im-

pact of union campaign propaganda upon employee

1 Reference to the Appendices to this Petition are desig-

nated “App. »P. ba

free choice in upholding an election where the union

made deceptive and misleading statements regarding

its bargaining accomplishments.’

2. Whether the court of appeals grossly misapplied

the substantial evidence test in upholding an election,

which the union won by a single vote, in view of

overwhelming evidence that employees were threat-

ened with violence if they did not support and vote

for the union and uncontradicted evidence that at

least one threatened employee voted for the union

against his wishes.

STATUTES AND REGULATIONS INVOLVED

The relevant provisions of the National Labor Re-

lations Act, as amended, 61 Stat. 136, 29 U.S.C. 151,

et seq. (“the Act’), and the National Labor Rela-

tions Board’s Rules and Regulations are set forth

in Appendix I, infra, pp. 94a-95a.

2 In addition, the following subsidiary and related question

is presented:

Whether the Board and the majority of the court below

denied Abbott due process of law by refusing to grant a

hearing on Abbott’s objection to the deceptive and mis-

leading misrepresentations perpetrated by the union just

prior to the election.

Should Abbott’s position be accepted with respect to the prin-

cipal question, the court may also deem it appropriate to re-

view the subsidiary question. In order to preserve Abbott’s

position with respect to the latter issue, it is specifically ad-

verted to herein. ‘

STATEMENT OF THE CASE

A. Proceedings Before The Naitonal Labor Relations Board

1. The Representation Proceeding

On July 20, 1973, the Board conducted an election

among a unit of production and maintenance employ-

ees at Abbott’s Altavista, Virginia plant, pursuant to

a petition filed by the Union.’ The results of the elec-

tion, after challenges were resolved, were 22 votes for

and 20 votes against the Union (App. F, p. 64a).

Abbott filed timely objections to the election on

July 27, 1973, contending, inter alia, that during the

critical preelection period * (1) the Union distributed

a letter, dated July 17, 1973, to Abbott employees,

which misrepresented its bargaining relationship with

and achievements on behalf of employees at a nearby

plant, and which was designed to mislead Abbott

employees into stpporting the Union, and (2) the

Union coerced and intimidated Abbott employees with

threats of physical violence (App. H, pp. 74a, 85a).°

* Textile Workers Union of America, AFL-CIO.

* The Union’s petition for election was dated April 13, 1973.

Thereafter, Abbott and the Union entered into an election

agreement defining the scope of the unit in which the election

was to be held and sett’ng an election date of July 20, 1973.

This agreement was approved by the Board’s Regional Di-

rector on May 22, 1973 (App. H, pp. 73a, 74a, n. 2).

5’ Abbott raised several other objections to the conduct

affecting the results of the election and to the conduct of the

election itself. However, the panel majority of the court

below refused to disturb the Board’s determination that those

objections were not sufficient to invalidate the election (App.

A, pp. 3a-5a), and such objections are not at issue here.

a. The Union’s Misrepresentation.

The Union’s letter to Abbott emplof*™s dated July

17, 1973, included the following statement which was

set forth therein in boldface caps (App. H, p. 85a).

WHY DOESN’T THE COMPANY TALK

ABOUT MERCK CHEMICAL COMPANY,

INC. IN ELKTON, VIRGINIA. THEY ARE

IN THE SAME INDUSTRY AS ROSS. WHY

DON’T THEY TELL YOU WE HAVE JUST

NEGOTIATED A SUBSTANTIAL WAGE IN-

CREASE, IMPROVEMENT IN INSURANCE,

IMPROVEMENT IN PENSIONS, HOLIDAYS,

ETC., ALL OF THIS WITHOUT A STRIKE.

THE REASON THEY DON’T WANT TO

TALK ABOUT THIS IS BECAUSE IT

DOESN’T FIT INTO THEIR PATTERN OF

TRYING TO DIVIDE AND SCARE.

During the ex parte investigation of the objections

to the election conducted by the Board’s Regional Di-

rector, Abbott presented the following evidence, which

it offered to prove at a subsequent hearing, regarding

the Union’s July 17 letter: (1) Merck Chemical Com-

pany has plants located throughout the United States

which employ several thousand persons. All Merck

production and maintenance employees (the employee

unit sought by the Union in the instant case) are

represented either by the Oil, Chemical and Atomic

Workers (“OCAW’’) or the International Chemical

Workers Union (“ICWU’’). The ICWU represents the

325 production and maintenance employees at

Merck’s Elkton plant. The only Merck employees

represented by the Union are 33 clerical and tech-

nical personnel at the Elkton plant. (2) The then

recently negotiated Merck master contract covered

some 3,000 employees and was the product of nation-

wide coordinated bargaining between Merck, the

OCAW and the ICWU. The Union, while “officially”

a participant in coordinated bargaining by virtue of

its representation of 33 office and technical employees

at Elkton, in fact, never acted as spokesman for the

unions and did not even attend a substantial number

of the bargaining sessions. (3) Abbott received a

copy of the Union’s letter on the afternoon of July

19, 1973—less than 24 hours before the election.

Based upon the foregoing facts, Abbott argued to

the Regional Director that the Union’s July 17 letter

constituted a material deception designed to mislead

Abbott’s employees into believing that the Union was

responsible for “substantial benefits” received by com-

parable production employees in the same industry at

the Merck plant. Abbott further contended that its

employees were not in a position to determine the

true and complete facts for themselves and that the

timing of the letter precluded Abbott from obtaining

the facts necessary to expose the Union’s deception.

The Regional Director issued a Report on Objec-

tions on September 26, 1973, in which he concluded

that the objected-to language contained in the Union’s

letter did not constitute a misrepresentation since

nothing stated therein was “false as regards the ex-

istence or the quality of benefits claimed,” nor was

it a misstatement of fact that such benefits “were

obtained without a strike.” Accordingly, the Regional

Director recommended that Abbott’s objection to the

Union’s July 17 letter be overruled (App. H, p.

86a).°

*The Regional Director also recommended that all other

election objections be overruled and that the Union be certi-

fied by the Board (App. H, p. 93a).

Thereafter, Abbott filed timely exceptions to the

Regional Director’s Report. On January 16, 1974,

the Board issued a Decision and Order in which it

ordered a hearing on certain of Abbott’s objections

but adopted the Regional Director’s rulings and

recommendations with respect to Abbott’s objection

to the Union’s letter of July 17 (App. F, p. 66a).

b. Coercive Conduct Affecting The Results Of The Election.

In its January 16, 1974, Decision and Order, the

Board found that Abbott’s objection concerning

threatened preelection violence (supra, p. 4),

raised a material issue of fact which could best be

resolved in a hearing (App. D, p. 36a; App. F, p.

66a). During the hearing held on March 6-8, 1974,

the following record evidence was developed with

regard to this objection.

Employee Frederick Tubbs testified that, on three

separate occasions during the election campaign,

Cecil Hall, another Abbott employee whose extensive

criminal record was known around the plant and who

characterized employees oppesed to the Union as

“vellow-bellied sons of bitches,” threatened him

(Tubbs) with violence if he did not support the

Union." Hall’s initial warning was made at a Union

* The Union’s organizational drive began at Abbott’s plant

in April 1978. Union vice-president Wayne Dernoncourt

testified that throughout the period preceding the election he

relied exclusively on several key employees, particularly

Cecil Hall, to promote the Union and organize the plant. Based

upon a statement furnished by Dernoncourt, the Regional

Director found in his Report on Objections that Hall was

“elected by pro-Union employees to be a ‘contact man between

the employees and [Union]’” (App. H, p. 76, n. 5). The

meeting held at Leesville Dam during May or June

1973. Hall asked Tubbs whether Tubbs was “for the

Union.” When Tubbs replied that he was, Hall stated

“if I [Tubbs] did not vote for the Union, he was

going to throw me in the lake.” The second threat

was made in early July, about two weeks before the

election, at a Union meeting held at Wayside Park.

Again Hall asked Tubbs if he was “still for the

Union,” and when Tubbs answered “yes,” Hall said,

“if you [Tubbs] don’t vote for the Union, I am going

to kick your ass.” * The third incident occurred about

Hearing Officer found that Hall was an active pro-Union ad-

vocate who attended most Union meetings; that Hall signed

a Union card and strongly urged other employees to sign

Union cards; that Hall functioned as one of the employees

selected to maintain frequent contact with the Union in order

to report organizational developments and receive instructions

with regard to setting up Union meetings and other related

campaign efforts; and that Hall, subsequently, served as a

Union observer at the election (App. E, pp. 47a-49a). Hall

testified that he circulated throughout the plant and actively

promoted the Union on almost every workday during the

course of the campaign. Moreover, several employee witnesses

also testified that Hall was recognized as the leader and chief

proponent of the Union movement within the plant. In spite

of this evidence, the Hearing Officer concluded that Hall’s

conduct during the campaign was not attributable to the

Union (App. E, pp. 50a-5la). Thereafter, in its Supplemental

Decision and Certification, the Board relied upon the Hear-

ing Officer’s credibility resolutions in overruling Abbott’s ob-

jection based on Hall’s conduct and found it unnecessary to

determine whether Hall’s conduct was properly attributable

to the Union (App. D, p. 37a, n. 2; see infra, p. 11, n. 10).

® Tubbs explained that the expression “kick your ass” meant

“get to you and work you over .. . they would beat you up.”

Tubbs further testified that he did not take Hall’s first com-

one week later at the plant while Tubbs was punch-

ing the time clock. At that time, Hall again reiter-

ated his threat to Tubbs by stating “if you [Tubbs]

don’t vote for the Union, I am going to kick your

ass.” (App. A, pp. 5a-6a; App. E, pp. 42-43a).° Tubbs

further testified that he was intimidated into voting

for the Union by Hall’s threats (App. A, pp. 1la-

12a).

ment seriously, but that Hall’s subsequent threats convinced

him that Hall meant what he said (App. A, pp. 6a, 12a; App.

E, p. 48a).

* During the Regional Director’s investigation of the ob-

jections, Tubbs denied that Hall had threatened him. Tubbs

explained at the hearing, however, that these denials were

inaccurate and had been provoked by the continuing harass-

ment of Hall and other Union supporters (App. A, pp. 15a-

16a). Moreover, Tubbs’ testimony at the hearing regarding

these threats was corroborated by the testimony of employees

Wayne Crews and Gerald Doss.

By contrast, Hall, in his previous affidavit to the Board,

denied ever threatening “to kick” Tubbs. At the hearing,

however, Hall never specifically disclaimed having made the

remarks attributed to him by Tubbs and admitted that he

told Tubbs at the Wayside Park meeting:

Fred, you are in a world of trouble because Jim is going

to kick you if you do and I am going to kick you if you

don’t [support the union]. (App. A, pp. 16a-17a; App.

E, p. 44a).

Hall, in his uncorroborated testimony, dismissed this occur-

rence as a mere jest and stated that he never “threatened”

Tubbs. Hall (attempting to reconcile the inconsistency be-

tween his affidavit and subsequent testimony) claimed that he

had related the above-quoted statement concerning his threat

“to kick” Tubbs to the Board investigator who took his affi-

davit and maintained that the investigator neglected to in-

clude the incident in Hall’s affidavit.

On still a fourth occasion prior to the election, Hall

threatened to kill or beat up another employee, Ger-

ald Doss, if Doss continued to participate in counter-

Union efforts. Doss testified that employee Wayne

Crews warned him that “he had better watch him-

self because Hall was out to get him.” Crews testi-

fied that this warning resulted from the following

statement—also relayed to Doss—which was made by

Hall to Crews as they observed Doss engage in

counter-Union activity:

. . . Cecil Hall spoke up and said I would like

to kill the son of a bitch [Doss]. Then he paused

for a second and said, no, he wouldn’t want to

kill him. I just would like to beat the hell out

of him. (App. A, p. 6a; App. E, p. 47a).

The Hearing Officer issued a Report on April 4,

1974, recommending that Abbott’s objection based on

Hall’s threats be overruled. The Hearing Officer con-

cluded on the basis of credibility that Hall made no

threatening statements to either Tubbs or Doss; that

Hall’s admitted remark to Tubbs at the Wayside

Park meeting “was made in jest and in such a pos-

ture had no effect upon the election”; that no “at-

mosphere of fear and coercion” existed prior to the

election; and accordingly, that the objection did “not

raise substantial and material issues with respect

to conduct affecting the results of the election” (App.

E, pp. 52a, 54a-55a).

Abbott filed timely exceptions to the Hearing Offi-

cer’s report with the Board, excepting to the Hearing

Officer’s findings in general and in particular to his

credibility resolutions disposing of the objection based

on Hall’s threats. On October 22, 1974, the Board

issued its Supplemental Decision and Certification

of Representative, finding that the Hearing Officer’s

rulings were free from prejudicial error and adopting

pro forma the Hearing Officer’s recommendation in-

cluding his credibility resolutions.** Accordingly, the

Board certified the Union as a bargaining represen-

tative of Abbott’s employees (App. D, p. 38a).

2. The Unfair Labor Practice Proceeding

In order to test the validity of the Board’s certifica-

tion, and to obtain appellate review of its election

objections, Abbott refused to bargain with the Union.

As a result, the Board issued a complaint on Decem-

ber 4, 1974, alleging that Abbott was engaging in an

unlawful refusal to bargain within the meaning of

Section 8(a) (5) and (1) of the Act (App. C, p. 19a).

On January 7, 1975, the General Counsel filed a mo-

tion for summary judgment with the Board, and on

January 13, 1975, the Board issued a notice to show

cause why the General Counsel’s motion for summary

judgment should not be granted (App. C, p. 20a).

Abbott subsequently filed a response to the notice to

show cause alleging, inter alia, that the Board wrong-

fully deprived it of a hearing on its objection which

raised the Union misrepresentation issue and that

the Hearing Officer’s rulings at the hearing regard-

ing its objection based on threats of violence were

erroneous, not supported by substantial evidence on

” As to Abbott’s objection based on Hall’s threats (Objec-

tion 1), the Board specifically stated:

In agreeing that Objection 1 should be overruled, we rely

upon the Hearing Officer’s credibility resolutions .. .

[and] find it unnecessary to reach the merits of the

alleged threats ... (App. D, p, 37a, n. 2).

the record as a whole, contrary to law, and consti-

tuted a denial of due process.

On May 9, 1975, the Board issued a Decision and

Order in which it granted the General Counsel’s mo-

tion for summary judgment. The Board predicated

this determination upon a finding that Abbott’s de-

fense raised issues that had been or could have been

litigated in the underlying representation proceed-

ing. Specifically with regard to those of Abbott’s ob-

jections—including its objection to the Union’s July

17 letter—which had previously been overruled with-.

out a hearing, the Board again stated that such ob-

jections did not raise issues warranting a hearing.

As to those of Abbott’s objections—including its ob-

jection based on threats of violence—upon which a

hearing had been held, the Board relied upon its prior

adoption of the Hearing Officer’s recommendations

and its finding that the Hearing Officer’s rulings

were “proper and not prejudicial” (App. C, pp. 24a-

25a).

B. The Decision Of The Court Of Appeals

Pursuant to Section 10(f) of the Act, Abbott

petitioned the United States Court of Appeals for

the Fourth Circuit to review and set aside the Board’s

Decision and Order. A majority of a panel of the

court below, with Senior Circuit Judge Bryan dis-

senting, denied Abbott’s petition and enforced the

Board’s order.

The panel majority upheld the Board’s re:usal to

conduct a hearing on Abbott’s objection which raised

the Union misrepresentation issue, stating, in this

regard, that the Board properly found that there

was no misrepresentation, since the Union had par-

ticipated in the claimed negotiations, and the failure

to disclose that other unions had played a dominant

role in the bargaining was not a material omission

(App. A, p. 3a, n. at 4a). With respect to Abbott’s

contention that threats of violence affected the re-

sults of the election, the majority stated that this

issue depended largely upon “the [hearing officer’s]

resolution of conflicting testimony based upon the

credibility of the witnesses,” and that “we cannot

say that the record fails to support his conclusion

that the election was not prejudiced by threats of

violence” (App. A, p. 10a). In this regard the ma-

jority stated further that “Tubbs was unable to say

. . . Whether his vote in the representation election

had been influenced [by Hall’s threats]” (App. A,

p. 6a).

Judge Bryan dissented from what he termed “the

Board’s amazing determinations,” which permitted

an “insufferable intrusion upon the privileges of

participants in a secret balloting” and resulted in

the Board’s “tolerat{ion of] a gross deprivation of

[this] right” (App. A, pp. lla, 12a, 17a).

