Brandenburg Telephone Co.

BRANDENBURG TELEPHONE COMPANY Brandenburg Telephone Company and Electrical Workers Local Union No. 369, International Brotherhood of Electrical Workers, AFL-CIO. Cases 9-CA-3812 and 9-RC-6601. May 22,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On November 2, 1966, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other alleged unfair labor practices, and recommended that the allegations of the complaint pertaining thereto be dismissed. In addition, the Trial Examiner found merit in certain objections to the election in Case 9-RC-6601 and recommended that the election be set aside. Thereafter, the Respondent, the Charging Party, and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case including the Trial Examiner's Decision, the exceptions, and briefs, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. 1. We find, in agreement with the Trial Examiner, that the Respondent violated Section 8(a)(1) of the Act and interfered with the Board election conducted on January 14, 1966, and that the election should be set aside. Our findings in this regard are based only upon the following conduct: i The Respondent has excepted to many of the credibility findings made by the Trial Examiner It is the Board 's established policy, however , not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the preponderance of all the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products , Inc , 9] NLRB 544, enfd 188 F.2d 362 (C.A. 3) The Respondent also contends that the Trial Examiner was biased and prejudiced against the Respondent Based upon our review of the entire record , however, we find this contention to be without merit 825 (a) The Respondent violated Section 8(a)(1) by Vice President Tobin's speech to employees on November 8, 1965, in which he said that "a Union can do nothing for you that you cannot do better for yourself or the Company will do for you voluntarily"; it was his "honest opinion that a Union will be bad for both the Company and the employees"; he could not see what the employees hoped to gain "by paying" the Union "because we have always tried to do our best for you"; and employees should retrieve their signed designation cards and relegate them to the wastebasket "where they belong." In the entire context of this case, we find that these remarks were calculated and tended to impress upon the employees the futility of selecting a bargaining representative,2 and to intimidate them into withdrawing their designations and abandoning the Union.3 (b) The Respondent violated Section 8(a)(1) of the Act and interfered with the election by the following conduct between November 16, 1965, when the petition in Case 9-RC-6601 was filed 4 and January 14, 1966, when the election was held: (1) Vice President Tobin told employee Bullock, sometime in the latter half of November 1965, that he wished Bullock would get his card back if he had signed one, and told him for the first time that his job was a permanent one, that he "would not be laid off on rainy days" and that he would be treated "right"; (2) Vice President Tobin interrogated Bullock in the early part of January 1966 as to how he stood in reference to the election and asked him to "give me all the help you can"; (3) Tobin called Singleton into his office in January 1966 and told him he did not need the Union to receive a pay raise and that he would "make it all right," and, on January 7, 1966,5 asked Singleton what he felt or thought about the Union and to "see what you can do for me"; (4) Tobin dispatched letters to employees on November 23 and December 14, 1965, and January 8, 1966, in which he repeated statements made in his November 8 speech set forth above, and told the employees that the only way the Union could force the Company to agree to its demands was by striking, and that the employees would derive absolutely no benefits if the Union won the election; (5) the Respondent withheld the extra Christmas bonus, which amounted to 2 weeks' pay, from voting unit employees while granting the bonus to all i Orkin Exterminating Company ofFlorida, Inc., 152 NLRB 83, 93. S Dean Industries, Inc and Howard Stafford, Mayor of Pontotoc, Mississippi , 162 NLRB 1078, 1088 , Griffith Ladder Corporation, 159 NLRB 175, 187-188 " The Trial Examiner in footnote 29 of his Decision erroneously referred to January 14, 1965, as the date the petition was filed 5 The Trial Examiner erroneously referred to this date as January 7, 1965 164 NLRB No. 26 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nonunit employees,' and Tobin and Supervisor Henderson stated that unit employees did not receive the bonus because of the Union, or the pending election. 2. We agree with the Trial Examiner's conclusion that the Respondent also interfered with the election by Tobin's interrogation of employees at the Vine Grove office on November 30, 1965, as to why they would want a union and telling them he did not know what a union could do for them that they could not do for themselves, that they did not need a union to get a pay raise, and he did not believe the Union could do anything for the employees.7 3. In disagreement with the Trial Examiner, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. As described more fully in the Trial Examiner's Decision, the Union wrote to the Respondent on November 10, 1965, requesting recognition as bargaining representative of the Respondent's employees. At the time, the Union had obtained authorization cards from 15 of the 27 employees who were later found, by agreement of the parties, eligible to vote in the election, which the Union lost. The Trial Examiner found that the Union did not represent a majority of employees when it sought recognition because 10 of the employees signed union authorization cards at the Ritz Restaurant "upon oral representations that such cards would not be used other than for election purposes." We do not agree that the record supports the Trial Examiner's conclusion that such representations were made to these employees. The cards which were used by the Union clearly state on their face that the signer authorizes and designates the Union "to represent me in collective bargaining with my employer." No other purpose for the cards is shown on either the face or the back of the cards. Six witnesses testified as to what was said at the Ritz Restaurant meeting where the 10 cards in question were signed. Five of the witnesses testified