In Judge Bryan’s view, “the election resulted in

so close a tally—22 to 20—in favor of the Union

that the misconduct of the Union’s electioneering de-

serves uncommon scrutiny,” and in reviewing the

record, he found that the Board’s resolution of the

preelection threats issue was not supported by “sub-

stantial evidence.” With specific reference to Hall’s

threats against employees Tubbs and Doss, Judge

Bryan stated that if either Tubbs or Doss had “been

allowed to express his preference in the election .. .

the result would have been a tie or defeat for the

Union” (App. A, p. lla). Judge Bryan determined,

on the basis of the record, that Hall’s threats had,

in fact, coerced Tubbs into voting for the Union and

that Tubb’s vote provided the Union’s margin of

victory (App. A, pp. 1la-13a).

That there was a denial of this right is squarely

proved by the following colloquy of the Hearing

Officer and Tubbs, who was browbeaten by Hall

to vote for the Union and thus gave victory to

the Union:

“HEARING OFFICER: Did Mr. Hall’s com-

ments affect the way you voted?

WITNESS: I believe so.

HEARING OFFICER: How would it affect?

WITNESS: It could have. Because I did not

know—I could not make my mind up. I was

seared.

* * eo =

“HEARING OFFICER: Let me return to the

point that I was trying to establish. Did the

comments that Mr. Hall made to you affect the

way you voted? Did you vote the way you in-

tended to vote when you went into the voting

place, the polling area?

WITNESS: No, sir, I did not.

HEARING OFFICER: You did not vote the

way you wanted to?

WITNESS: No, sir. I thought about it. He

done told me three times before the election that

he was going to do something to me and so I

started not to vote either way. I started not to

vote either way and then I figured that I had

to vote one way so I went in the booth and I

came out and then I went back in again and

made my mark.

a * * *

“HEARING OFFICER: Did Mr. Hall’s com-

ments to you threatening to throw you in the

lake and threatening to kick your ass, did that

affect the way you voted? Were you persuaded

to vote for his position?

WITNESS: Yes, I would say so.”

Judge Bryan further stated that the Board’s accept-

ance of Hall’s claim that he never “threatened”

Tubbs “rested upon the overworked refuge of the

Board: that it is the final judge of credibility.” Re-

jecting the majority’s acceptance of the “Board’s ipse

dixit” as incompatible with this Court’s decision in

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474

(1951), Judge Bryan concluded that the Board’s de-

cision was not supported by “substantial evidence”

and that, at a minimum, a new election was required

(App. A, pp. 18a, 17a).

REASONS FOR GRANTING THE WRIT

1. In determining that the Union’s letter of July

17 did not contain misrepresentations, the Board ap-

plied an erroneous standard for evaluating campaign

propaganda. Moreover, in enforcing the Board’s

Decision and Order which was predicated in part

upon the application of this erroneous standard, the

majority of the court below rendered a decision which

conflicts with the decisions of other courts of appeal

both in reasoning and result.

a. The ultimate issue before the Board was

whether the Union’s July 17 campaign propaganda

contained false or misleading statements which had

the effect of interfering with the employees’ free

choice of a bargaining representative. N.L.R.B. v.

Mr. Fine, Inc., 516 F.2d 60, 63 (5th Cir. 1975);

Thiem Industries, Inc. v. N.L.R.B., 489 F.2d 788,

790 (9th Cir. 1973). Prior Board and court deci-

sions agree in principle that, in making this deter-

mination, the Board should set aside election results

where the objected-to propaganda (1) contains a

material misrepresentation, {2) comes from a party

whic is in a position to know the true facts, and (3)

is distributed at a time which prevents effective re-

buttal before the election. Hollywood Ceramics Co.,

Inc., 140 NLRB 221, 223-224 (1962); N.L.R.B. v.

Mr. Fine, Inc., supra, 516 F.2d at 62; Thiem Indus-

tries, Inc. v. N.L.R.B., supra, 489 F.2d at 791 n. 3;

N.L.R.B. v. Millard Metal Service Center, Inc., 472

F.2d 647, 650 (1st Cir. 1973); N.L.R.B. v. Bata

Shoe Co., 377 F.2d 821, 829 (4th Cir. 1967), cert.

denied, 389 U.S. 917 (1967); cf. Linn v. United

Plant Guard Workers, 383 U.S. 53, 60 (1966).”

In finding that the Union’s July 17 letter did not

contain a misrepresentation, the Board deemed it un-

necessary to conduct a hearing or even administra-

tively consider the other factors bearing on the issue

of whether the objected-to language interfered with

employee free choice. This determination was clear-

1 The cases also indicate that such additional factors as

(1) whether the employees had independent knowledge of the

misrepresentation so that they could effectively evaluate the

propaganda, (2) whether the misrepresentation involved mat-

ters of importance to employees, and (3) the closeness of the

election vote, will also be considered in determining whether

there was interference with employees’ free choice.

12 Elementary concepts of due process, as well as the Board’s

own Rules and Regulations, require that a hearing be con-

ducted at some stage of the administrative proceedings when-

ever objections to an election raise substantial and material

issues of fact. N.L.R.B. v. Smith Industries, Inc., 403 F.2d

889, 892 (5th Cir. 1968); N.L.R.B. v. Bata Shoe Co., supra,

377 F.2d at 825; NLRB Rules and Regulations Section

102.69(f), 29 C.F.R. 102.69(f); cf. N.L.R.B. v. Indiana &

Michigan Electric Co., 318 U.S. 9, 28 (1943). Moreover, for

the purpose of evaluating an election objection to determine

whether a hearing is required, the Board and the courts are

bound to accept and credit all evidence proffered by the ob-

jecting party. N.L.R.B. v. G. K. Turner Associates, 457 F.2d

484, 487 (9th Cir. 1972) ; N.L.R.B. v. Smith Industries, supra,

403 F.2d at 892; N.L.R.B. v. Bata Shoe Co., supra, 377 F.2d

at 826.

Examination of the evidence (supra, pp. 5-6), in the con-

text of the criteria set forth above by which alleged misrepre-

sentations are to be evaluated, shows the following with re-

gard to the Union’s July 17 statement. (1) The Union’s rep-

resentations concerned a contract which it claimed to have

negotiated. Hence, the Union cannot deny that it was in a

position to know the true facts. (2) Abbott received a copy

of the Union’s le.ter less than 24 hours before the election

and, thus, was precluded from effectively rebutting the mis-

representations therein. (3) The representations involved

wages and benefits which were critical factors bearing on the

attractiveness and efficiency of the union as the employees’

representative. N.L.R.B. v. Mr. Fine, Inc., supra, 516 F.2d

at 64; Graphic Arts Finishing Co., Inc. v. N.L.R.B., 380 F.2d

893, 896 (4th Cir. 1967). (4) The tally of ballots was so

close—22 to 20—that a misrepresentation which affected a

single vote would have reversed the election results. (5) There

is no evidence in the record indicating that the employees

possessed independent knowledge of the Merck negotiations

bo which effectively to evaluate the Union’s representa-

ions.

Thus, if, as Abbott contends herein, the Board applied an

erroneous standard for determining whether the Union’s

letter contained misrepresentations, it must be concluded

that, at the very least, Abbott’s objection raised substantial

and material facts regarding the effect of the misrepresenta-

ly erroneous since the Board applied an unduly re-

strictive standard for determining whether a mis-

representation had occurred. Thus, the Board adopted

the Regional Director’s finding that the Union’s letter

did not contain a misrepresentation because nothing

stated therein was false per se.* However, language

need not be false to establish a misrepresentation. As

we show below, “half-truth” representations which

omit material facts and are inherently deceptive con-

stitute misrepresentations, and court decisions have

repeatedly rejected the Board’s attempts to limit the

misrepresentation standard to false statements.

In N.L.R.B. v. Mr. Fine, Ine., supra, the Fifth

Circuit rejected the conclusion of the Board’s Re-

gional Director that the union had not perpetrated

a misrepresentation because “the statement objected

to by the Company was accurate and did not incor-

rectly state the facts.” 516 F.2d at 62. The court

found that the union’s statements, concerning wage

rates which it had negotiated for employees at a

competing plant, were true on their face but were

nevertheless misleading and deceptive and, accord-

tions upon the employees’ free choice. Accordingly, the failure

to grant a hearing under these circumstances denied Abbott

due process of law.

18 Moreover, it is clear that in finding Zarn, Inc., 170 NLRB

1135 (1968), and Allis Chalmer’s Mfg. Co., 176 NLRB 588

(1969) inapposite to the instant case (App. H, p. 86a), the

Regional Director placed primary reliance upon the falsity

of the misrepresentations in those cases. See 170 NLRB

at 1135 where the Board emphasized the “misquotation” of

contract language and 176 NLRB at 588, 589, where the

Board termed the Union’s representations regarding benefits

“patently false” and “a substantial departure from the truth.”

ingly, the court concluded that such statements con-

stituted misrepresentations.* Rejecting the notion

that the misrepresentation standard embraces only

false statements of fact, the court stated (516 F.2d

at 61 n. 1):

The Company does not assert that the state-

ment is untrue; instead, it contends that it was

a half truth, inherently deceptive and mislead-

ing. The distinction is immaterial. A misrep-

resentation need not be false to establish un-

fairness in an election. Implications, omissions

or half truths from which false inferences may

be drawn, if such inferences have an impact on

election results, have been accorded the same

status as an outright untruth.

Accord: N.L.R.B. vy. Bill’s Institutional Commissary

Corp., 418 F.2d 405 (5th Cir. 1969), in which the

union distributed a letter to Bill’s employees in New

Orleans which included a wage scale taken from a

union contract covering comparable employees in

New York. The fact that the wage rates covered

New York employees was not disclosed. The Regional

Director found no misrepresentation had been made

since the reproduced wage scale was accurate. The

court disagreed, finding that the union, by failing to

%*Two days prior to the election therein, the union dis-

tributed leaflets to employees setting forth wage rates which

had been negotiated at a competitor plant. While the quoted

rates were accurate, the union did not disclose the job cate-

gories to which the rates applied. Finding that Mr. Fine’s

unit employees did not work in the job categories covered by

the higher wage rates paid at the competitor plant, the court

concluded that Mr. Fine’s employees were misled to believe

the union could achieve the higher rates for them. 516 F.2d

at 61-62. :

clarify the fact that the wage rates were applicable

in New York, misled Bill’s employees to believe that

the quoted rates were obtainable or in existence in

the New Orleans area. In reaching this determina-

tion, the court stressed that “claims involving wages

and benefits which are based upon unstated hypothe-

ses constitute a prima facie misrepresentation.” 418

F.2d at 407." Moreover, decisions of the courts of

appeals for the First, Seventh and Ninth Circuits

reflect the view of the Fifth Circuit that a misrepre-

sentation exists whenever a statement, albeit not

false per se, is deceptive or misleading because it is

based upon half truths or unstated hypotheses from

which false inferences may reasonably be drawn.

N.L.R.B. v. Millard Metal Service Center, Inc., supra,

472 F.2d at 648-651; N.L.R.B. v. Maine Sugar In-

dustries, Inc., 425 F.2d 942, 944-945 (1st Cir. 1970) ;

Celanese Corp. of America v. N.L.R.B., 279 F.2d 204

(7th Cir. 1960), vacated and remanded, 365 U.S.

297 (1961), enforcement denied on remand, 291 F.

2d 224 (1961), cert. denied, 368 U.S. 925 (1961);

Winchell Processing Corp. v. N.L.R.B., 451 F.2d 306,

* The Fifth Circuit reached the same result utilizing sub-

stantially identical reasoning in National Cash Register Co.

V. N.L.R.B., 415 F.2d 1012, 1016 (1969) (“‘[t]he form of

presentation employed by the Union is in and of itself mis-

leading’”); N.L.R.B. v. Smith Industries, Inc., supra, 408

F.2d at 894 (‘additional information as to job classifications

was necessary to make meaningful comparisons with other

competitors”); and N.L.R.B. v. Houston Chronicle Publish-

ing Co., 300 F.2d 273, 278 (1962) (campaign propaganda,

“regardless of [its] truth or falsity, which make[s] impossi-

ble an impartial test [of employee desires], [is] grounds for

invalidation of an election’’).

(9th Cir. 1971); Gallenkamp Stores Co. v. N.L.R.B.,

402 F.2d 525, 532-535 (9th Cir. 1968).

Despite these decisions of the Fifth, First, Seventh,

and Ninth Circuits which recognize misrepresenta-

tions based upon half-truths or unstated hypotheses,

the Board has continued in this case to limit applica-

tion of the misrepresentation concept to statements

of fact which are false per se, This conflict presents

an important issue of recurring significance in the

Board’s administration of representation elections un-

der the National Labor Relations Act which should

be resolved by this Court.”

b. The decision of the court below, which resulted

in adoption of the Board’s rationale limiting mis-

representation findings to statements which are false

per se,” conflicts with both the rationale and result

of the circuit court decisions cited above. In view of

1° The Board conducted 8,577 representation elections dur-

ing the past fiscal year in which 501,996 employees cast bal-

lots. The losing party filed objections to 1,230 of these elec-

tions. Fortieth Annual Report of the National Labor Relations

Board, pp. 228, 241 (G.P.O. 1975). A large proportion of

these objections involved claims that a misrepresentation had

affected the results of the election.

17 As stated supra, p. 6, the Regional Director found

that the Union had not perpetrated a misrepresentation and,

accordingly, he never reached the issue of whether the al-

leged misrepresentation was material. The Board adopted

the Regional Director’s finding on the misrepresentation is-

sue pro forma. Supra, p. 7. Thus, there is no basis in the

record for the statement of the court below that “[t]he Board

found that .. . failure to disclose the fact that other unions

played a dominant role in the bargaining was not a material

omission” (App. A, p. 3a, n. at 4a; see supra, pp. 12-13).

this conflict, it is submitted tha. the issue of whether

an inherently deceptive or misleading representation

—albeit not false per se—constitutes a misrepresenta-

tion which must be further evaluated to determine if

it interfered with an election, should be decided by

the Court.

2. The majority below grossly misapplied the re-

quirement that Board orders not be enforced unless

supported by substantial evidence “on the record

as a whole.” Universal Camera Corp. v. N.L.R.B.,

supra; Section 10(f), National Labor Relations Act.

In Universal Camera, this Court circumscribed its

review of the correctness of the courts of appeals’

application of the substantial evidence standard to

instances wherein “the standard appears to have been

misapprehended or grossly misapplied” (340 U.S.

at 491). Accord: Mobil Oil Corp. v. F.P.C., 417 US.

283, 310 (1974); Golden State Bottling Co. v.

N.L.R.B., 414 U.S. 168, 172-174 (1973); N.L.R.B.

v. Walton Mfg. Co., 369 U.S. 404, 408 (1962); see

Central Hardware Co. v. N.L.R.B., 407 U.S. 539,

548 (1972). As shown below, the majority in this

case contravened the teachings of Universal Camera

by abdicating its responsibility “of assuring that the

Board keeps within reasonable grounds” (340 U.S.

at 490); rather, the majority acted as a mere “judi-

cial echo of the Board’s conclusion” (340 U.S. at

491),

The court of appeals’ misapplication of the substan-

tial evidence standard is particularly obvious in the

majority’s treatment of the preelection threat issue.

First, the majority does little more than quote the

Hearing Officer’s analysis of the conflicting testimony

regarding this matter and concludes that “we cannot

say that the record fails to support his conclusion

that the election was not prejudiced by [Hall’s]

threats of violence” (App. A, p. 10a). Second, the

majority’s reliance upon patently erroneous and ir-

relevant facts wholly undermines its conclusion that

substantial evidence supports the Board’s determina-

tion. Thus, the majority stresses the Hearing Offi-

cer’s finding that Hall was not the Union’s represen-

tative (App. A, p. 10a), and its own finding that

Tubbs was unable to recall whether his vote had been

influenced by Hall’s threats (supra, p. 13). How-

ever, since the Board, in adopting the Hearing Offi-

cer’s recommendations, never reached the issue of the

Union’s responsibility for Hall’s actions (App. D, p.

87a, n. 2; see supra, p. 11, n. 10), the issue was not

properly before the court and, therefore, totally irrele-

vant in determining wether the Board’s decision was

supported by substantial evidence.” In addition, the

majority’s error in citing Tubbs’ inability to state

whether his vote had been coerced (App. A, p. 6a)

is highlighted in‘ Judge Bryan’s dissent (App. A, pp.

lla-12a; supra, p. 13-15).

Moreover, Judge Bryan’s dissent strongly suggests

that the majority, in dismissing the matter of Hall’s

coercion “as merely a matter of credibility” and en-

dorsing the Hearing Officer’s credibility resolutions,

failed to make an independent examination of the

Hearing Officer’s “amazing determinations”—subse-

In any event, that Hall’s conduct was properly attribut-

able to the Union is established by other courts’ rulings in

similar situations. See, eg., N.L.R.B. v. Urban Telephone

Corp., 499 F.2d 239, 242-243 (7th Cir. 1974); Home Town

Foods, Inc. Vv. N.L.R.B., 379 F.2d 241, 244 (5th Cir. 1967) ;

N.L.R.B. Vv. Smith Industries, Inc., supra, 408 F.2d at 896.

quently adopted by the Board—in order to ascertain

whether such determinations were supported by sub-

stantial evidence. Judge Bryan concludes from his

review of the record that Hall was an inherently un-

reliable witness, and that substantial evidence did

not support the Board’s toleration of Hall’s threats

against employees Tubbs and Doss.”

Further indicative of the majority’s misapplication

of the substantial evidence standard are various other

factual errors embodied in the opinion below. Thus,

for example, the majority clearly misconstrues the

Regional Director’s findings regarding the Union

misrepresentation issue (compare App. A, p. 3a, n. at

4a and App. H, p. 86a; see supra p. 21, n. 17), as well

% Judge Bryan specifically noted that Hall never denied

that he made the remarks attributed to him by Tubbs. (App.

A, p. 16a).

Hall did not deny before the Hearing Officer that he had

made these remarks to Tubbs. He makes the point that

he never “threatened” Tubbs. His is a confession and

avoidance, lightly tossing it off as something not to be

taken at all seriously—just jesting.

Judge Bryan further observed that (App. A, pp. 12a-13a)

[t]he evidence quite starkly discloses that Hall just be-

fore the election doggedly hounded and bullied these two

employees into a state of intimidation lest they oppose

his wishes. This insufferable intrusion upon the privileges

of the participants in a secret balloting, however, occa-

sioned the Board no serious reflection. It consoles itself

in the conviction that what Hall did was all in good fun.

Without even a hint of the unlawfulness of the acts im-

putable to Hail, his testimony is accepted, theirs rejected,

all because Hall “favorably impressed me [the Hearing

Officer] on his demeanor as a general credible witness”

in testifying.

as the Board’s ruling on the Hearing Officer’s conflict

of interest.” Both these errors would presumably

have been obviated by an independent review of the

record. The majority, nonetheless, holds that “[w]e

see no error of fact or law, or lack of substantial evi-

dence to support these findings” (App. A, p. 3a, n.

at 5a).

CONCLUSION

For the foregoing reason, this Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

Of Counsel: JOSEPH D. LUKSCH

VEDDER, PRICE, KAUFMAN, oe

KAMMHOLZ & Day 1750 Pennsylvania Ave., N.W.

1750 Pennsylvania Ave., N.W. -

Washington, D.C. 20006 Washington, D.C. 20006

WILLIAM W. McKITTRICK

VEDDER, PRICE, KAUFMAN 115 South La Salle Street

& KAMMHOLZ * Chicago, Illinois 60603

115 South La Salle Street ‘

Chicago, Illinois 60603 Attorneys for Petitioner,

Abbott Laboratories,

Ross Laboratories Division

*° As to this issue, the Board found that the Hearing Offi-

cer’s refusal to disclose his union membership was proper

since such “inquiry is irrelevant to this proceeding” (App.

D, p. 37a, n. 1). The majority, however, incorrectly embel-

lishes this ruling by stating that the “Board also ruled that

the Hearing Officer did not have an interest in the litigation

merely because he might have belonged to the same union as

one of the witnesses who appeared before him” (App. A, p.

3a, n. at 5a).

APPENDICES

°- APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 75-1496

ABBOTT LABORATORIES,

Ross LABORATORIES DIVISION,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for Review of an Order of the National

Labor Relations* Board.

Argued November 11, 1975, Decided Mar. 31, 1976

Before CLARK,* Associate Justice, BRYAN, Senior

Circuit Judge, and WINTER, Circuit Judge.

* Associate Justice, Supreme Court of the United States,

retirea, sitting by designation.

WINTER, Circuit Judge:

Abbott Laboratories (the Company) petitions to

set aside an order of the Board finding that it vio-

lated § 8(a)(5) and (1) of the Act by refusing to

bargain with the duly certified representative of its

employees (Textile Workers of America—the Union),

and the Board cross-petitions for enforcement. The

Company does not dispute that it refused to bargain;

its defense is one of vitiating irregularities in the

representation election and proceedings in which the

Board rejected the Company’s objections to the elec-

tion. Because we are not persuaded that there were

prejudicial defects in the representation election or

procedural defects in the Board’s rejection of the

Company’s objections, and because we are persuaded

that the Board’s resolution of the factual issues aris-

ing out of the representation election is supported

by substantial evidence, we grant enforcement.

The election was held on July 20, 1973, at the

Company’s plant in Altavista, Virginia. After chal-

lenges were resolved, the Union prevailed by a vote

of 22 to 20.

The Company filed nine objections to the election.

The charges were investigated and the Board adopted

the Regional Director’s recommendation that a hear-

ing be held on four objections and that the remain-

ing objections be overruled. A hearing was held and

the hearing officer recommended that these four ob-

jections also be overruled and the Union certified.

The Company filed exceptions to these recommenda-

tions and to certain procedural rulings made by the

hearing officer. Besides attacking the hearing officer’s

findings in general and his credibility resolutions in

particular, the Company excepted to the hearing of-

ficer’s refusal to receive posthearing briefs and his

refusal to disqualify himself on the basis of an al-

leged conflict of interest arising from the hearing

officer’s refusal to disclose his membership (or lack

thereof) in the NLRB Union. The exceptions were

rejected by the Board and the Union certified on

October 22, 1974. The refusal to bargain followed

promptly thereafter and the unfair labor practice

proceeding was begun on November 6, 1974.

Before us, the Company presses substantially all

of the objections that it submitted to the Board. It

asserts that the Board improperly overruled certain

of its objections without a hearing, that there was

lacking substantial evidence to overrule the objec-

tions as to which a hearing had been held, that the

Board’s hearing officer improperly denied the Com-

pany the right to file a brief, and that the Board’s

hearing officer should have disqualified himself be-

cause his possible membersh in a union which

admittedly had no interest in the litigation before

him might nevertheless have led him to lack objectiv-

ity in judging the conduct of a Board agent who was

a member of that union.

We see no merit in any of the arguments made

to us and we think that they need not be discussed

in detail.* In deference to our dissenting brother,

* Besides asserting that the Union threatened employees

with physical violence, the Company argues that the Union

falsely accused the Company of planning reprisals if the

Union won the election. The Board found that the Company

had ample opportunity to rebut any false accusations about

its own plans. The Company argues, second, that the Union

engaged in improper electioneering between the morning and

afternoon voting sessions. The Board found that pro-Union

employees’ forecasts of victory would have been regarded

as mere puffing and did not imply access to inside informa-

tion. The Company next asserts that the Union threatened

employees with loss of employment if they did not become

members of and support the Union. The Company produced no

evidence on this objection, and the Board deemed it to have

been abandoned. ‘The Company’s fourth argument is that an

official Board notice of election was defaced so as to bene-

fit the Union. The Board found that the defacing of the

election notice was an isolated, individual prank, and that

any prejudice could easily have been remedied by the Com-

pany. Next, the Company contends that the Union had mis-

represented a contract which the Union had negotiated with

another employer. The Board found that there was no mis-

representation, since the Union had participated in the

claimed negotiations, and failure to disclose the fact that

other unions had played a dominant role in the bargaining

was not a material omission. Sixth, the Company argues that

the Board’s agent conducting the election had made improper

remarks to eligible voters. The Board found that any im-

proper remarks were not prejudicial, since they were not

made within the hearing of anyone who had not yet voted, and

were not so extreme as to justify setting aside the election

in the absence of prejudice on the theory that they destroyed

the appearance of the Board’s impartiality. The Company’s

seventh assertion is that there had been improper conduct

at the polling place by one of the Union’s observers. The

Board found that it was not improper for the observer to

stand rather than sit. With regard to the Company’s eighth

argument that the marking of one ballot was visible as it

was being deposited in the official ballot box, the Board found

this occurrence to be an isolated accident which had no effect

on the election.

With respect to proceedings before the hearing officer,

the Board ruled that its hearing officer was not required,

——————

however, we will discuss the Company’s contention

that the election should be set aside because repre-

sentatives of the Union threatened physical violence

to the Company’s employees if they did not vote for

and support the Union.

II.

The contention that the Union threatened em-

ployees with physical violence, thereby vitiating the

election, rests solely on disputed testimony about

statements made by Cecil Hall. Hall was a Company

employee who was an active Union advocate and

one of three ei *ployees who informally acted as a

liaison with the Union’s official representatives.

There was testimony at the representation hearing

that Hall, on three separate occasions, threatened to

beat up employee Frederick Tubbs if Tubbs did not

vote for the Union, and that, on one occasion, Hall

threatened to kill or beat up employee Gerald Doss

if Doss did not discontinue his work against the

Union. .

According to Tubbs, Hall’s first statement to

Tubbs was made during May or June, 1973, at a

meeting of Company employees at Leesville Dam.

Hall asked Tubbs if Tubbs was for the Union. When

either by statute or the due process clause, to accept post-

hearing briefs since the parties had the opportunity to ex-

press their views in writing both before and after the case

was referred to the hearing officer. The Board also ruled that

the hearing officer did not have an interest in the litigation

merely because he might have belonged to the same union as

one of the witnesses who appeared before him.

We see no error of fact or law in these rulings, or lack of

substantial evidence to support these findings.

Tubbs replied affirmatively, Hall said “if I [Tubbs]

did not vote for the union he was going to throw

me in the lake.” The next statement was made in

early July, about two weeks before the election, at

Wayside Park. Again Hall asked Tubbs if he was

“still for the union,” and when Tubbs answered

“ves,” Hall said “if you don’t vote for the union, I

am going to kick your ass.” About a week later, at

the time clock where employees punched in, Hall

again said to Tubbs, “If you don’t vote for the union,

I am going to kick in your damn ass.” Tubbs did

not take Hall’s first comment seriously; the second

caused him some pause; and the third convinced him

that Hall meant what he said. Tubbs was unable to

say, however, whether his vote in the representation

election had been influenced.

Hall’s statement about Doss was made to Wayne

Crews some time before the election. Hall said that

he would like to “kill” Doss, who was engaged in

counter-organizational activities, but immediately

added that he would not want to kill him but “just

. . . to beat the hell out of him.” Crews relayed the

statement to Doss.

Hall denied the statements to Tubbs were threats

or were more than jokes not intended to be taken

seriously. He denied making the statement about

Doss. Although Tubb’s testimony about what Hall

said was corroborated by other witnesses, there was

in fact no physical violence and Tubbs continued to

attend Union meetings and made no effort to avoid

Hall.

The Company sought to impeach Hall by showing

the inconsistency between his testimony in which he

admitted threatening Tubbs in jest and an affidavit

that he gave a Board representative in which he

denied that he threatened anyone, and on the basis

of his convictions some twenty years before for theft

and escape.

The hearing officer recited and analyzed the evi-

dence pertinent to the Tubbs and Doss threats. He

noted that with respect to Hall the evidence was in

conflict, and then stated:

With respect to the alleged threats made to

Tubbs, it is clear that these alleged statements

were made at voluntarily attended pro-union

meetings and although Tubbs admitted that he

considered the first threat to be in jest, he be-

gan to consider it more seriously when the al-

leged threat was renewed 2 weeks prior to the

election. In spite of this subjective reaction,

Tubbs was not deterred from attending addi-

tional union meetings and he even attended the

union’s victory party after the election. Tubbs

was also the recipient of the sum of $11, which

was loaned to him by pro-union employees to

assist him in paying a fine. Such actions are

inconsistent with any attempt to show an at-

mosphere of fear and coercion. Moreover, Tubbs

disavowed two affidavits which he read, swore

to under oath and gave to Board Agents con-

ducting the investigation of objections and this

in itself creates a very serious question as to his

credibility. Noting also the inability of Wayne

Crews in his testimony to recall Tubbs’ reaction

to the threat about being kicked into the lake

at Leesville Dam at a time when Tubbs himself

readily admitted that he laughed at this alleged

threat and further noting the demeanor of the

witnesses, I do not credit the testimony of either

Tubbs or Crews concerning the alleged threats

to Tubbs. On the other hand, I do not credit

the version of Cecil Hall who favorably im-

pressed me on his demeanor as a generally credi-

ble witness. His admitted remark to Tubbs was

clearly made in jest and prompted by the ap-

parent threat Jim Pruett made to Tubbs [to kill

him if he voted for the union]. Under a well

established legal principle the board does not

permit a wrongdoer to profit from the illegal act

of its agent, but more significantly, in this con-

text Hall’s one remark to Tubbs was made in

jest and in such a posture had no effect upon

the election and objections based thereon should

be overruled. (Footnotes omitted. )

In regard to Doss, the hearing officer reported:

With respect to the testimony of Gerald Doss, it

is clear that Hall never directly threatened him

and that after hearing the alleged threat second-

hand, from employee Wayne Crews, Doss clearly

indicated that he was not frightened and that

the remark had no effect upon the way he voted.

There was no evidence to show that this alleged

threat received wide circulation or that the em-

ployee who was the recipient of the alleged

threat was affected in any way by this alleged

misconduct in the casting of his ballot at the

polls. (Footnote omitted.)

The hearing officer’s conclusion and recommenda-

tion, subsequently adopted by the Board, was:

Based on all of the foregoing and noting par-

ticularly that the entire critical period prior to

the conduct of the election was totally free from

any actual physical violence or property damage

and that the employees who allegedly made co-

ercive statements were not officers or agents of

Petitioner [the Union] or so closely associated

with Petitioner as to warrant other employees

into believing that they had authority to act for

it and that there was no evidence to establish

that the Petitioner or any of its agents ever

authorized, ratified or condoned any coercive

conduct, I find that Employer’s Objection No. 1

[threats of physical violence] does not raise sub-

stantial or material issues with respect to con-

duct affecting the results of the election. (Foot-

note omitted. )

. it is recommended that [this] objection

be overruled . . . [and] that a Certification of

Representative issue.

ITI.

As we review the record, this is a case in which

a determination of whether there were such threats

of physical violence as to justify setting aside the

election depends largely on the resolution of con-

flicting testimony based upon the credibility of the

witnesses. Credibility is an issue for the hearing

officer; and especially when it depends largely on

observation of the witnesses’ demeanor at the hear-

ing, its resolution by the hearing officer will not be

overturned. NLRB v. Walton Mfg. Co., 369 U.S.

404, 408 (1962); NLRB v. Lester Bros., Inc., 301

F.2d 62, 68 (4 Cir. 1972). Certainly the hearing

officer’s determination will not be upset by a mere

head count of how many witnesses testify to each

of two conflicting versions of an event, cf. NLRB

v. Union Carbide Caribe, Inc., 423 F.2d 231, 233

(1 Cir. 1970), particularly when some of the wit-

10a

nesses supporting the version having numerical su-

periority are contradicted either by others who sup-

port the same ultimate fact or by their own prior

statements. Hall’s prior criminal record of twenty

years earlier did not require that he be disbelieved,

cf. Rule 609(b), Fed. Rules of Evidence, although

Tubb’s very recent conviction for assault and battery

could be deemed to undermine his persuasiveness.

Affording the hearing officer’s credibility determi-

nations the respect to which they are entitled, we

cannot say that the record fails to support his con-

clusion that the election was not prejudiced by threats

of violence. Hall was not the Union’s representative;

he had no official position with the Union; nor was

he on its payroll. The record is lacking in evidence

that the Union authorized any of Hall’s statements,

or that it was aware of them and failed to disavow

them. More importantly, the record does not show

a general atmosphere of fear and coercion so as to

render improbable employee free choice in voting.