the employees were told cards were needed for an election. The sixth witness, upon whose testimony the Trial Examiner apparently based his conclusion, was employee Martin, who testified that Union Representative Reesor "told us that these cards were not for, to get the Union in, but were for the Union to represent us to get an election to get the Union," and that "there wasn't anything they could do until after the election." However, we consider this testimony ambiguous, and find that it does not constitute a clear statement that the cards would not be used for other than election purposes. Moreover, to the extent that it does constitute such a statement, it is unsupported by any of the other witnesses. In these circumstances, and in view of the clear and unambiguous representation in the face of the cards, we find that the evidence fails to establish that Martin or the other employees involved were told that the only purpose for the cards was to obtain an election.' Accordingly, we find, contrary to the Trial Examiner, that none of the cards in issue were invalid,9 and that the Union represented a majority of 15 employees in the appropriate unit of 27 employees"' on November 10, 1965, when it requested the Respondent to bargain. In view of Respondent's unfair labor practices and its interference with the election, as found above, we find that the Respondent's refusal to recognize and bargain with the Union on and after November 10, 1965, was motivated not by a good-faith doubt of the Union's majority" but by a desire to gain time in which to destroy the Union's majority status, and that the Respondent thereby violated Section 8(a)(5) and (1) of the Act.12 4. The complaint alleged, and the Respondent admitted at the hearing, that since May 1, 1966, the Respondent has unilaterally granted wage increases to its employees without bargaining with the Union. In view of our finding, above, that the Union was the majority representative of such employees, we also find, contrary to the Trial Examiner, that Respondent violated Section 8(a)(5) of the Act by unilaterally granting such wage increases. THE REMEDY We have found that the Respondent unlawfully refused to bargain with the Union. In order to remedy this unfair labor practice, we shall order the 6 In adopting the Trial Examiner's conclusions in this regard, we do not rely on that part of his rationale to the effect that "the Respondent could have paid the extra bonus in 1964, without imperiling the financial stability of the Company " The Trial Examiner's failure to find this conduct violative of Section 8(a)(1) is adopted pro forma in the absence of exceptions thereto " See Bryant Chucking Grinder Company, 160 NLRB 1526, 1564, ff; The Shelby Manufacturing Company, 155 NLRB 464. " We find no merit in the Respondent's contention that Stinnett's card should not be counted because he attempted to get it back after Vice President Tobin's speech of November 8, which we have found violative of Section 8(a)(1). " We find without merit the General Counsel's contention that Leadman Joe Lawson, who carries out routine orders of an admitted supervisor, is a supervisor, and we have included him in the unit. 11 We find without merit the Respondent 's contention that at the time of the Union 's demand on November 10, 1965, it questioned the appropriateness of the requested unit of all linemen, repairmen , cable splicers, installers , servicemen, and helpers because it did not specifically include certain maintenance , supply, or right -of-way clearance men However, the men involved in these jobs were, in fact , included among the 27 employees in the unit which the Union claimed to be appropriate and the unit subsequently agreed to by the parties We therefore conclude that the unit agreed to by the parties for the consent election, and found appropriate by the Trial Examiner, did not represent a substantial variation from that originally sought by the Union, and, in all the circumstances of this case , such variance provides no justification for Respondent's refusal to bargain . Dixie Color Printing Corp , 156 NLRB 1431. 12 Joy Silk Mills, Inc, 85 NLRB 1263 , enfd 185 F 2d 732 (C A D C ), cert denied 341 U S 914, Bernel Foam Products Co , Inc , 146 NLRB 1277, Irving Air Chute Company, Inc , Marathon Division, 149 NLRB 627, enfd. 350 F.2d 176 (C A. 2) BRANDENBURG TELEPHONE COMPANY 827 Respondent to cease and desist from such unlawful conduct and affirmatively to bargain with the Union. Nothing herein contained shall be construed as requiring the Respondent to revoke any wage increases heretofore granted. In view of our bargaining order, we shall not adopt the Trial Examiner's recommendation that the Board direct the holding of another election. Nor do we adopt, as it is no longer necessary, the Trial Examiner's recommendation that the Respondent permit the Union access to its premises for employee meetings and its bulletin boards for organizational purposes.13 As no currect question concerning representation exists, we shall dismiss the petition in Case 9-RC-6601 and vacate all proceedings held in connection therewith.14 ADDITIONAL CONCLUSION OF LAW Add the following as paragraph 7 of the Trial Examiner's Conclusions of Law: "7. By refusing on November 10, 1965, and thereafter, to bargain collectively with Electrical Workers Local Union No. 369, International Brotherhood of Electrical Workers, AFL-CIO, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Brandenburg Telephone Company, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Interrogating employees concerning their union membership , activities , or sympathies, in a manner constituting interference , restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (b) Granting or promising its employees any benefits for the purpose of influencing them in their exercise of rights guaranteed them in the Act. (c) Withholding any benefits from employees for the purpose of influencing them in the exercise of the rights guaranteed them in the Act. (d) Unilaterally changing working conditions of its employees. (e) Soliciting employees to abandon support of the Union. (f) Refusing to recognize and bargain collectively with Electrical Workers Local Union No. 369, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The appropriate unit is: All employees employed by the Brandenburg Telephone Company in or in connection with the construction, installation, operation, and maintenance of its telephone system in Meade, Hardin, and Breckenridge Counties, Kentucky, except office clerical employees, and all guards and supervisors as defined in the National Labor Relations Act, as amended. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights of self-organization, to form labor organizations, to join or assist Electrical Workers Local Union No. 369, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Pay to each employee in the unit who was on the Respondent's payroll at the time the 1965 extra Christmas bonus was paid an amount equal to the extra bonus which he would have received had the Respondent not withheld such Christmas bonus from him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Upon request bargain collectively with the above-named Union as the exclusive representative of the employees in the unit set forth above with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody the same in a signed agreement. (d) Post at its Brandenburg, Kentucky, and its Vine Grove, Kentucky, establishments, copies of the attached notice marked "Appendix."15 Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by 13 Midwestern Manufacturing Company, Inc, and Midwestern Engine and Equipment Co , Inc , 158 NLRB 1698 14 S N C Manufacturing Co, Inc, 147 NLRB 809 , enfd 352 F 2d 361 (C A D C ), cert denied 382 U S 902. 15 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the petition in Case 9-RC-6601 be, and it hereby is, dismissed, and all proceedings held in connection therewith be, and they hereby are, vacated. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their union membership, activities, or sympathies, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT grant or promise our employees any benefits for the purpose of influencing them in the exercise of the rights guaranteed them in the Act. WE WILL NOT withhold any benefits from our employees for the purpose of influencing them in the exercise of the rights guaranteed them in the Act. WE WILL NOT unilaterally change working conditions of our employees. WE WILL NOT solicit employees to abandon support of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist Electrical Workers Local Union No. 369, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. WE WILL pay to each employee who was on our payroll at the time the 1965 extra Christmas bonus was paid an amount equal to the extra bonus which he would have received had we not withheld such Christmas bonus from him. WE WILL bargain collectively, upon request, with Electrical Workers Local Union No. 369, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining representative of all our employees in the appropriate unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is: All employees employed by the Brandenburg Telephone Company in or in connection with the construction installation, operation, and maintenance of its telephone system in Meade, Hardin, and Breckenridge, Counties, Kentucky, except office clerical employees, and all guards and supervisors as defined in the National Labor Relations Act, as amended. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. BRANDENBURG TELEPHONE COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: On November 16, 1965, the Electrical Workers Local Union No. 369, International Brotherhood of Electrical Workers, AFL-CIO, herein referred to as the Union or Petitioner, filed a petition for a representation election among certain of the employees of the Brandenburg Telephone Company, herein referred to as the Employer or the Respondent, whose principal office is located at Brandenburg, Kentucky. On January 14, 1966, pursuant to BRANDENBURG TELEPHONE COMPANY 829 a stipulation for certification upon consent election executed by the parties on December 10, 1965, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 9. Upon the conclusion of the election a tally of ballots was furnished the parties in accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended. The tally of ballots showed that there were approximately 28 eligible voters and that 27 ballots were cast of which 9 were for the Petitioner and 18 were against the Petitioner. On January 18, 1966, the Petitioner filed timely objections to conduct affecting the results of the election. On January 18, 1966, the Union filed a charge upon which the Regional Director for Region 9, on March 23, 1966, issued a complaint and notice of hearing, naming Brandenburg Telephone Company as the Respondent. The complaint alleged that the Respondent had engaged in and was engaging in unfair labor practices as defined in Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act. The complaint incorporated substantially the same allegations as contained in the Petitioner's objections to election. The Regional Director investigated the objections to election and thereafter on March 31, 1966, issued and served on all parties his report on election, objections to election, and recommendations to the Board. In his report the Regional Director concluded that the Petitioner's objections 1, 2, and 4 raised substantial and material issues of fact affecting the results of the election and recommended that a hearing be held before a Hearing Officer to resolve the issues raised by objections 1, 2, and 4. In substance, objection 1 alleged that the Employer unlawfully interrogated and coerced its employees and threatened them with the loss of benefits and jobs should the Petitioner succeed in the election; objection 2 alleged that the Employer, in a series of letters to its employees dated November 23 and December 8, 14, and 27, 1965, and January 5, 8, and 12, 1966, unlawfully interfered with the election; and objection 4 alleged that the Employer gave all nonunit employees an unprecedented 2 weeks' salary in addition to the usual Christmas bonus and then told all unit employees that they too would have received the additional salary if the Petitioner had not petitioned for an election. On April 11, 1966, the Employer filed timely exceptions with the Board to the Regional Director's report with respect to objections 1, 2, and 4. Upon consideration the Board ordered that a hearing be held to resolve the issues raised by the Petitioner's objections 1, 2, and 4 and that such hearing be consolidated with any hearing held on the complaint issued in Case 9-CA-3812. It was further ordered that the Trial Examiner, if designated for the purpose of conducting such hearing, should prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said issues. Thereafter, the Regional Director entered an order consolidating Cases 9-RC-6601 and 9-CA-3812 and set the same for hearing. The consolidated cases came on to be heard before me on May 18,19, and 20,1966, and July 25,26, 27, 28, and 29, 1966, at Louisville, Kentucky. At the hearing, each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions of law, and to file briefs. All briefs have been reviewed and considered by me. Upon the whole record and from my observation of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent , Brandenburg Telephone Company, at all times material herein , has been a Kentucky corporation engaged in the operation of a telephone communication system from its principal place of business located at Brandenburg , Kentucky. During the past 12 months, which is a representative period , the Respondent had a gross volume of business in excess of $100,000 of which an amount in excess of $5,000 was received from toll call services it furnished to points outside the State of Kentucky . During the same period it purchased goods and materials valued in excess of $5,000 which originated outside the State of Kentucky. The Respondent admits and I find that the Respondent is now and has been at all times material herein engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Electrical Workers Local Union No. 369, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Se, tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION A. The Company operates a telephone system with eight exchanges in three rural Kentucky counties. Its main office and exchange is at Brandenburg, Kentucky, which is about 40 miles from Louisville, Kentucky. Another business office and exchange is maintained at Vine Grove, Kentucky, about 20 miles from Brandenburg. The other exchanges have only equipment in them, and no employees are stationed there or work out of them. The executive vice president and general manager of the Company who is in overall day-to-day supervision of the Company's operations is Joseph Dalton Tobin. Henrietta S. Brown is the Company's office manager and bookkeeper who supervises the Company's approximately eight office clerical employees at Brandenburg and the three at Vine Grove. All office clerical employees are female. Howard Wardrip supervises all of the male employees who work out of Brandenburg. Marion Henderson supervises all male employees working out of the Vine Grove office, who at the time of the events at issue herein consisted solely of Max Junior Ewart, George T. Lewis, Larry Martin, and Robert C. Atelier. Shortly prior to October 30, 1965, Louis Keith Reesor, assistant business manager of the Union, was informed by a union member working at the Olin Mathieson Chemical Corporation that a few employees of the Respondent Employer had told him that they wanted to be represented by the Union. Thereafter, on the evening of November 5, 1965, an organizational meeting was held at the Ritz Restaurant located at Muldrauh, Kentucky. Ten of the Respondent's employees appeared at the meeting and 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed union designation cards.' Thereafter five additional cards were signed, three on November 5 and two on November 6, 1965.2 Tobin3 first learned of the Union's organizing efforts on October 20, 1965, when employee George Hesler told Tobin that employees Jerry Miles and Arnold Aebersold had asked him if he would join the Union and that he had refused because he did not think they needed a union. As Tobin put it, he just "listened" for the next few days; i.e., he stayed around the Company's premises to see if he could hear anything more about what was going on and to be available if anyone wanted to talk with him about it. On October 27, 1965, Supervisor Howard Wardrip told Tobin that employee Joe Lawson had told him that some of the men wanted him to join a union; that he would not do it; and that Wardrip should tell Tobin about it. Upon receiving this information, Tobin informed his supervisors about the union organizational activity occurring and told them just to "listen" to see what they could learn, but not to say anything to anybody about it. He also commenced "looking for a lawyer" because, as he put it, he "didn't know anything about the Union" and he "needed advice." On November 3, 1965, a friend of his made an appointment for Tobin with Respondent's counsel, James U. Smith. Tobin conferred with Smith and Attorney Louis E. Woolery on the morning of November 6, at 10 o'clock. Smith was retained as Respondent's counsel. At this time, Tobin did not know about the meeting of the Respondent's employees at the Ritz Restaurant on November 5. According to Tobin, Smith advised him that the Respondent could not spy on its employees, threaten to take benefits away from them, or promise them benefits. Smith furnished a printed document with "do's" and "don'ts" for supervisors which Tobin gave to his supervisors. According to Tobin, he told the supervisors not to question the employees about the Union and not to spy on them or threaten them in any way or promise "anything unusual or anything extra." Tobin also said that if the employees asked them a question they had "a right to answer it to the best of [their] ability." Tobin left Smith's office with a determination to do all things which were legally permissible to bar the Union from the Respondent's premises. On the afternoon of November 6, 1965, employee Harold Dunn visited Tobin's dry goods and grocery store at Irvington, Kentucky,4 where Tobin stayed "right smart on Saturday and every Saturday night." Dunn related to Tobin that Union Representative Reesor, and employees Miles and Aebersold, who claimed all the old men had signed with the Union, tried to get him to join the Union. Dunn volunteered, ". . . I told them I didn't want to have anything to do with it." "Along about dark" on November 7, 1965, Tobin was taken with "the itch" to address the Respondent's employees. Collaborating with his son, J. D. Tobin, Jr., Tobin prepared a speech. On Monday morning, November 8, 1965, Tobin journeyed to Louisville, Kentucky, where he presented the speech to Attorney Woolery for advice. The speech was worked over,5 and delivered to all the Respondent's employees on November 8, 1965, about 4 p.m. in Tobin's office,6 at the Respondent's Brandenburg exchange. The typed transcript from which Tobin read is an admitted