Admittedly Hall did not always express himself in

polite language and he had resort to hyperbole; but

in an industrial setting, his choice of language was

not uncommon nor would it be expected to have a

coercive impact. NLRB v. Bostic Division, USM

Corp., F.2d —— (6th Cir. 1975); Scoville

Mfg. Co. v. NLRB, 443 F.2d 358 (4 Cir. 1971).

ENFORCEMENT GRANTED.

Albert V. Bryan, Senior Circuit Judge, dissenting:

The election resulted in so close a tally—22 to 20—

in favor of the Union that the misconduct of the

Union’s electioneering deserves uncommon scrutiny.

a eS Se =

lla

The fair thing, of course, would be for the Board to

order a new election—a solution not to be feared by

the Union or the Company—but the Board * refused.

Predominantly suspect is the behavior of employee

Cecil Hall, a Union contact man and organizer, in

his incessant strong arm threats of physical reprisal

directed particularly to two co-employees, Frederick

Tubbs and Gerald Doss, if they did not vote for the

Union. Notably, had either of them been allowed to

express his preference in the election, a privilege

granted by law, the result would have been a tie and

defeat for the Union,

That there was a denial of this right is squarely

proved by the following colloquy of the Hearing Offi-

cer and Tubbs, who was browbeaten by Hall to vote

for the Union and thus gave victory to the Union:

“HEARING OFFICER: Did Mr. Hall’s com-

ments affect the way you voted?

WITNESS: I believe so.

HEARING OFFICER: How would it affect?

WITNESS: It could have. Because I did not

know—I could not make my mind up. I was

scared.

* * * *

“HEARING OFFICER: Let me return to the

point that I was trying to establish. Did the

comments that Mr. Hall made to you affect the

way you voted? Did you vote the way you in-

* Since the Board adopted all of the findings of the Hearing

Officer, the latter’s rulings are frequently spoken of infra as

the Board’s. ‘

12a

tended to vote when you went into the voting

place, the polling area?

WITNESS: No, sir, I did not.

HEARING OFFICER: You did not vote the

way you wanted to?

WITNESS: No, sir. I thought about it. He

done told me three times before the election that

he was going to do something to me and so I

started not to vote either way. I started not to

vote either way and then I figured that I had

to vote one way so I went in the booth and I

came out and then I went back in again and

made my mark.

* * * *

“HEARING OFFICER: Did Mr. Hall’s com-

ments to you threatening to throw you in the

lake and threatening to kick you ass, did that

affect the way you voted. Were you persuaded

to vote for his position?

WITNESS: Yes, I would say so.”

The majority opinion quite justly notes that the sec-

ond threat of Hall gave Tubbs pause and the third

convinced him of Hall’s intentions.

I dissent from the insistence of the Board to ap-

prove the election in the face of this proof. The evi-

dence quite starkly discloses that Hall just before

the election doggedly hounded and bullied these two

employees into a state of intimidation lest they op-

pose his wishes. This insufferable intrusion upon the

privileges of the participants in a secret balloting,

however, occasioned the Board no serious reflection.

It consoles itself in the conviction that what Hall did

was all in good fun. Without even a hint of the un-

13a

lawfulness of the acts imputable to Hall, his testi-

mony is accepted, theirs rejected, all because Hall

“favorably impressed me [the Hearing Officer] on

his demeanor as a generally credible witness” in tes-

tifying. Decision is rested upon the overworked re-

fuge of the Board: that it is the final judge of credi-

bility.

Now the Court, too, dismisses the issue as merely

a matter of credibility. Lut exploration is demand-

able, I think, to ascertain whether “substantial evi-

dence” gives the Board’s pronouncement such stature.

The search is not satisfied by the Board’s ipse dixit;

the answer is for the Court; indeed, the Court must

press the inquisition. Universal Camera Corporation

v. National Labor Relations Board, 340 US 373, 488,

491 (1951). This quest will reveal the Board’s amaz-

ing determinations.

Beyond peradventure Hall represented the Union.

It looked to him as one of the leaders of the organiza-

tion campaign in the plant and as its conduit for re-

ports and directives. His voice was the Union’s, as

the employees generally recognized. Later he was to

be the Union observer at the ballot box.

Not only did he speak with the authority of the

Union but he spoke with the force of the bearer of two

felony convictions—one in 1950 for breaking and

entering a store in the nighttime, with the theft of

$50.00 worth of cigarettes, and another for grand

larceny of an automobile. Presently, the Hearing

Officer casually shrugged off this record, commenting

that “such offenses do not relate to crimes involving

physical violence”; the Court now treates it as in-

substantial since the crimes were committed 20 years

before.

l4a

Actually Hall served 12 years, not being released

until December 1961. Furthermore, it is significant

that even his prison record was not exemplary and

bears recall when his bent for crime surfaces again.

Hall escaped from the five-year imprisonment on the

breaking and entering sentence; while a fugitive he

stole the automobile; on two occasions his parole was

revoked, once in 1954 and then in 1957; and he was

returned to prison each time. I put down Hall’s crim-

inality as something more than a peccadillo; I call it

downright vicious violence. Also, he would seem to be

a somewhat menacing fellow employee. The majority

quite candidly can only say, with faint mitigation

for him, that his record “did not require that he be

disvelieved”. On the other hand, it says, a recent con-

viction of Tubbs for assault and battery “could be

deemed to undermine [the] persuasiveness” of him

as Hall’s accuser. This contrast in weight given the

two records will not survive the facts.

The felony convictions were played down by the

Hearing Officer, in redemption of Hall, while the con-

viction of Tubbs for assault and battery was played

up, to impair Tubbs’ truthfulness. It is clarifying

to find that his assault and battery must have been

quite slight for the sentence was 18 days. Moreover,

he was allowed to serve it during six weekends.

Verily, the difference in treatment of Hall’s felonies

and Tubbs’ offense is to “strain at a gnat and swal-

low a camel.”

Hall, in the weeks immediately preceding the elec-

tion on July 20, 1973, as the majority opinion fully

recites, repeatedly threatened employee Frederick

Tubbs to “kick [his] ass” if he did not vote for the

Union. This meant in plant language, Tubbs ex-

15a

plained under oath, “to get to you and work you

over and things. They would beat you up”. About the

same time, as he watched employee Gerald Doss act

counter-union, Hall said, “I would like to kill the

son of a bitch” and continuing said, “No he wouldn’t

want to kill him, I would just like to beat the hell out

of him”. This remark was repeated to Doss through

employee Crews.

The Company complained to the Regional Director

to set aside the election for Hall’s duress of the voters

and other unlawful tactics at the polls. Before Tubbs

was interviewed by the Director’s agent, Tubbs was

admonished by Brumfield, another contact man of the

Union’s regional vice-president, not to relate Hall’s

threats since it would “mess up” Hall. Thereafter,

Tubbs resigned his job in the plant to take a jani-

torial job with the Company. On meeting him later,

Hall shook his fist at Tubbs, telling him that he was

now without protection, and “kept coming around”

and “calling me [Tubbs] a rat and a two-timer”.

Great stress is laid by the Hearing Officer—to im-

pair Tubb’s veracity—upon two affidavits he filed

with the investigating agent on August 8, 1973. In

one he stated that he was never threatened by Hall

and a supplementary affidavit of September 13, 1973

said that he had not told Doss that Hall had threat-

ened Tubbs. Unfortunately the inducement of these

affidavits is not mentioned. They were prompted by

the statement of Hall to him a week after the elec-

tion, in substance, that if anybody said that Hall had

threatened somebody and could not prove it, they

could be sued for slander. This obviously frightened

l6a

Tubbs and generated his denials in the affidavits just

mentioned.

Moreover, on November 9, 1973, prior to the hear-

ing before the Hearing Officer, Tubbs went to his

employer and explained the falsity of his affidavits,

the reason why he had made them and gave a full

statement in affidavit form on November 9, 1973 re-

citing the entire story. He even went to Washington,

D. C. to correct these earlier denials of Hall’s threats.

On his return, Tubbs was faced by this same

Brumfield, the Union’s contact man who had learned

of his trip, with a warning that the “boys” were

mad at Tubbs and more so at Crews, the latter also

having been noticed giving testimony against Hall.

Furthermore, Hall asked him at the plant, “Why

did you [correct your statement] because I ain’t

bothering you but I could. I could do it mighty

quick”. All of this indicates Hall’s unrelenting pur-

suit of him and why his first two affidavits cannot be

taken as affecting his credibility before the Hearing

Officer.

Hall did not deny before the Hearing Officer that

he had made these remarks to Tubbs. He makes the

point that he never “threatened” Tubbs. His is a con-

fession and avoidance, lightly tossing it off as some-

thing not to be taken at all seriously—just jesting. As

the majority now quite accurately frames it: “Hall

denied that his statements to Tubbs were threats or

were more than jokes not intended to be taken seri-

ously.” Astonishingly, this is seized upon by the

Board as expiation cleansing him of any wrongdoing.

Feeble indeed is another excuse for him: there was

no physical violence. Did there have to be body blows

17a

in order to constitute coercion? To cap it all, before

the hearing, Hall had sworn to a Board representa-

tive in an affidavit that he did not tell Tubbs he

would kick him if he did not support the TWUA

[the Union].” Yet he is accorded unqualified belief

by the Board.

Tubb’s accusations were “corroborated by other

witnesses”, the majority observes, but then it presses

against him, as inconsistencies, the circumstances of

his continuance in attendance at Union meetings and

his failure to avoid Hall. To me these incidents indi-

cate, rather, the depth of Tubb’s conviction of the

gravity of Hall’s threats, and his fear of the conse-

quences should he cross Hall. The fact that he bor-

rowed $11.00 from some of the Union members to

pay a fine is also adduced as an inconsistency, but I.

miss the point of it. A loan while in such straits

would be readily accepted by anybody.

Complete freedom to express their preference in

an election of this kind is guaranteed by law to all

the employees. This privilege is entrusted to the Board

for assurance of its protection, but here the Board

tolerates a gross deprivation of the right. As a mini-

mum restoration, a new election should be ordered.

ADDENDUM

After the opinions in this case were prepared and

circulated within the court, but before they were

filed, a suggestion for rehearing in banc and a re-

quest for a poll was made sua sponte within the court.

A majority of the judges eligible to vote voted to

deny rehearing in banc.

18a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

March 31, 1976

CLERK’S MEMORANDUM

In compliance with Rules 36 and 45(c) of the Fed-

eral Rules of Appellate Procedure, you are advised

that the judgment in case No. 75-1496 was entered

this date. A copy of the Court’s opinion, and a blank

bill of costs (omitted in criminal cases) is enclosed.

I would invite your particular attention to Rules

39(c), 40(a), and 41(b) of the Federal Rules of

Appellate Procedure.

WILLIAM K. SLATE, II

Clerk

19a

APPENDIX C

217 NLRB No. 117 FJP

D-9718

Altavista, Va.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 5—CA-6969

ABBOTT LABORATORIES

Ross LABORATORIES DIVISION

and

TEXTILE WORKERS UNION OF AMERICA, AFL-CIO

DECISION AND ORDER

Upon a charge filed on November 6, 1974, by

Textile Workers Union of America, AFL-CIO, here-

in called the Union, and duly served on Abbott Lab-

oratories, Ross Laboratories Division, herein called

the Respondent, the General Counsel of the National

Labor Relations Board, by the Regional Director for

Region 5, issued a complaint on December 4, 1974,

against Respondent, alleging that Respondent had

engaged in and was engaging in unfair labor prac-

tices affecting commerce within the meaning of Sec-

tion 8(a)(5) and (1) and Section 2(6) and (7) of

the National Labor Relations Act, as amended. Copies

of the charge, complaint, and notice of hearing be-

fore an Administrative Law Judge were duly served

on the parties to this proceeding.

20a

With respect to the unfair labor practices, the

complaint alleges in substance that on October 22,

1974, following a Board election in Case 5—RC-

8530 the Union was duly certified as the exclusive

collective-bargaining representative of Respondent’s

employees in the unit found appropriate; ' and that,

commencing on or about October 30, 1974, and at

all times thereafter, Respondent has refused and

continues to date to refuse, to bargain collectively

with the Union as the exclusive bargaining represent-

ative, although the Union has requested and is re-

questing it to do so. On December 11, 1974, Re-

spondent filed its answer to the complaint admitting

in part, and denying in part, the allegations in

the complaint and raising affirmative defenses.

On January 7, 1975, counsel for the General Coun-

sel filed directly with the Board a Motion for Sum-

mary Judgment. Subsequently, on January 13, 1975,

the Board issued an order transferring the proceed-

ing to the Board and a Notice To Show Cause why

the General Counsel’s Motion for Summary Judg-

ment should not be granted. Respondent thereafter

filed a response to Notice To Show Cause entitled

1 Official notice is taken of the record in the representation

proceeding, Case 5—RC—8530, as the term “record” is de-

fined in Secs. 102.68 and 102.69(f) of the Board’s Rules and

Regulations, Series 8, as amended. See LTV Electrosystems,

Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,

1968); Golden Age Beverage Co., 167 NLRB 151 (1967),

enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello,

269 F. Supp. 573 (D.C. Va., 1957); Follett Corp., 164 NLRB

878 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of

the NLRA.

2la

“Reply in opposition to motion to the Board for Sum-

mary Judgment.”

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.

Upon the entire record in this proceeding, the

Board makes the following:

Ruling on the Motion for Summary Jurgment

In its answer to the complaint and response to the

Notice to Show Cause, Respondent, in effect, dis-

putes the representative status of the Union because

of errors it alleges occurred in the denial of hearing

on certain of its objections and in the rulings and

findings of the Hearing Officer at the hearing on the

rest of its objections which deprived Respondent of

due process.

Our review of the record herein, including that of

representation Case 5—RC-8530, reveals that fol-

lowing a Stipulation for Certification Upon Consent

Election an election was held on July 20, 1973, which

the Union won after, upon agreement of the parties,

the challenged ballots were opened and counted. The

Respondent filed timely objections to conduct affect-

ing the results of the election alleging, in substance,

that the Union threatened loss of employment and

violence to the persons and property of employees,

created fear among the employees, engaged in im-

proper electioneering, and made misrepresentations;

that official NLRB notices were marked and defaced

so as to benefit the Union; and that, during the time

the polls were open, the security of the ballots was

22a

not maintained, the union observer engaged in con-

duct disruptive of the appearance of neutrality, and

the Board agent engaged in conversation and re-

marks prejudicial to the Employer in the presence

of eligible voters.

On September 23, 1973, after investigation, the

Regional Director issued a Report on Objections and

Challenges recommending that Respondent’s objec-

tions be overruled as they did not raise substantial

or material issues and that the Union be certified.

Respondent filed with the Board exceptions to the

Regional Director’s report and a brief in support

thereof requesting a hearing. Thereafter, the Re-

spondent filed with the Regional Director a Motion

for Reconsideration based on an additional statement

corroborating, and in support of, its objections. In

a Supplemental Report on Objections and Denial of

Motion for Reconsideration, the Regional Director

denied reconsideration. Respondent then filed excep-

tions thereto with the Board again requesting a

hearing on its objections.

The Board on January 16, 1974, issued its De-

cision and Order in which it adopted the Regional

Director’s ruling and recommendations in the report

and supplemental report with the modification that

it found the issues raised in the objections concern-

ing threatened violence, marked and defaced NLRB

official notices, Board agent remarks, and union ob-

server conduct could best be resolved in a hearing.

After 3 days of hearing, the Hearing Officer on

April 4, 1974, issued his Report and Recommenda-

tions on Objections in which he found the objections

did not raise substantial and material issues with

23a

respect to the election and recommended that they

be overruled, and that, as the Board had previously

overruled the other objections, the Union be certified.

Respondent filed with the Board exceptions, a brief,

and a motion for oral argument wherein it alleged

that its exceptions involved novel and substantial

questions concerning Board law and policy. Respond-

ent excepted to the Hearing Officer’s findings es-

pecially with respect to credibility resolutions and

conduct of the union observer and remarks of the

Board agent during the polling. Respondent further

argued that the Hearing Officer deprived it of a

fundamental and substantive right by refusing to re-

ceive briefs and prejudiced its right to a fair and

unbiased hearing by refusing to state whether he or

counsel for the Regional Director was a member of,

or represented by, the NLRB union and his subse-

quent failure to disqualify himself and counsel for

the Regional Director for that reason. Respondent

also contended. that the Hearing Officer erred by

quashing a subpoena duces tecum requesting certain

materials from the Regional Director’s file.

The Board, on October 22, 1974, issued its Sup-

plemental Decision and Certification of Representa-

tive. After reviewing the Hearing Officer’s rulings,

it found they were free from prejudicial error and

expressly noted that the Hearing Officer properly

refused to receive briefs, to require himself and coun-

sel for the Regional Director to disclose whether they

were union members, and to delay the hearing to

subpoena an investigating Board agent, and that he

properly quashed a subpoena duces tecum. Then,

after considering the entire record, the Board denied

the motion for oral argument because the briefs ade-

24a

quately presented the issues and positions of the

parties, adopted the Hearing Officer’s recommenda-

tion that the objections be overruled in their entirety,

and certified the Union.

Respondent in its answer to the complaint and

response to the Notice To Show Cause claims that

the Board wrongfully deprived it of a hearing on

some of its objections which were overruled and that

it was denied due process because of the Hearing

Officer’s rulings at the hearing in the remaining

objections. As to the objections which were over-

ruled without a hearing, the Board, considering the

Regional Director’s report and supplemental report,

adopted in its Decision and Order the finding that

those objections did not raise substantial and ma-

terial issues. It is well settled that parties do not

have an absolute right to a hearing on objections to

an election and only when the moving party presents

a prima facie showing of substantial and material

issues which would warrant setting aside the elec-

tion is it entitled to a hearing. It is clear that this

qualified right to a hearing satisfies all statutory

and constitutional requirements.? With respect to

the hearing which was held on the other objections,

as indicated above, in the Decision and Certification

of Representative, we considered the Hearing Ofii-

cer’s rulings and decided that they were proper and

not prejudicial and therefore it is clear that Re-

spondent has not been denied due process.

Since in its response to the Notice To Show Cause

Respondent concedes, and it so appears, that all the

2 Heavenly Valley Ski Area, 215 NLRB No. 129 (1974);

Lynden Frosted Foods, Inc., 216 NLRB No. 87 (1975).

25a

Respondent’s contentions raised in this case have been

previously presented to the Board in the underlying

representation case, we find Respondent may not

relitigate them here.n. It is well settled that in the

absence of newly discovered or previously unavail-

able evidence or special circumstances a respondent

in a proceeding alleging a violation of Section 8(a)

(5) is not entitled to relitigate issues which were

or could have been litigated in a prior representa-

tion proceeding.*

All issues raised by the Respondent in this pro-

ceeding were or could have been litigated in the

prior representation proceeding, and the Respondent

does not offer or adduce at a hearing any newly

discovered or previously unavailable evidence, nor

does it allege that any special circumstances exist

herein which would require the Board to reexamine

the decision made in the representation proceeding.

We therefore find that the Respondent has not raised

any issue which is properly litigable in this unfair

labor practice proceeding.‘ We shall, accordingly,

grant the Motion for Summary Judgment.

8 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146,

162 (1941); Rules and Regulations of the Board, Secs. 102.67

(f) and 102.69(c).

‘In its answer to the complaint, Respondent denies the alle-

gation that it has failed and refused to bargain with the

Union insofar as such allegation alleges that Respondent has a

legal obligation to meet and bargain with the Union. Respond-

ent’s letter of October 30, 1974, in which it refuses to meet

with the Union is appended to the Motion for Summary

Judgment and the contents thereof are uncontroverted by the

Respondent. Therefore, we find ... refusal to bargain to be

admitted and true.

26a

On the basis of the entire record, the Board makes

the following:

Findings of Fact

I. The Business of the Respondent

Abbott Laboratories, an Illinois corporation, is en-

gaged in the production of infant formula at its Alta-

vista, Virginia, location. During the preceding 12

months, a representative period, Respondent purchas-

ed and received, in interstate commerce, goods and

materials valued in excess of $50,000 from points

outside the Commonwealth of Virginia.

We find, on the basis of the foregoing, that Re-

spondent is, and has been at all times material

herein, an employer engaged in commerce within

the meaning of Section 2(6) and (7) of the Act, and

that it will effectuate the policies of the Act to assert

jurisdiction herein.

II. The Labor Organization Involved

Textile Workers Union of America, AFL-CIO, is

a labor organization within the meaning of Section

2(5) of the Act.

III. The Unfair Labor Practices

A. The Representation Proceeding

1. The unit

The following employees of the Respondent consti-

tute a unit appropriate for collective-bargaining pur-

poses within the meaning of Section 9(b) of the Act:

All production and maintenance employees em-

ployed by the Employer at its Altavista, Vir-

27a

ginia, facility, but excluding all office clerical

employees, professional employees, guards, and

supervisors as defined in the Act, as amended.

2. The certification

On July 20, 1973, a majority of the employees of

Respondent in said unit, in a secret ballot election

conducted under the supervision of the Regional Di-

rector for Region 5 designated the Union as their rep-

resentative for the purpose of collective bargaining

with the Respondent. The Union was certified as the

collective-bargaining representative of the employees

in said unit on October 22, 1974, and the Union

continues to be such exclusive representative within

the meaning of Section 9(a) of the Act.

B. The Request To Bargain and

Respondent’s Refusal

Commencing on or about October 28, 1974, and at

all times thereafter, the Union has requested the

Respondent to bargain collectively with it as the

exclusive collective-bargaining representative of all

the employees in the above-described unit. Commenc-

ing on or about October 30, 1974, and continuing at

all times thereafter to date, the Respondent has re-

fused, and continues to refuse to recognize and bar-

gain with the Union as the exclusive representative

for collective bargaining of all employees in said unit.

Accordingly, we find that the Respondent has, since

October 30, 1974, and at all times thereafter, re-

fused to bargain collectively with the Union as the

exclusive representative of the employees in the ap-

propriate unit, and that, by such refusal, Respond-

ent has engaged in and is engaging in unfair labor

28a

practices within the meaning of Section 8(a) (5) and

(1) of the Act.

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Abbott Laboratories, Ross Labora-

tories Division, sct forth in section III, above, occur-

ring in connection with its operations described in |

section I, above, have a close, intimate, and substan-

tial relationship to trade, traffic, and commerce

among the several States and tend to lead to labor

disputes burdening and obstructing commerce and

the free flow of commerce.

V. The Remedy

Having found that Respondent has engaged in and

is engaging in unfair labor practices within the

meaning of Section 8(a)(5) and (1) of the Act, we

shall order that it cease and desist therefrom, and,

upon request, bargain collectively with the Union as

the exclusive representative of all employees in the

appropriate unit, and, if an understanding is reached,

embody such understanding in a signed agreement.

In order to insure that the employees in the ap-

propriate unit will be accorded the services of their

selected bargaining agent for the period provided

by law, we shall construe the initial period of cer-

tification as beginning on the date Respondent com-

mences to bargain in good faith with the Union as

the recognized bargaining representative in the ap-

propriate unit. See Mar-Jac Poultry Company, Inc.,

136 NLRB 785 (1962); Commerce Company d/b/a

Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328

F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817

29a

(1964); Burnett Construction Company, 149 NLRB

1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10,

1965).

The Board, upon the basis of the foregoing facts

and the entire record, makes the following:

Conclusions of Law

1. Abbott Laboratories, Ross Laboratories Divi-

sion, is an employer engaged in commerce within the

meaning of Section 2(6) and (7) of the Act.

2. Textile Workers Union of America, AFL-CIO,

is a labor organization within the meaning of Section

2(5) of the Act.

8. All production and maintenance employees em-

ployed by the Employer at its Altavista, Virginia,

facility, but excluding all office clerical employees,

professional employees, guards, and supervisors as

defined (illegible) , as amended, constitute a unit

appropriate for the purposes (illegible) bargain-

ing within the meaning of Section 9(b) of the Act.

4. Since October 22, 1974, the above-named labor

organization has been and now is the certified and

exclusive representative of all employees in the afore-

said appropriate unit for the purpose of collective

bargaining within the meaning of Section 9(a) of the

Act.

5. By refusing on or about October 30, 1974, and

at all times thereafter, to bargain collectively with

the above-named labor organization as the exclusive

bargaining representative of all the employees of

Respondent in the appropriate unit, Respondent has

engaged in and is engaging in unfair labor practices

within the meaning of Section 8(a)(5) of the Act.

30a

6. By the aforesaid refusal to bargain, Respond-

ent has interfered with, restrained, and coerced, and

is interfering with, restraining, and coercing, em-

ployees in the exercise of the rights guaranteed to

them in Section 7 of the Act, and thereby has en-

gaged in and is engaging in unfair labor practices

within the meaning of Section 8(a)(1) of the Act.

7. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the mean-

ing of Section 2(6) and (7) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Re-

lations Board hereby orders that Respondent, Abbott

Laboratories, Ross Laboratories Division, Altavista,

Virginia, its officers, agents, successors, and assigns,

shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning

rates of pay, wages, hours, and other terms and con-

ditions of employment with Textile Workers Union of

America, AFL-CIO, as the exclusive bargaining rep-

resentative of its employees in the following appro-

priate unit:

All production and maintenance employees em-

ployed by the Employer at its Altavista, Vir-

ginia, facility, but excluding all office clerical

employees, professional employees, guards, and

supervisors as defined in the Act, as amended.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of

the rights guaranteed them in Section 7 of the Act.

3la

2. Take the following affirmative action which the

Board finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named

labor organization as the exclusive representative of

all employees in the aforesaid appropriate unit with

respect to rates of pay, wages, hours, and other terms

and conditions of employment, and, if an understand-

ing is reached, embody such understanding in a signed

agreement.

(b) Post at its Altavista, Virginia, facilities cop-

ies of the attached notice marked “Appendix.” *

Copies of said notice, on forms provided by the Re-

gional Director for Region 5, after being duly signed

by Respondent’s representative, shall be posted by

Respondent immediately upon receipt thereof, and

be maintained by it for 60 consecutive days there-

after, in conspicuous places, including all places

where notices to employees are customarily posted.

Reasonable steps shall be taken by Respondent to in-

sure that said notices are not altered, defaced, or

covered by any other material.

5In 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 LAB-

OR 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.”

32a

writing, within 20 days from the date of this Order,

what steps have been taken to comply herewith.

Dated, Washington, D.C., May 9, 1975.

JOHN H. FANNING, Member

HOWARD JENKINS, JR., Member

JOHN A. PENELLO, Member

NATIONAL LABOR RELATIONS BOARD

[SEAL]

33a

APPENDIX

NOTICE OF EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to bargain collectively con-

cerning rates of pay, wages, hours, and other terms

and conditions of employment with Textile Workers

Union of America, AFL-CIO, as the exclusive repre-

sentative of the employees in the bargaining unit de-

scribed below.

WE WILL NOT in any like or related manner in-

terfere with, restrain, or coerce our employees in the

exercise of the rights guaranteed them by Section 7

of the Act.

WE WILL, upon request, bargain with the above-

named Union, as the exclusive representative of all

employees in the bargaining unit described below,

with respect to rates of pay, wages, hours, and other

terms and conditions of employment, and, if an un-

derstanding is reached, embody such understanding

in a signed agreement. The bargaining unit is:

All production and maintenance employees em-

ployed by the Employer at its Altavista, Vir-

ginia, facility, but excluding all office clerical

employees, professional employees, guards and

supervisors as defined in the Act, as amended.

34a

ABBOTT LABORATORIES,

Ross LABORATORIES DIVISION

(Employer)

(Representative) (Title)

This is an official notice and must not be defaced

by anyone.

This notice must remain posted for 60 consecu-

tive days from the date of posting and must not be

altered, defaced, or covered by any other material.

Any questions concerning this notice or compliance

with its provisions may be directed to the Board’s

Office, 1019 Federal Building, Charles Center, Balti-

more, Maryland 21201, Telephone 301—962-2822.

35a

APPENDIX D

FJF

Altavista, Va.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 5-RC-0530

ABBOTT LABORATORIES, ROSS LABORATORIES DIVISION,

Employer

and

TEXTILE WORKERS UNION OF AMERICA,

AFL-CIO, CLC

Petitioner

SUPPLEMENTAL DECISION AND

CERTIFICATION OF REPRESENTATIVE

Pursuant to a Stipulation for Certification Upon

Consent Election approved on May 22, 1973, an elec-

tion by secret ballot was conducted on July 20, 1973,

under the direction and supervision of the Regional

Director for Region 5 among the employees in the

appropriate unit. At the conclusion of the election,

the parties were furnished with a tally of ballots

which showed that 42 voters cast ballots, of which

21 were for, and 19 were against, the Petitioner, and

2 were challenged. By agreement of the parties, the

2 challenged ballots were opened, and a revised tally

prepared which showed that 22 votes were for, and

20 votes were against, the Petitioner. Thereafter,

36a

the Employer filed timely objections to conduct af-

fecting the results of the election.

In accordance with the National Labor Relations

Board Rules and Regulations, the Regional Director

conducted an investigation and, on September 26,

1973, issued and duly served on the parties his Re-

port on Objections and Challenges. In his report, he

recommended that all 10 objections be overruled and

that a Certification of Representative issue. The Em-

ployer filed timely exceptions to the Regional Direc-

tor’s report.

The Employer thereafter filed a motion for recon-

sideration with the Regional Director. The Regional

Director denied this motion in a supplemental report

on November 29, 1973. The Employer then filed

timely exceptions to the supplemental report.

In a Decision and Order dated January 16, 1974,

the Board overruled certain of the Employer’s objec-

tions but directed that a hearing be held for the pur-

pose of receiving evidence to determine the issues

raised by Employer’s Objections 1, 5, 7, and 8, includ-

ing whether Cecil Hall was an agent of the Peti-

tioner.

On January 25, 1974, the Regional Director issued

a notice of hearing and on January 31, 1974, issued a

notice rescheduling the hearing. A hearing was held

on March 6, 7, and 8, 1974, before Hearing Officer

Joseph V. McMahon.

On April 4, 1974, the Hearing Officer issued and

duly served on the parties his Report and Recom-

mendations on Objections in which he recommended

that the objections he overruled in their entirety.

87a

Thereafter, the Employer filed exceptions to the

Hearing Officer’s Report and Recommendations on

Objections and a supporting brief, and the Petitioner

filed a responding brief.

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 reviewed the Hearing Officer’s rul-

ings made at the hearing and finds that they are free

from prejudicial error. They are hereby affirmed.’

The Board has considered the Hearing Officer’s re-

port, the Employer’s exceptions thereto, the Peti-

tioner’s responding brief, and the entire record in

this case and hereby adopts the Hearing Officer’s

recommendation that the objections be overruled in

their entirety.” As Petitioner has won the election,

-we shall certify it as bargaining representative.

The refusals of the Hearing Officer and counsel for the

Regional Director to disclose whether or not they were mem-

bers of a union was proper as such inquiry is irrelevant to

this proceeding. We also find that the Hearing Officer’s rulings

not to receive briefs, not to delay the proceeding so that an

investigating Board agent could be subpenaed, and to quash

a subpoena duces tecum which sought materials from the

Regional Director’s file were properly made.

_* The Employer’s request for oral argument is hereby denied

as the record and the briefs adequently present the issues

and positions of the parties. In agreeing that Objection 1

should be overruled, we rely upon the Hearing Officer’s cred-

ibility resolutions. See The Coca-Cola Bottling Company of

Memphis, 132 NLRB 481 (1961). We find it unnecessary to

reach the merits of the alleged threats and to assume argu-

endo, as did the Hearing Officer, that the threats were made.

38a

CERTIFICATION OF REPRESENTATIVE

It is hereby certified that a majority of the valid

ballots have been cast for Textile Workers Union of

America, AFL-CIO, CLC, and that, pursuant to Sec-

tion 9(a) of the Act, the foregoing labor organiza-

tion is the exclusive representative of all the em-

ployees in the following appropriate unit for the pur-

poses of collective bargaining with respect to rates of

pay, wages, hours of employment, and other terms

and conditions of employment:

All production and maintenance employees em-

ployed by the Employer at its Altavista, Vir-

ginia, facility, but excluding all office clerical

employees, professional employees, guards and

supervisors as defined in the Act, as amended.

Dated, Washington, D.C., October 22, 1974.

JOHN H. FANNING, Member

HOWARD JENKINS, JR., Member

JOHN A. PENELLO, Member

NATIONAL LABOR RELATIONS BOARD

[SEAL ]

—

39a

APPENDIX E

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD |

FIFTH REGION

Case No. 5-RC-8530

ABBOTT LABORATORIES,

Ross LABORATORIES DIVISION

ona Employer

TEXTILE WORKERS UNION OF

AMERICA, AFL-CIO, CLC

Petitioner

APPEARANCES:

Louis J. D’Amico, Esq.