exhibit. There is no competent evidence to support a finding that Tobin in delivering the speech deviated from the text. Tobin candidly testified that he did not want a union and was bent on keeping it out of the Respondent's establishment.' B. Tobin's speech of November 8 set the tone for the Employer's campaign against the Union. In his speech, Tobin first reminded the employees that he desired to talk to them "about a matter which is of vital concern to you and the Company." He pointed out that "some of our loyal employees have told me that an outside union organizer has been calling on some of you at your homes, trying to get you to sign an authorization card."8 Tobin said that he hoped the employees had not signed a card. He stated that the reason he wanted to talk to the employees was because "this outside union troublemaker has already called on some of you" and it could be assumed that the outside union troublemaker would continue "his efforts to get [employees] to sign union authorization cards." Tobin reminded the employees how serious the situation could become and how it could affect the employees, their families, and the Company. Tobin frankly stated, "We do not want a union at this Company." He said that a union could "do nothing for you that you can not do better for yourself or the Company will do for you voluntarily and without you having to strike and walk a picket line."' He pointed out that it was his "honest opinion that a union will be bad for both the Company and the employees." He I The card read "I of my own free will, hereby authorize and designate the International Brotherhood of Electrical Workers, an AFL-CIO affiliate, to represent me in collective bargaining " No reference was made on the card to an election 2 The employees who signed cards at the November 5 meeting were Arnold D Aebersold, Henry Duncan, Louis Darnall, Max J Ewart, Lee Parr King, G T Lewis, Jerry M Miles, Larry J Martin, Jackie W Simmons, and Russel Vandiver In addition to these employees Wavie Tucker, Wade Lamar Benham, and Earl B Stinette signed cards on November 5, 1965, and Ray D Bullock and Larry Singleton signed cards on November 6, 1965 3 Tobin was a prominent businessman in the Brandenburg community Besides his connections with the telephone company he was, among other things, engaged in banking, grocery, dry goods, and insurance businesses Tobin also had a store at Brandenburg, Kentucky The fact that Tobin sought or relied upon the advice of counsel is no excuse for the Respondent's provable misconduct N L.R B v Clearfield Cheese Co , Inc , 322 F 2d 89, 93 (C A 6) 8 Tobin's choice of his office as the place for delivering his speech suggests that Tobin was using the locus of final authority as an added incentive to persuade the employees to reject the Union Such choice was calculated to interfere with the employees' free choice 7 Tobin testified, "I didn't want a union and I was relying on my attorney to help direct me to keep us from having a union in every legal way that it was our right to do, not anything wrong at all but legal way we had a right to do " He averred that he was not going to recognize the Union until he was "shown legally that [he] was supposed to " He expressed his purpose as "I meant to do everything that was legally right to do, not to have a union and said that he "did that " 8 The implication is strong here that Tobin was aware of which employees were union sponsors " In this remark, Tobin stressed the lack of need for the Union and reminded the employees that employee benefits would continue to flow from the source, the Employer's voluntary beneficence, whether a union was chosen or not, and that the employees could expect "nothing" more from the Union "An employer interferes with the right of self-organization when he emphasizes to his employees that there is no necessity for a collective bargaining agent " N L R B v Bailey Company, 180 F 2d 278, 279 (C A 6) BRANDENBURG TELEPHONE COMPANY 831 emphasized that the Union wanted the employees' authorization cards because "the Union wants your money," and noted, "The Union organizers aren't really interested in you but they have to act like they are in order to try and get you to sign a card." Tobin observed that he couldn't see what the employees hoped to gain "by paying" the Union, "because we have always tried to do our best for you, including giving you benefits and frequent wage increases and other benefits such as paid holidays, paid vacations , sick leave, hospitalization insurance , and retirement benefit plan."10 Tobin reminded the employees that the important thing to remember was that the Employer "has done all these things voluntarily" without the employees "having to pay one cent to outsiders," nor did the employees have "to strike or walk a picket line for one day, one hour or one minute to try to get any of these benefits." In this context, Tobin explained that "voting a union in doesn't guarantee any improvement in benefits because under the law the Company does not have to agree to any demand or proposal that a union might make." He admonished the employees that "on the contrary, when a union gets in all wages and other benefits are frozen under the law until the Company and the Union come to an agreement or find that they can not reach an agreement, which might not be for many months." He clinched the thought by asserting that if the Union prevailed the Respondent "would have just as much right to demand that employee benefits be reduced as the Union would have to demand that they be increased." Tobin advised employees that if the Union became the bargaining representative, the employees would no longer "have the right to speak for [themselves] in matters connected with [their] employment and the Company could not deal with [them] on these matters, because under the law the Union has sole right to do [their] talking for [them] and if [they] don't like the way they represent [them], there is not a thing [they] can do about it individually." To "show" the employees what a union could do for them, Tobin referred to a strike at South Central Telephone Cooperative, Glasgow, Kentucky, where replacements were hired for strikers "which it had the legal right to do." He said that the yet unsettled strike was "marked by a lot of violence." In this connection, he pointed out that "strikers not only do not draw any wages during the strike, but under the law they also can not draw any