Baltimore, Maryland

For the Regional Director—Region 5

Joseph D. Luksch, Esq.

Washington, D.C.

For the Employer

Michael Schnipper, Esq.

New York, New York

For the Petitioner

BEFORE: Joseph V. McMahon

Hearing Officer

HEARING OFFICER’S REPORT

and

RECOMMENDATIONS ON OBJECTIONS

Pursuant to a Stipulation for Certification Upon

Consent Election approved by the Regional Director

40a

on May 22, 1973, a secret ballot election was con-

ducted on July 20, 1973, among all production and

maintenance employees employed by the Employer

at its Altavista, Virginia facility during the pay-

roll period ending May 20, 1973, excluding all office

clerical employees, professional employees, guards and

supervisors as defined in the Act.

Thereafter, a Tally of Ballots was duly served

upon the parties, which showed the following:

Approximate number of eligible voters a a

Void ballots sepemiemiinnaniennensiimapenamiienes _ 0

DD Oe 21

Votes cast against participating labor organization -....19

Valid votes counted .. : ..40

GE GRID cascetenneressissntinicsintesecibshesittntnsaincintinianbetingaonieans 2

Valid votes counted plus challenged ballots -................. 42

The challenges affected the results of the election.

Pursuant to an agreement of the parties, the two

challenged ballots were opened and counted on Au-

gust 8, 1973 and the revised tally showed that of

the two challenged ballots, one was cast for Peti-

tioner and one against. Thus, of the 42 valid votes

cast, Petitioner received 22, with no challenged bal-

lots remaining for disposition, and the final tally

revealed that a majority of valid votes counted had

been cast for Textile Workers Union of America,

AFL-CIO, CLC.

On July 27, 1973, the Employer timely filed ob-

jections to conduct affecting the results of the elec-

tion.

4la

Pursuant to the Board’s Rules and Regulations,

the Regional Director for Region 5 caused an in-

vestigation of the objections to be made and there-

after, on September 26, 1973, issued and served upon

the parties his Report on Objections and Challenges,

in which he recommended that all of the Employer’s

objections be overruled and that an appropriate Cer-

tification of Representative issue. Thereafter, on

November 14, 1973, the Employer filed a Motion for

Reconsideration to the Regional Director requesting

that the Regional Director reconsider his findings

and recommendations in that such findings appeared

to be erroneous. Thereafter, on November 29, 1973,

the Regional Director for Region 5 issued and served

upon the parties his Supplemental Report on Ob-

jections and Denial of Motion for Reconsideration,

in which he viewed the additional evidence submitted

by the Employer as insufficient to warrant setting

aside the election and denied the Employer’s Motion

for Reconsideration. Thereafter, the Employer filed

timely exceptions to the Regional Director’s Sup-

plemental Report.

On January 16, 1974, the Board issued a Decision

and Order directing that a hearing be held before

a duly designated Hearing Officer for the purpose

of receiving evidence to determine the issues raised

by Employer’s Objections 1, 5, 7 and 8, including

whether or not Cecil Hall was an agent of Petitioner.

Pursuant to the Board’s Order, the above-entitled

matter was referred to the Regional Director for

Region 5 for the purpose of conducting a hearing

and issuing a Notice of Hearing thereon.

Pursuant to the Regional Director’s Notice of

Hearing, dated January 25, 1974, and his Order

42a

Rescheduling Hearing dated January 31, 1974, a

hearing was conducted before the undersigned duly

designated Hearing Officer at Lynchburg and Renan,

Virginia on March 6, 7 and 8, 1974. The Employer,

the Petitioner and the Regional Director were rep-

resented by counsel. All parties were afforded full

opportunity to be heard, to examine and cross ex-

amine witnesses and to introduce documentary evi-

dence relevant to the issues.

Pursuant to the Board’s Order directing a hearing

and upon the record of the hearing, I make the fol-

lowing resolutions of the credibility of witnesses,

findings of fact and recommendations to the Board

as to the disposition of the issues:

THE OBJECTIONS

I. OBJECTION NO. 1

A. Employer’s Objection No. 1 states as follows:

During the critical period herein the Petitioner

threatened employees of Ross with physical vio-

lence to both person and property.

In support of this objection, the Employer pre-

sented witnesses who testified concerning certain al-

leged threats made and the relationship between Cecil

Hall and the Petitioner. The alleged threats as de-

veloped throughout the record covered the follow-

ing numbered incidents and series of incidents:

1. Employee Frederick Tubbs testified that dur-

ing the period between April, 1973 and the day of the

election, July 20, 1973, he attended approximately

all of the 7 pro-union meetings which were held off

43a

the Employer’s premises on the employee’s own time.

At one meeting during May or June, 1973 he stated

that the employees discussed the possibility of “a

rat being in the crowd” and on this occasion Cecil

Hall turned to Tubbs and asked him if he was for

the union; Tubbs replied that he was and then

Hall allegedly stated to Tubbs that if he did not

vote for the union he was going to throw Tubbs in

the lake.’ Tubbs stated that he laughed at Hall’s

comment because he did not take him seriously.

Tubbs further testified that approximately 2 weeks

prior to the election at another pro-union meeting

held at a facility known as Wayside Park, the em-

ployees present were talking about “sticking to-

gether” and Hall allegedly asked Tubbs if he was

still for the union and again Tubbs replied that he

was and Hall told him “if you don’t vote for the

union, I am going to kick your ass.” Tubbs stated

that he “kind of thought” Hall meant what he said

this time.

Tubbs further testified that about a week prior to

the election when he was punching his timecard,

someone asked him if he was still for the union

and he turned to see who it was, Hall was there

and allegedly said to him “if you don’t vote for the

union, I am going to kick you in your damn ass.”

In support of the aforementioned alleged incidents

of Hall threatening Tubbs the Employer also pre-

sented employee Wayne Crews who stated that he

attended approximately five of the pro-union meet-

1 This meeting was held at a site known as Leesville Dam

which is adjacent to a body of water.

44a

ings prior to the election and that at the Leesville

Dam meeting in late May 1973 he stated that he re-

called a conversation about a “rat in the crowd” and

Hall asking Tubbs if he was for the Union and after

Tubbs said yes Hall told him “if you ain’t with us I

will kick your damn ass in the lake.” Crews could not

recall what Tubbs’ reaction to the comment was and

when asked specifically if Tubbs had laughed Crews

stated that he didn’t think so but believes he would

have remembered it if Tubbs had in fact laughed.

In any event Crews stated that it was his impression

that Hall didn’t joke much and that everything he

said “the said like he meant it.” Crews also stated

that he was present at the Wayside Park pro-union

meeting and that at this meeting Hall turned to

Tubbs and said that “if you don’t vote for the union,

I am going to kick your damn ass.” *

The Petitioner presented employee Cecil Hall as a

witness and he denied ever threatening Tubbs but

did state that at the Wayside Park meeting Tubbs

made a complaint about one of the supervisor’s*

threatening him about kicking him in the rear if he

supported the union and at that point Hall went

up to Tubbs, put his hand on Tubbs’ shoulder and

said “Fred, you are in a world of trouble because

Jim is going to kick you if you do and I am going

to kick you if you don’t.” Hall further indicated

that both he and Tubbs and others present laughed

at this interchange of conversation.

2 Employee Gerald Doss also testified that sometime in June,

1973, Tubbs told him that Hall intended to “kick the shit”

out of Tubbs if he didn’t vote for the union.

* Testimony revealed that Jim Pruett was the supervisor

in question.

45a

During the course of the hearing Tubbs admitted

that the supervisor, Pruett, warned Tubbs that if

he voted for the union he would kick him in the

ass. He also admitted that pre-union employees

raised $11 for him to help him pay a court fine he

had; that at union meetings there was always food

and beer and those who attended ate and drank to-

gether; that after Hall made the second alleged threat

at Wayside Park, he still continued to attend the

pro-election pro-union meetings. Tubbs also admitted

that he was aware that the election was to be by

secret ballot and that “nobody was going to know

what you marked.” He also admitted that he suffered

no physical harm by anyone who supported the union

prior to the election nor did he observe that Hall

took any action which would cause physicai harm

to any other employee.

Tubbs also admitted that on two occasions after

the election and during the NLRB investigation of

objections, he told NLRB agents in affidavits given

on two separate occasions that he was not threatened

by Hall but that he was only threatened by Pruett.

At the hearing, Tubbs admitted that he had not

told the truth to the Board Agents on those two

occasions, although he stated that his impression

was that what he told the Board Agents would be

kept private.

2. The Employer also presented employee Jesse

Moon who stated that during a conversation he had

with employee James Ferguson in June, 1973 the

union was discussed and Moon stated “that if the

union came in and we came to a strike, that I

planned to work because I was not for the union.”

46a

In response to that statement Ferguson allegedly

told him that “that was the way people’s windshields

and cars got torn up.” Employee Ferguson was

called as a witness by Petitioner and testified that

during the election campaign he talked to Moon

about strikes but never threatened him.

A few days after the alleged Ferguson/Moon con-

versation Moon stated that he told employee David

Nichols that he was against the union and that if

it came to a strike that he planned to work. At this

Nichols allegedly stated that “they were going to

stand outside the door and they were not going to

let anyone in.” Nichols was not called as a witness:

Moon‘ admitted however that Nichols did not in-

dicate that he, as an individual, had plans to take

any action in the event of a strike.

3. The Employer presented employee David

Vaughn who testified that in June, 1973, about a

month prior to the election, he was approached by

Cecil Hail and asked whether he would join the

union and after Vaughn said no, Hall allegedly

stated that “if the Union did not come in, that he

did not want to work with any yellow-bellied sons

of bitches who did not want to vote for it.” Vaughn

stated that his impression was that Hall was just

stating his feelings when he made that comment.

Vaughn further indicated that the alleged comment

did not affect the way he had voted.

4. The Employer also presented Gerald Doss as a

witness who testified that he was told by Wayne

*Moon conceded that he was active in being anti-union

and initiated a petition among employees in an effort to

stop the election.

47a

Crews in early July, 1973 that he had better watch

himself because Hall was out to get him. Crews

allegedly told Doss that Hall, in a direct reference to

Doss, stated “that he woud like to kill the son of a

bitch” and after a pause added that ‘“‘no, he would

just like to work him over real good.” Doss ad-

mitted that Hall never directly threatened him or

caused him any physical harm and that he was

not frightened after hearing the remark attributed

to Hall and further that it had no affect upon the

way he voted. Doss also admitted that when he

was asked on August 8, 1973, by an NLRB agent

about the incident, he could not even recall who told

him about the threat Hall allegedly made.

In further support of this incident the Employer

presented Wayne Crews who stated that Hall ap-

proached him at work about 2 weeks prior to the

election and began to talk about Doss campaigning

against the union and it was on this occasion that

Hall allegedly directed the aforementioned comment

against Doss. In rebuttal Hall testified that he

never threatened Doss at any time.’

In addition to the above numbered incidents the

Employer submitted several witnesses who testified

that it was their impression that Hall was the chief

inside organizer and the chief proponent for the

union. In this connection, the evidence presented at

the hearing revealed that Hall had been employed

by the Employer as an electrician for approximately

one year prior to the start of the union’s cam-

paign in April, 1973. After the campaign began

5 Hall also indicated that he had known Doss for close to

30 years.

48a

Hall openly let emp.oyees know that he strongly

favored the union. Hall signed a union card and

admitted that he had encouraged other employees

to sign union cards.’ During the course of the cam-

paign Hall maintained telephone contact with the

Petitioner’s representative at a frequency of once

every 3 weeks and a more frequent telephone contact

with the Petitioner’s office.

Hall possessed no official designated capacity with-

in the organization of the Petitioner; he was not

appointed to be a spokesman for Petitioner or au-

thorized to act on its behalf. Hall and two other

employees were most frequently in contact’ with

the Petitioner’s representative Wayne Dernoncourt,

the vice-president and Upper South Director for the

Petitioner.

The organizing campaign was controlled by Der-

noncourt who admittedly is an agent of Petitioner

and belongs to a paid staff of union organizers.

Dernoncourt attended approximately five of the pro-

union meetings and in his absence no employee of

the Employer was designated to act on his behalf.

No employee of the Employer was paid any money

¢ Hall admits to asking some employees to sign union cards

but indicated that the cards were handed in to the union

individually by the card signers and not by him.

7In the Regional Director’s report it was noted that both

Cecil Hall and Acie Brumfield were elected by pro-union

employees to be contact men between the Petitioner and

employees. The record dves not establish such a conclusion

in that there was no election and no position officially re-

ferred to as “contact man.” The three employees contacted for

the purpose of setting up meetings or discussing problems

were Leonard Wills, Acie Brumfield and Cecil Hall.

49a

by Petitioner or reimbursed for any expense con-

nected with the union campaign.

It is undisputed that Hall* was strongly in favor

of the union; that he attended most, but not all, of

the pro-union meetings and that he acted as one of

the union’s observers during the conduct of the

election.

B. Analysis and Conclusion

In its memorandum of law submitted prior to the

close of the hearing, the Employer contended that

the alleged threats herein were of the type which

represented classic violations of Section 8(B) (1) (A)

of the Act and as such constituted a basis for setting

the election aside. The Board has held that the party

raising such a contention has the burden of proof in

establishing that the alleged threats were made

through the accountability or responsibility of the

union involved and that labor organizations shall be

held responsible for the conduct of their agents and

that the common law of agency should apply and,

further, that the burden of proof goes both to the

existence of the agency relationship as well as to the

nature and extent of the agent’s authority.’ Accord-

ingly, the issues raised by Objection No. 1 are wheth-

er an agency relationship existed between Hall and

the Petitioner and between other employees and the

Petitioner and to what extent these alleged threats

may have affected the outcome of the election.

® The Employer also brought forth the fact that Hall had a

criminal record and served time in jail but it was further

noted that such offenses did not relate to crimes involving

physical violence.

®* Sunset Line and Twine Company, 79 NLRB 1487.

50a

With respect to agency, the record reflects that

Hall was an active pro-union advocate who attended

most union meetings; signed a union card; asked

other employees to sign union cards; served as the

union’s observer at the election; and also served as

one of three informally selected employees for the

purpose of maintaining telephone contact with the

Petitioner’s representative in connection with setting

up union meetings and other related campaign ef-

forts. It appears clear that Hall was not and did not

act as an official representative of the union but

rather served as an enthusiastic volunteer who, along

with other employees, acted as a liaison man between

pro-union employees and the Petitioner. In so doing

he received no benefit or remuneration from Peti-

tioner and had no authority to speak for the Peti-

tioner. Moreover, there is no evidence to show that

Hall ever openly presented himself as the Petitioner’s

representative but rather his actions were limited to

expressing his pro-union views openly to other em-

ployees and to attempting to persuade other employ-

ees to share his sentiments. The Board has held that

such union advocacy by a rank and file employee does

not make that employee an agent.” The Board has

also held that agency status is not established by the

factors that an employee acted as a liaison vetween

the union and employees and maintained frequent

telephone contact with union officers.” Accordingly,

1° Poinsett Lumber and Manufacturing Company, 107

NLRB 234; Urban Telephone Corporation, 196 NLRB 23;

Bond Allen, Inc., 100 NLRB 216.

11 Petroleum Distributing Company, Inc., 208 NLRB No.

112.

5la

I find that at all times material herein, Hall was not

an agent of Petitioner.

Viewing now the context of the statements attrib-

uted to Hall, there arises substantial conflict in the

testimony concerning these threats. With respect to

the alleged threats made to Tubbs, it is clear that

these alleged statements were made at voluntarily

attended pro-union meetings and although Tubbs ad-

mitted that he considered the first threat to be in

jest, he began to consider it more seriously when the

alleged threat was renewed 2 weeks prior to the elec-

tion. In spite of this subjective reaction, Tubbs was

not deterred from attending additional union meet-

ings and he even attended the union’s victory party

after the election. Tubbs was also the recipient of

the sum of $11, which was loaned to him by pro-

union employees to assist him in paying a fine. Such

actions are inconsistent with any attempt to show

an atmosphere of fear and coercion. Moreover, Tubbs

disavowed two .affidavits which he read, swore to

under oath and gave to Board Agents conducting the

investigation of objections and this in itself creates

a very serious question as to his credibility. Noting

also the inability of Wayne Crews in his testimony

to recall Tubbs’ reaction to the threat about being

kicked into the lake at Leesville Dam at a time when

Tubbs himself readily admitted that he laughed at

this alleged threat and further noting the demeanor

of the witnesses, I do not credit the testimony of

either Tubbs or Crews concerning the alleged threats

to Tubbs. On the other hand, I do credit the version

of Cecil Hall who favorably impressed me on his

cemeanor as a generally credible witness. His ad-

mitted remark to Tubbs was clearly made in jest

52a

and prompted by the apparent threat Jim Pruett

made to Tubbs. Under a well established legal prin-

ciple the board does not permit a wrongdoer to profit

from the illegal act of its agent,’ but more signifi-

cantly, in this context Hall’s one remark to Tubbs

was made in jest and in such a posture had no effect

upon the election and objections based thereon should

be overruled.”

With respect to the testimony of Moon concerning

the two separate occasions in June, 1973 when Moon

announced his strong anti-union feelings to employ-

ees Ferguson and Nichols and made it clear that he

would work through any strike if the union came in

and if there was a strike, I find that, asswming ar-

guendo, such statements were made there is clearly

no evidence to establish that either Ferguson or

Nichols were agents of the Petitioner. It is also clear

that the remarks were made in a context that dem-

onstrated that neither Nichols or Ferguson had any

intention in any way of acting on these statements.

The remarks clearly referred to a hypothetical situ-

ation, that is, if, after the union won the election, it

called a strike and employees crossed the picket line

there could be incidents of property damage or physi-

cal restraint. The remarks were clearly unrelated to

how employees voted in the election and were merely

exchanges of views between employees in the milieu

of the work place. The Board has held that under

such circumstances these incidents could have no im-

12 General Dynamics Corp., 181 NLRB 874.

18 Pepsi-Cola Bottling of Brookfield, Inc., 199 NLRB No.

74.

53a

pact on the votes cast by the employees,“ and the

alleged statements of these employees could have been

properly evaluated.

With respect to the testimony of David Vaughn

who was allegedly told by Cecil Hall that if the union

did not come in Hall “did not want to work with any

yellow bellied sons of bitches who did not want to

vote for it, “I find that, assuming arguendo, that

such a statement was made Vaughn clearly indicated

that it was his subjective reaction that Hall was

just stating his feelings on the matter. The Board

has long held that exaggerations, inaccuracies, half-

truths, name calling and minos misstatements, while

not condoned, will not be grounds for setting aside

an election.”

) With respect to the testimony of Gerald Doss, it

is clear that Hall never directly threatened him and

that after hearing the alleged threat second-hand,

from employee Wayne Crews, Doss clearly indicated

that he was not frightened and that the remark had

no effect upon the way he voted. There was no evi-

dence to show that this alleged threat received wide

circulation or that the employee who was the recipi-

ent of the alleged threat was affected in any way by

™ Head Ski Company, Inc., 192 NLRB 217; The Great

Atlantic & Pacific Tea Company, Inc., 177 NLRB 942; Monroe

Auto Equipment Co., 186 NLRB 90. In any event, were it

necessary to make a credibility resolution based on demeanor,

I would not credit the testimony of Moon with respect to any

alleged threats made to him by either Ferguson or Nichols.

18 Georgia-Pacific Corporation, 199 NLRB No. 438. More-

over, based on Hall’s favorable demeanor, I do not credit this

witness with respect to attributing this remark to Hall.

54a

this alleged misconduct in the casting of his ballot

at the polls.”

Based on all of the foregoing and noting particu-

larly that the entire critical period” prior to the

conduct of the election was totally free from any ac-

tual physieal violence or property damage and that

the employees who allegedly made coercive state-

ments were not officers or agents of Petitioner or so

closely associated with Petitioner as to warrant other

employees into believing that they had authority to

act for it and that there was no evidence to establish

16 Monroe Auto Equipment, supra. Moreover, based on my

observations and the demeanor of the witnesses, I do not

credit the testimony of Crews as to this statement and note

that Doss was unable to recall who relayed the alleged threat

to him during the course of the investigation of the objections

at a time proximate to the alleged relating of this threat.

11 Goodyear Tire and Rubber Company, 138 NLRB 453,

where the Board in considering objections to an election

looks only to evidence of conduct which occurred between

the time the petition is filed and the election is held. In this

connection, it is noted that evidence of post-election miscon-

duct could have no impact or effect upon the election atmos-

phere and I so find. In further support of Objection No. 1,

the Employer submitted through the testimony of Tubbs and

Crews that during the course of the campaign, employees

Cecil Hall, Acie Brumfield and Monte Kegly indicated that

those who supported the union or attended union meetings

would be fired if the union lost the election. No specific in-

stances of such statements were presented and I do not credit

either Crews or Tubbs as to whether they were even made.

Assuming arguendo that such statements were made, it is

clear that the union had no authority with respect to dis-

charging employees and employees would be generally cap-

able of recognizing that the union had no such authority.

Rio De Oro Uranium, Inc., 120 NLRB 91.

55a

that the Petitioner or any of its agents ever author-

ized, ratified or condoned any coercive conduct, I find

that Employer's Objection No. 1 does not raise sub-

stantial or material issues with respect to conduct

affecting the results of the election.

II. OBJECTION NO. 5:

A. Employer’s Objection No. 5 states as follows:

During the critical period herein the offici

]

NLRB notices of election were iencupiele

marked and defaced by Petitioner and its sup-

porters so as to benefit Petitio

pas BoD ner and mislead

In support of this objection the Employer presented

two supervisors as witnesses who testified that an

NLRB Notice of Election with a sample ballot was

posted in the quality assurance laboratory where

four eligible employees worked. On the day before

the election, one’ supervisor observed employee Wilson

Reynolds use a black felt tip pen and place four dots

in each corner of the “Yes” box on the plastic over-

sheet covering the Notice of Election and this super-

visor warned him that it was unlawful to deface the

notice. On the next day between polling sessions the

Same supervisor observed Reynolds use a ballpoint

pen and mark an “X” in the “Yes” box on the plastic

oversheet covering the Notice of Election and again

warned him that it was unlawful to deface the notice.

The second supervisor observed that there was an

improper marking on the plastic oversheet but neither

supervisor took the action of removing the plastic

oversheet or reporting the incident to higher Employ-

er authority or reporting the matter to the Board

56a

Agent who was at the Emprc*s premises on the

day of the election.”

The record reveals that Reynolds was « supporter

of the union but also that he had signed the petition

distributed among employees for the purpose of ; noti-

fying the union that employees were no | ager inter-

ested in having an election. There was no evidence

to establish that Reynolds was an agent of the Peti-

tioner or was acting on the Petitioner’s behalf at any

time or that the Petitioner condoned or encouraged

the misconduct of this employee over which it had

no authoritative control.

B. Analys‘» and Conclusion

The credited testimony establishes that on the day

before the election and between polling periods on the

day of the election, an employee improperly marked

the clear plastic oversheet covering one of the NLRB’s

Notices of Election. It is clear that one of the Em-

ployer’s supervisors was present at the time the

18 Based on my observations of the witnesses and their

demeanor, I credit the version of the supervisors with re-

spect to the time the notices were marked and I do not credit

the testimony of Reynolds or his corroborating witness Denis

DeLapp on this point. Reynolds admitted marking the plastic

oversheets with the two improper insertions but stated that

he made the “X” in the “Yes” box after the polling was over.

In an affidavit given to the Boara Agent conducting the in-

vestigation Reynolds denied ever placing an “X” on the sample

ballot and at the hearing explained this apparent inconsistency

by stating that his mark was placed not on the sample

ballot but on the plastic. Such an obvious attempt at evas-

siveness does not lend to the credibility of this witness on

this point, and accordingly, I do not credit him with respect

to the time he marked the notices. |

57a

markings were made an‘ I find that he could have,

quickly and efficiently, rectified the situation by ei-

ther simply removing the plastic oversheet or report-

ing the incident to the plant manager or the Board

Agent. I also find that in marking the sample ballot

Reynoids was acting on his own as a prankster and

an individual and that his improper conduct could

not be imputed to either of the parties.

The Board has held that in cases where similar

markings were made such defacement was not suffi-

cient to warrant setting the election aside where there

was no evidence submitted to any way indicate that

the union was responsible for the defacement and

further where the evidence shows that no steps were

taken to remove the altered notices.” In its mem-

orandum of law, the Employer relies upon Mademoi-

selle Shoppe, Inc., 199 NLRB No. 147, concerning the

defacement of notices but that case is clearly distin-

guishable on the ground that the evidence therein,

unlike the instant case, established that an official

agent of one of the parties to the election made the

defacement.

Based on the foregoing, I find that Employer’s Ob-

jection No. 5 does not raise substantial or material

issues with respect to conduct affecting the results

of the election.

III. OBJECTIONS NOS. 7 AND 8:

A. Employer’s Objection No. 7 states as follows:

* Keller Dye & Finishing Company, 184 NT PR No. 54;

Lloyd A. Fry Roofing Company, 108 NLRB izyi; Murray

Chair Company, Inc., 119 NLRB 714 and P. H. Snow Canning

Company, Inc., 119 NLRB 714.

58a

During the time when the polls were opened the

Board Agent in charge of the election engaged

in conversation and made remarks to the elec-

tion observers, three of whom were eligible

voters which conversation and remarks were

prejudicial to the Employer.

Employer’s Objection No. 8 states as follows:

During the time when the polls were open the

Board Agent in charge of the election permitted

the union election observer to engage in conduct

which destroyed the appearance of neutrality

necessary to the conduct of a fair election.

In that both of these objections relate to the period

when the polls were open and the conduct of the

Board Agent and similar issues are involved they

shall be considered together.

In support of these objections the evidence pre-

sented at the hearing reveals that on Friday, July 20,

1973, the NLRB election was held in the Employer’s

cafeteria between the hours of 5:30 a.m. and 5:45

a.m. and between the hours of 1:30 p.m. and 2:30

p.m. and that after the close of the second polling

period all ballots were co-mingled and counted.

Both the Employer and Petitioner had designated

two observers each for the two polling sessions, Prior

to the opening of the polls the Board Agent read a

list of instructions to the observers and informed

them that they could object to any conduct they

thought improper.

In the first voting session four eligible employees

voted, three of whom were observers; the fourth ob-

server was not in the unit and therefore not eligible

to vote. During this first session the Board Agent in-

59a

structed the observers to keep the voting eligibility

list face down in that he had previously informed

them that observers could not keep a list of those

who had voted.

During the course of both polling sessions all ob-

servers wore buttons designating them as observers

and two of the observers, one for the Employer and

one for the Petitioner, were specifically assigned to

perform the task of checking names off the voting

eligibility list. No observer left the polling area at

any time during either polling session.

The record reveals that one of Petitioner’s observ-

ers, Cecil Hall, requested, and was granted permis-

sion from the Board Agent to stand and throughout

the course of both polling sessions he did stand while

other observers sat. The testimony of all observers

establishes that Hall stood in the general area of a

coin machine which was adjacent to the observers’

checking table and recessed in from the corridor

through which eligible employees seeking to vote ap-

proached the observer table and the Board Agent.

No observer recalled that Hall ever stepped out into

the corridor and I credit their testimony in this re-

gard on the ground that as observers they would be

most readily able to indicate if Hall did move into

the corridor or in front of the observers’ table.

The record is clear in establishing that there were

no conversations between observers and eligible vot-

ers or between the Board Agent and eligible voters

during the polling periods.”

2°It was stipulated that the Board Agent’s conversations

with observers which were allowed to have contained objec-

60a

The Employer’s observers testified that during in-

termittent periods while the polls were open, observ-

ers for both parties engaged in conversations with

the Board Agent. In response to a question asked

by an Employer observer the Board Agent replied

that he was a member of a union and in response to

another question he stated that he knew Wayne Der-

noncourt, the Petitioner’s agent. During these con-

versations, he is also alleged to have stated he had

participated in an election where the counting of

ballots was started before the polls were closed; that

the union to which he belonged had done something

for him and that in addition to knowing Dernon-

court, he had worked with him.” It was also alleged

that the Board Agent requested that the observers

sign the certification of conduct approximately 1 to

3 minutes prior to the close of the polls. It is undis-

puted that all observers did sign the certification of

conduct and that it was signed after all eligible em-

ployees had voted and that during the course of the

balloting no observer raised any objection to the

Board Agent. It is also undisputed that the Board

Agent allowed observers to thumb through the voting

eligibility list during the second polling period.

tionable remarks took place only after all the eligible ob-

servers had voted and only during the second polling session.

21 The Board Agent was not called by any party to testify

and the testimony of the Employer’s observers remains sub-

stantially uncontradicted, although the Petitioner’s observers

testified that they did not hear the Board Agent make a

comment about counting ballots before the polls closed.

6la

B. Analysis and Conclusions

The record clearly establishes and there is no dis-

pute that Ceci] Hall was a known pro-union advocate

and that during the polling period in which he served

as a union observer he requested and was granted

permission to stand rather than sit. The record

clearly establishes that he did not engage in any im-

proper conduct or electioneering while serving as an

observer and I so find. The Board has long held that

the mere presence of a known union supporter serv-

ing as an observer is not objectionable.” The Board

has also held that the identity of election observers,

as well as the fact that they represent the interests

of the parties, is generally well known to the em-

ployees and there is no evidence here that the ob-

server failed to follow any instructions or interfered

with the election process in any way.”

With respect to the conduct of the Board Agent, the

record is clear that, assuming arguendo, he made all

the alleged objectionable remarks attributed to him,

said remarks were uttered only in the presence of ob-

servers who had already voted or who were not eligi-

ble to vote and who did not leave the polling area at

any time during the course of the election. It is the

Board’s policy that statements made at a time when

they could not have possibly affected the election re-

sults will not warrant setting aside an election.”

22 Stokely Foods, Inc., 81 NLRB 449. It appears that Hall

stood to prevent employees waiting to vote from using vend-

ing machines which were directly behind him.

28 Western Electric Company, Inc., 87 NLRB 183; Lark-

wood Farms, A Div. of the Pillsbury Co., 178 NLRB 226.

*« Janler Plastic Bold Corp., 208 NLRB No. 37; Wald Sound,

Inc., 203 NLRB No. 61, where a Board Agent’s remark made

62a

The Board’s job is to make reasonably certain that

the election reflected the true sentiments of the voters

and the election must be appraised realistically and

practically and should not be judged against theoret-

ically ideal but nevertheless artificial standards.” In

its memorandum of law, the Employer cited Athbro

Precision Engineering Corp., 166 NLRB 966, wherein

the Board set an election aside on the ground that

the behavior of the Board Agent, in drinking beer

with a union agent between polling sessions, gave an

appearance of irregularity to the election and de-

parted from the high standards the Board seeks to

maintain. While said conduct has clearly never been

condoned, this case is distinguishable on its facts but

it is noted, moreover, that the Board vacated its or-

der in that case and later certified the union.”

Based on the foregoing, I find that Employer’s Ob-

jections Nos. 7 and 8* do not raise substantial or

after the ballots had been cast could not have affected the

election results.

25 The Regency Hyatt House, 180 NLRB 489.

26 Athbro Precision Engineering Corp., 171 NLRB No. 4.

2771 find absolutely no merit in the Employer’s contention

that the signing of the Certification of Conduct would be a

basis for setting aside the election where the record shows

that all eligible employees voted prior to the signing of the

Certification and where there is a minor dispute among ob-

servers as to whether the Certification was signed at the close

of the polls or approximately 1-3 minutes prior to the close

of the polls. I further find no merit to the Employer’s con-

tention that it was objectionable conduct for the Board Agent

to allow the observers to freely thumb through the voting

eligibility list during the second polling session where the

record clearly shows that no observers kept a list of those

who voted and no observer left the polling area during that

second polling session.

63a

material issues with respect to conduct affecting the

results of the election.

RECOMMENDATIONS

Having found that Employer’s Objections Nos. 1,

5, 7 and 8 do not raise substantial and material is-

sues with respect to conduct affecting the results of

the election, it is recommended that these objections

be overruled. Inasmuch as the Board in its Order

Directing Hearing adopted the Regional Director’s

recommendations on overruling the Employer’s re-

maining objections, it is further recommended that a

Certification of Representative issue.