unemployment compensation benefits in Kentucky and they can be permanently replaced by the employer with other employees and consequently lose their jobs." Tobin summarized, "Thus, you can see that a union can cause employees a lot of trouble if the employees select the Union to represent them." Tobin said that he "sincerely hoped" that all those employees who had not signed a union authorization card would not do so. He advised the employees, "If any of you have signed a union card you have a perfect right to call the union organizer and tell him you want it back, so that you can tear it up and throw it in the wastebasket, which is dust exactly where it belongs." He declared that he sincerely believed that "a union can spell `trouble' in great big capital letters"; he advised employees that the "best way to avoid trouble is to stay away from the troublemakers, namely, the outside union organizers." He pointed out that the union organizers "may even lie to you or try to talk you into signing a card by telling you the card simply means that the Union wants to have an election, when in truth and in fact you could make yourself liable to pay dues, fines and assessments by signing a card." Tobin stressed the protective arm of the Respondent by stating, "If any of you are threatened in any way by these union organizers, I wish you would let me know and we will take appropriate steps under the law to protect your rights." He advised, "If you don't want to talk to these union organizers, you have a perfect right to tell them so, and to close the door in their face." Tobin's final word was, "In conclusion, let me say that I hope you will not fall for the tricky promises and phony double talk which the union organizers will undoubtedly give you. I hope you will not sign a union authorization card. And I hope that if you have any questions about this matter, you will give me the opportunity to discuss them with you. As you know, the door of my office is always open to you." In analyzing Tobin's speech, I am not unmindful of the Board's observation: Over the years one of the greatest obstacles to the achievement of the central purpose of the Act, the encouragement of the practice and procedure of collective bargaining, has been the use of some employers of economic pressure to thwart the exercise of free choice in the selection of a bargaining agent. Many of the other rights guaranteed to employees by the Act are meaningless if an employer .may use such pressure to influence the employees. Therefore, the Board, . . . must closely guard the integrity of its elections so that employees may exercise the freedom of choice contemplated by the Act and thereby have a full opportunity to enjoy its other benefits. While an employer may address himself to the issue as to whether the union in question, if selected as the bargaining agent, will be able to represent employees effectively in the light of the existing economic realities, he may not, in this connection, resort to threats of reprisals or force or promises of benefits or cause a contamination of the election either directly or indirectly. Tobin's speech exceeded these limitations. Pervading his remarks was a conscious and studied effort to cross beyond these barriers by employing thought provocations without the use of actionable words, although sometimes actionable words were used. To achieve this end, words and phrases sometimes were skillfully chosen to obscure their definitive meaning or to create a double entendre, yet the words and phrases, in the context in which they were uttered,' 1 were sufficiently clear to the employee- " Here again is a strong suggestion that the employees do not need a union which springs from the Employer's assurance that it tries to do its "best" for its employees ii "Words innocuous in themselves can take on a sinister meaning in the context in which they are uttered " Local 901, International Brotherhood of Teamsters, etc (El Impartial, Inc) v. Compton, 291 F.2d 793, 797 (C A 1) 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD listeners' minds to instill fear of economic jeopardy.12 Such an effect may, nevertheless, constitute unlawful interference for an employer's sophisticated evasion of the law may be, nonetheless, unlawful.13 The Supreme Court teaches that "interference must be determined by careful scrutiny of all factors, often subtle, which restrain the employees' choice...." International Association of Machintsts (Serrick Corp.) v. N.L.R.B., 311 U.S. 72, 80. As was stated in N.L.R.B. v. W. C. Nabors Co., 196 F.2d 272, 276 (C.A. 5): "When statements such as these are made by one who is part of the Company management, and who has the power to change prophecies14 into realities, such statements, whether couched in language of probability or certainty, tend to impede and coerce employees in their right of self-organization, and therefore constitute unfair labor practices." Tobin left no doubt that his thoughts on the subject would be translated into actions. The well excogitated remarks of Tobin tended to cause union disaffection and to induce employees to return their union designation cards so that the union majority status could have been dissipated even before the Union made its bargaining demand. By his minatory message Tobin indoctrinated the employees with the psychology of fear, fear not only that their selection of the Union would be a waste of money and a futile act15 but also that it would imperil their very livelihood. It is unmistakable that the thrust of Tobin's speech was not only to threaten the employees with hazards if they flouted his well-stressed wishes and chose the Union as their bargaining agent but also to persuade the employees that the choice of the Union would be a futile act in that the Employer would voluntarily bestow current and future benefits without a union, but with a union any benefits gained or retained would only result from economic struggle and strife. Tobin gained the entire effect by utilizing every emotional advantage. He chose his office, the locus of highest authority, for the setting; he gathered all employees together in a captive audience; he included the employees' supervisors; he compensated the employees for the time spent listening to his remarks; he packed his speech, with the aid of his lawyer, with emotionally loaded words and phrases such as: "a matter which is of vital concern to you," "our loyal employees have told me," "out side union troublemaker," "how it can effect you, your family," "a union can do nothing for you," "We do not want a union," "my honest opinion that union will be bad," "union wants your money," "I can't see what you would hope to gain," "Company has done all this voluntarily without you having to pay 1 cent to outsiders , nor have any of you had to strike ... 