As provided in the Board’s Order Directing Hear-

ing, any party may within ten (10) days from the

date of issuance of this Report file with the Board

in Washington, D. C., an original and seven (7)

copies of exceptions. Immediately upon the filing of

such exceptions, the party filing the same shall serve

a copy thereof on the other party and shall file a copy

with the Regional Director. If no exceptions are filed

thereto, the Board will adopt the recommendations of

the Hearing Officer and will issue the appropriate

Certification.

Signed at Newark, New Jersey, this 4th day of

April, 1974.

/s/ Joseph V. McMahon

JOSEPH V. MCMAHON

Hearing Officer

National Labor Relations Board

Twenty-second Region

970 Broad Street

Newark, New Jersey 07102

64a

APPENDIX F

Altavista, Va.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 5-RC-8530

ABBOTT LABORATORIES, ROSS LABORATORIES DIVISION,

and Employer

TEXTILES WORKERS UNION OF AMERICA,

AFL-CIO, CLC

Petitioner

DECISION AND ORDER

Pursuant to a Stipulation for Certification Upon

Consent Election approved on May 22, 1973, an elec-

tion by secret ballot was conducted on July 20, 19738,

under the direction and supervision of the Regional

Director for Region 5 among the employees in the

appropriate unit. At the conclusion of the election,

the parties were furnished with a tally of ballots

which showed that 42 voters cast ballots, of which 21

were for, and 19 were against, the Petitioner, and 2

were challenged. By agreement of the parties, the

2 challenged ballots were opened, and a revised tally

prepared which showed that 22 votes were for, and

20 votes were against, the Petitioner. Thereafter, the

Employer filed timely objections to conduct affecting

the results of the election.

In accordance with the National Labor Relations

Board Rules and Regulations, the Regional Director

65a

conducted an investigation and, on September 26,

1978, issued and duly served upon the parties his

Report on Objections and Challenges. He recom-

mended that all 10 objections of the Employer be

overruled and that a Certification of Representative

issue, The Employer filed timely exceptions to the

Regional Director’s Report.

The Employer thereafter filed a Motion for Recon-

sideration with the Regional Director.

The Regional Director denied this motion in a Sup-

plemental Report on November 29, 1973. The Em-

ployer then filed timely exceptions to the Supple-

mental Report.

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.

Upon the entire record in this proceeding the Board

finds: ;

1, The Employer is engaged in commerce within

the meaning of the Act and it will effectuate the pur-

poses of the Act to assert jurisdiction herein.

2. The Petitioner is a labor organization claiming

to represent certain employees of the Employer.

8. A question affecting commerce exists concern-

ing the representation of employees of the Employer

within the meaning of Section 9(c)(1) and Section

2(6) and (7) of the Act.

4. The parties stipulated, and we find, that the

following employees constitute a unit appropriate for

the purposes of collective bargaining within the mean-

ing of Section 9(b) of the Act:

66a

All production and maintenance employees em-

ployed by the Employer at its Altavista, Vir-

ginia, facility, but excluding all office clerical

employees, professional employees, guards and

supervisors as defined in the Act, as amended.

5. The Board has considered the Regional Direc-

tor’s Report and Supplemental Report and the Em-

ployer’s exceptions thereto, and hereby adopts the

Regional Director’s rulings and recommendations

with the following modifications:

We find that the issues raised by the Employer’s

Objections 1, 5, 7, and 8 can best be resolved by a

hearing. We shall therefore order that a hearing

be held upon these objections.’

ORDER

IT IS HEREBY ORDERED that a hearing be

held before a Hearing Officer to be designated by the

Regional Director for Region 5, for the purpose of

receiving evidence to determine the issues raised by

the Employer’s Objections 1, 5, 7, and 8, including

whether or not Cecil Hall was an agent of Petitioner,

and that said Regional Director be, and he hereby

is, authorized to issue notice thereof.

IT IS FURTHER ORDERED that the Hearing

Officer designated for the purpose of conducting the

hearing shall prepare and cause to be served on the

parties a report containing resolutions of the credi-

bility of witnesses, findings of fact, and recommenda-

tions to the Board as the disposition of the issues.

1 Member Kennedy would also include Employer’s Objection

2 among the objections for which a hearing will be held.

67a

Within 10 days from the (Ste of issuance of such

report, any party may file with the Board in Wash-

ington, D.C., an original and seven copies of excep-

tions. The party filing the same shall serve a copy

thereof on the other party, and shall file a copy with

the Regional Director. If no exceptions are filed

thereto, the Board will adopt the recommendations of

the Hearing Officer and will issue th i

order of certification. ea iain

Dated, Washington, D.C., January 16, 1974,

EDWARD B. MILLER, Chairman

HOWARD JENKINS, JR., Member

RALPH E. KENNEDY, Member

NATIONAL LABOR RELATIONS BOARD

[SEAL]

68a

APPENDIX G

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

REGION 5

Case No. 5-RC-8530

ABBOTT LABORATORIES,

Ross LABORATORIES DIVISION

Employer

and

TEXTILE WORKERS UNION OF AMERICA,

AFL-CIO, CLC

Petitioner

ONS

SUPPLEMENTAL REPORT ON OBJECTI

AND DENIAL OF MOTION FOR

RECONSIDERATION

ber 26, 1973, in a Report on Objections

al tame ' the undersigned recomemnded that

the Employer’s objections be overruled in their en-

tirety.

Timely exceptions to the report were filed by the

Employer.

On November 15, 1973, the Employer filed with

the undersigned a Motion for Reconsideration re-

lying in support thereof on a signed statement fur-

ballots

1 Prior to issuance of the report the two challenged

were opened and counted pursuant to the agreement of the

parties and Petitioner’s majority was thereby established.

nished it by Frederick D. Tubbs* on November 9,

1978, a copy of which is attached hereto as Ap-

pendix No, 1.

Paragraphs 2 through 5 of Tubbs’ November 9,

1973, statement furnished by the Employer in sup-

port of its motion are relevant’ to the issue here

before the undersigned.

The pertinent paragraphs are:

2. Some time in May or June of 1973 I at-

tended a Union meeting at Leesville Dam.

There were about 15 other Ross employees

present at the meeting. Before the meeting

started, Cecil Hall said to me he would throw

me in the lake if I did not vote for the Union.

Just before he made this remark the group

was talking about someone having dropped

out and it was said there was a rat among

us. Hall asked me like he did not trust me

if I was still for the Union. I said I was

and this is when he said he would throw me

in the lake if I did not vote for the Union.

There is a lake at the Dam site.

3. About 2 weeks later at another union meet-

ing held at Wayside Park, Hurt, Virginia,

there were 10 or 11 Ross employees present.

They were talking about sticking together

* Tubbs furnished two prior affidavits to Board Agents dur-

ing the investigation of the objections.

* Paragraph 1 merely sets forth Tubbs’ job tenure and

Paragraph 6 relates to post election conduct. Although not

specifically stated in the motion it is apparent that Paragraphs

2 through 4 are in support of Objection No. 1 and that Para-

graph 5 is in support of Objection No. 2.

70a

and how every time the Union had a meeting

a supervisor found out what was said. I

forgot just what it was that was said before

but at one point of this discussion Cecil Hall

said to me that he would kick my damn ass

if I did not vote for the Union. Buddy Crews

was in the group at this time. I felt at the

time that Cecil Hall meant what he said.

4. Not too long after this meeting I was on my

way to punch in near the time clock at the

plant when someone asked me if I was for

the Union. I said I didn’t know. Cecil Hall

said to me that he would kick my ass if I

did not vote for the Union. I believe he

meant this remark.

5. At some of the Union meetings I attended

and at different times around the plant I

heard Cecil Hall, Monte Kegley, and Acie

Brumfield say to other employees including

myself that if the Union did not get in the

company would fire all of us who were for

the Union. These remarks were made after

April of 1973 and before the July election.

In his prior affidavits * given by Tubbs to the un-

dersigned’s agents on August 8, 1973, and S. ptember

13, 1973, respectively, Tubbs reports no threats on

his person made by Cecil Hal} but does report threats

of a similar nature made to him by one of the Em-

ployer’s supervisors. In his fu affidavit, Appendix

No. 2, Tubbs categorically staves, “IT was never

threatened by Cecil Hall.”

‘Copies of which are attached hereto as Appendices Nos.

2 and 3, respectively.

71a

Cecil Hall in an affidavit ® given the undersigned’s

agent on August 21, 1973, categori i

, , gorically den

he threatened Tubbs or any other ae =

One employee witness Wa

_ On é yne P. (Buddy) Cre

in his affidavit, supports Tubbs’ account ~~ jin

paragraph 3 of his November 9, 1978, signed state-

ment, Appendix No. 1, as follows:

Also during the Campaign, around t

of June, 1973 at a union meeting aay

at Wayside Park. I don’t remember how the

a was started but Cecil Hall told

red Tubbs another employee that if he didn’t

vote the union, he, Cecil, would kick him in his

rear end. I don’t know how Cecil Hall meant

this statement, that is I don’

he was serious or not. ee

In the opinion of the undersi

gned the conflicti

statements made by Tubbs in his various ba

seriously detracts from the probative value of the

November 9, 1973, signed stateme i

, , t

Employer in its motion. —

With respect to the incident corrobo

ployee Crews the undersigned roe gee ‘the

threat, if made, when viewed in the context of a

campaign devoid of any act of physical violence, is

insufficient to warrant setting aside the election

Furthermore, Tubbs in his August 8, 1973 affidavit

states that he was never threatened by Hall. Con-

sequently, it appears that Tubbs did not regard the

alleged remark, made in shop vernacular, as a threat

of personal injury. Accordingly, the undersigned

* A copy of which is attached hereto as Appendix No. 4

72a

finds no basis to reconsider his recommendation under

Objection No. 1.

The remarks attributed to Hall, Kegley and Brum-

field by Tubbs in paragraph 5 of Appendix No. 1,

if made, constitute their assertions of what the Em-

ployer would do if the Petitioner lost the election.

Such remarks constitute campaign rhetoric similar to

that considered with respect to Objection No. 2 in

the Report on Objections and Challenges and conse-

quently does not carry the same onus as a threat

made by a party capable of executing it. Rather, it

is a partisan remark designed to emphasize the voters

need of Petitioner’s protection. The Board considers

employees to be capable of evaluating such campaign

statements.

Accordingly, the undersigned denies the Employer’s

Motion for Reconsideration.

Dated at Baltimore, Maryland this 29th day of

November 1973.

[SEAL]

WILLIAM C. HUMPHREY

William C. Humphrey, Regional Director

National Labor Relations Board, Region 5

1019 Federal Building, Charles Center

Baltimore, Maryland 21201

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APPENDIX H

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

REGION 5

Case No. 5-RC-8530

ABBOTT LABORATORIES,

Ross LABORATORIES DIVISION

Employer

and

TEXTILE WORKERS UNION OF AMERICA,

AFL-CIO, CLC

Petitioner

REPORT ON OBJECTIONS AND CHALLENGES

Pursuant to a Stipulation for Certification upon

Consent Election * approved by the Regional Director

on May 22, 1973, a secret-ballot election was con-

ducted under his supervision on July 20, 1973, with

the following results:

Approximate number of eligible voters 42

Void ballots 0

Votes cast for Petitioner 21

Votes cast against participating labor organization __.19

Valid votes counted 40

Challenged ballots —_ tn

Valid votes counted plus challenged ballots 42

* The unit is: “All production and maintenance employees

employed by the Employer at its Altavista, Virginia, facilitiy

but excluding all office clerical employees, professional em.

ployees, guards and supervisors as defined in the Act, as

amended.”

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The challenged ballots reflect the results of the

election.

THE CHALLENGES

Pursuant to an agreement of the parties, the two

challenged ballots were opened and counted on Au-

gust 8, 1973. There was one vote cast for the Pe-

titioner and one vote cast against the participating

labor organization. Thus of the 42 valid votes cast

Petitioner has received 22, a majority, and there are

no challenged ballots remaining for disposition.

THE OBJECTIONS

Timely objections to conduct affecting the results of

the election were filed by the Employer on July 27,

1973.’

The undersigned has caused an investigation to be

made, has considered the results thereof and reports

as follows:

The objections submitted by the Employer are as

follows:

Objection No. 1

During the critical period herein the Petitioner

threatened employees of Ross with physical violence

to both person anc property.

In an affidavit furnished a Board Agent an em-

ployee states:

2 The eligibility period is the payroll period ending May 20,

1973. The petition was filed on April 13, 1973. The under-

signed will consider on its merits only that alleged interfer-

ence which occurred during the critical period which begins

on and includes the date of the filing of the petition and ex-

tends through the election. Goodyear Tire and Rubber Com-

pany, 188 NLRB 453.

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On June 5, 1973, I had a conversation with Jim

Ferguson in the control room in the power house.

Jim Ferguson was a known union supporter. We

were talking about what might happen if the

union did come in and we went on strike. He

knew that I was against the union. I told him

that if the employees did go on strike that I

would still come to work because I didn’t want

any part of the union to begin with. He said

That’s the way that people’s car windshields

and cars get torn up.”

* * * *

On June 9, 1973, I had a conversation with

David Nichols, another power house employee.

The conversation took place in the cafeteria. We

were talking about the union and strikes, ete.

He said that if they went on strike they (the

union) would stand on the outside of the door

and not let anyone come to work.

The Employer has offered no evidence and none has

been adduced during the investigation that Ferguson

or Nichols were agents of the Petitioner or that the

alleged remarks to the witness were authorized by

or known to the Petitioner.

Employees Ferguson and Nichols deny having made

the above or similar threats and further deny having

been designated by Petitioner to act in its behalf in

any capacity.’ Accordingly, the aforenoted remarks,

if made, cannot be imputed to Petitioner.

The Board has held that in considering whether

specific acts reasonably tend to interefere with the

uninhibited exercise of free choice it accords less

* Confirmed by Petitioner’s Regional Director in an affidavit

to the undersigned’s agent.

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weight to the conduct of third persons than to that

of the parties. The Board noted, “the conduct of third

persons tends to have less effect upon the voters than

similar conduct attributable to the Employer who

has, or the union which seeks, control over the em-

ployees working conditions.”* Accordingly, the un-

dersigned finds that the above threats alleged to have

been made by Ferguson and Nichols do not constitute

grounds for setting aside the election.

Further, in support of Objection No. 1 the Em-

ployer produced additional employee witnesses who

furnished affidavits to the undersigned’s agent attri-

buting to employee Cecil Hall,’ threats of physical

violence as follows:

Witness A:

I don’t remember who told me, but sometime in

June or perhaps a little later then June, I heard

from two employees that Cecil Hall made a state-

ment to the effect that: One said “You had bet-

ter watch out because Hall is after you” and

the other said that Hall had said that if I didn’t

ease up, he (Hall) was going to work me over.

Around the same period of time, Fred Tubbs

told me that “they” had told him that they were

going to kick the shit out of him if he didn’t

vote for the union. He did not say who “they”

were, I asked him about this at a later date, but

he would not admit it.

‘Orleans Manufacturing Company, 120 NLRB 630, 633.

‘Hall and Acie Brumfield were elected by pro-union em-

ployees to be the “contact men between the employees and

Petitioner. Both later served as Petitioner’s election observers.

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Witness B:

About a month before the election, I along with

Ron Bean and a couple of other employees whose

names I can’t remember were talking about the

union with Cecil Hall. Hall asked me if I was

going to join the union. I told him “no.” Hall

said that it the union did not come in, he was

going to quit because he didn’t want to work

with any “yellow-bellied son-of-a-bitches.” After

he said that the conversation broke up and ev-

erybody went back to work.

Witness C:

. .. Sometime in June, 1973, I was talking with

Cecil Hall a known union supporter, in the pack-

aging lab. He stated to me that he would like

to beat the hell out of Gerald Doss, another em-

ployee. Gerald Doss works on the packaging

line. He had been trying to get the employees

to vote against the union. I don’t know whether

Cecil Hall meant this statement or not.

Hall in his affidavit denies all of the above allega-

tions.

With regard to the statement of witness A above,

it appears that a hearsay threat to his person was

communicated to him by persons he cannot identify.

Witness A reports further hearsay, thrice removed,

in connection with Fred Tubbs.

Tubbs in an affidavit denies that Hall or anyone

else ever threatened him for not supporting Petitioner

and that he never reported any such threat to wit-

ness A.’ Thus Witness A does not furnish probative

evidence in support of the objection.

* Tubbs in his affidavit describes a series of threats made

to him by a supervisor if he voted for Petitioner.

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Witness B reports nothing more than a threat by

Hall to quit if the Petitioner did not win the election.

Thus

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