1 hour or 1 minute ," "Company does not have to agree," "all wages and other benefits are frozen under the law," "for many months ," "demand that employee benefits be reduced ," "no longer have right to speak for yourself," "Company could not deal with you," "union has sole right to do your talking," "strike has been marked by lot of violence," "strikers ... lose their jobs," "union can cause employees a lot of trouble," "sincerely hope you will not sign [authorization card] ," "throw it [union authorization card ] in wastebasket , which is exactly where it belongs ," "I sincerely believe that a union can spell `trouble' in big capital letters," "stay away from troublemakers ," "union organizers may even lie ," "we will take appropriate steps under the law to protect you," "close the door in their face," and "the door of my office is always open to you." Tobin composed a mosaic-like image of the Employer with these words and phrases and others, which like the chips of a mosaic, were not always in themselves meaningful but when joined together revealed a deliberate design. The image depicted was that of an employer bristling with reprisal if his employees chose the union and summering with beneficence if his employees maintained the status quo. I am well aware that an employer does not commit an unfair labor practice if he expresses or disseminates "views, argument or opinion " whether in written , graphic, or visual form , if such expressions or disseminations contain "no threat of reprisal or force or promise of benefit." (See Section 8(c) of the Act .) 1e An employer may engage in noncoercive antiunion solicitation, a right which "is protected by the so-called `employer free speech' provision of Section 8(c) of the Act." N.L.R.B. v. United Steelworkers of America, CIO (Nutone Inc., Intervenor), 357 U.S. 357, 362. However , the legislative history of Section 8(c) does not suggest that by the enactment of Section 8(c) it was intended that the realities of the industrial world be ignored," or that there be overlooked the Isalient;fact that there is a distinct difference between the reaction of an employee to the statement of his employer, upon whom he depends for his daily bread, and that of the armchair strategist who sometimes applies 'Z For example there are many ways to express the thought that bargaining must start at "scratch" if a union prevails The Respondent chose these words, "If this union gets in here, we would have just as much right to demand that employee benefits be reduced as the Union would have to demand that they be increased." The implication is strong in this language that with the choice of the Union, coupled with the antagonistic attitude that may be expected from the self-confessed antiunion employer, the employees would either emerge with less than what they had or they would be forced to struggle to keep what they presently enjoyed. Cf. C. R Hills Division of Shoe Corporation, 155 NLRB 1163, 1182. 11 Statements which can be reasonably construed by the employees to be a threat to prevent unionization of employees "even though the statements may not be directly coercive" constitute violations of Section 8(a)(1) of the Act. N.L R B v. Electric Steam Radiator Corp., 321 F 2d 733, 736 (C A 6) '" Expressions of opinion are not protected if they are "couched in such phrases, or attended by such circumstances that they tend to exercise undue influence ." N L.R B. v Ford Brothers, 170 F 2d 735, 738 (C A 6), N L R B v. Kingsford Motor Car Co , 313 F 2d 826,832 (C A. 6) 15 " the desire of employees to unionize is directly proportional to the advantages thought to be obtained from such action " Radio Officers' Union, etc (A H Bull Steamship Company) v NLRB , 347 U S 17,46 1e " it may be said that the language of Section 8(c) of the National Labor Relations Act, as amended by the Labor Management Act of 1947, 29 U S C A § 141 et seq, 61 Stat 136, is no more than the restatement of the principle embodied in the First Amendment," N.L R B v Bailey Co , 180 F.2d 278, 280 (C A 6), or as expressed by the Supreme Court, "The remedial function of § 8(c) is to protect noncoercive speech by employer and tabor organization alike in furtherance of a lawful object It serves that purpose adequately without extending its protection to speech . in furtherance of unfair labor practices " International Brotherhood of Electrical Workers (Samuel Langer) v N.L.R B., 341 U S 694, 704. IT I observed that while the Respondent's employees were testifying they appeared little equipped to grasp the hypothetical interpolations often applied to the written and spoken word in the field of labor- management relations BRANDENBURG TELEPHONE COMPANY 833 connotations to the employer's language .[" As was said by Judge Frank, "Tough language barriers often exist between the man in the library or the judge and the man on the street .. " 19 Larson v. Jo Ann Cab Corp., 209 F.2d 929, 933 (C.A. 2). In Foreman & Clark, Inc. v. N.L.R.B., 215 F.2d 396,398 (C.A. 9), the court said: "The flattery of hope and the impressions of fear ... can intrude themselves in labor relations...." Flattery of hope and impressions of fear of a coercive nature, sometimes subtle, are often used by employers as inducements for union disaffection. At the very threshold of the Repondent's antiunion campaign well-advised Tobin adopted these devices and introduced the recurring theme, "I sing the song of whose bread I eat." A reasonable interpretation of Tobin's remarks as a whole, in the light of the realities of the industrial world, confirms a finding that Tobin's speech exceeded the permissible limits set by Section 8(c) and encroached upon employees' rights guaranteed by Section 7 of the Act, for which reason I find that the Respondent violated Section 8(a)(1) of the Act. In Tobin's remarks the "fist inside the velvet glove" is seen . Employees were not likely to miss "that the source of benefits now conferred is also the source from which future benefits must flow and must dry up if not obligated," (cf. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409), or as also put by Tobin such benefits might be "frozen" for "many months" by unproductive collective bargaining reflecting the Respondent's antagonistic attitude toward the Union. Indeed Tobin made plain that if the Union became the bargaining agent, the Respondent's stubborn opposition to the Union would cause a modification of its liberal labor policy, which manifested itself in benefits presently bestowed to the point where it would demand the withdrawal of those benefits if the Union were so presumptuous as to demand additional benefits. The clear implication of Tobin's remarks is that the Union would be forced to start from "scratch." To so represent has been held to be a violation of Section 8(a)(1) of the Act. Famaco, Inc., 158 NLRB 111. Implicit in Tobin's antipathy toward the Union was the strong suggestion that the Employer would deal more harshly with the Union than with the individual employees. Thus, Tobin clearly implied that a choice of the Union sounded the advent of strikes and violence and that a maintenance of status quo assured a retention of present benefits and a bestowal of future benefits. By thus introducing the thought of strike and the consequences thereof, coupled with the idea that strikers lose their jobs (Tobin did not distinguish between economic and unfair labor practice strikers) 20 at a time when there was no suggestion of strike, Tobin revealed the Respondent's intent to threaten employees with loss of jobs rather than to abstractly instruct them in the consequences of strike. 21 Cf. Orkin Exterminating Company of Florida, Inc., 152 NLRB 83, 93; Hoffman-Taff, Inc., 135 NLRB 1319, 1321; The Little Rock Downtowner, Inc., 143 NLRB 887, 890. Advising employees that "the Union can do nothing for you that ... the Company will not do for you voluntarily" was an act "reasonably calculated to create an atmosphere of futility and to discourage support for the Union among employees" and was unlawful. Orkin Exterminating Company, supra, 93. The creation of the belief that there was no necessity for its employees to support the Union was violative of Section 8(a)(1) of the Act. Herman Equipment Manufacturing Company, 156 NLRB 716. See also N.L.R.B. v. Bailey Co., supra, 279. Tobin's implication that the Union could do no good for the employees and that a choice of the Union as bargaining agent would lead to trouble interfered with employees' Section 7 rights. See Cleveland Woolens, 140 NLRB 87, 94; Owens-Corning Fiberglass Corporation, 146 NLRB 1492, 1503; Sagamore Shirt Company d/b/a Spruce Pine Manufacturing Company, 153 NLRB 309. Tobin's characterization that the Union would "be bad" for the employees was unlawful coercion. See General Steel Products, Inc., et al., 157 NLRB 636; Dixie Cup, 157 NLRB 167. Tobin's suggestion that the employees retrieve their signed union designation cards and relegate them to the wastebasket in the context of his speech is not unlike, in coercive effect, unlawful solicitation of union withdrawals which has been condemned. Cf. Southwestern of Dallas Optical Company, 153 NLRB 33; N.L.R.B. v. Valley Broadcasting Co., 189 F.2d 582, 287 (C.A. 6); Phil-Modes, Inc., 159 NLRB 944. Tobin's suggestion that a union victory was tantamount to strikes, violence, and loss of jobs offends Section 8(a)(1) of the Act. Cf. Utica-Herbrand Tool Division of Kelsey- Hayes Company, 145 NLRB 1717, 1718; General Industries Electronics Company, 146 NLRB 1139, 1140; Brunswick Corporation, 147 NLRB 428, 433, 434; Pepperell Manufacturing Company, 159 NLRB 291. The Respondent's statement that if a collective- bargaining agent were chosen, the employees would no longer have the right to speak for themselves in matters connected with their employment and that the Company could not deal with them on these matters because, under the law, the Union had the sole right to do their talking for them, and, if they did not like the way the Union represented them, there was not a thing they could "do 18 The disaffection of the Respondent's employees as disclosed by the election and employee disaffection, in some cases confessed to Tobin, are proof that the employees grasped the gist of Tobm's remarks 1' "Words are not pebbles in alien Juxtaposition; they have only a communal existence , and not only does the meaning of each interpenetrate the other, but all in the aggregate take their purport from the setting in which they are used, of which the relation between the speaker and the hearer is perhaps the most important part What to an outsider will be no more than the vigorous presentation of a conviction to an employee may be the manifestation of a determination which is not safe to thwart." Learned Hand, Jr , N L R B v.Federbush Company, 121 F 2d954, 957 (C A 2) 211 It was said in Hoffman-Taff, Inc , 135 NLRB 1319,1321 " . Bass did not limit his strike references to an economic strike Further, the record contained no suggestion that at this time a possible strike, economic or otherwise, was being discussed among the employees or rumored in the plant , and it appears beyond a doubt that Bass . . was intentionally threatening the employees with the loss of their jobs rather than merely abstractly instructing them in consequences of economic strikes." 21 In Wtnn-Dtxte Stores , Inc., 153 N LRB 273, the Trial Examiner said : "Respondent's continual reference to permanent replacement of employees during a strike . uttered in the context of its other statements during the interviews , and at a time when it had not even recognized the Union and no strike threat existed so far as this record is concerned , was coercive " 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about it individually" amounted to a threat that the employees would lose substantial benefits.22 As noted above, the Supreme Court teaches that the existence of interference must be "determined by careful scrutiny of all factors, often subtle. " (Emphasis supplied.)23 Frequently, by reason of the subtleties employed, it is difficult to categorize the indicia of unlawful antiunion propaganda. However, there seems to emerge from the cases24 on this subject a proposition that may be expressed thusly: if the antiunion propaganda arguably falls within the proscription of Section 7 of the Act, it is unlawful and exceeds the permissive limits of Section 8(c) of the Act. Hence, if the antiunion propaganda "arguably" interfereS25 with, restrains, or coerces employees in the exercise of rights guaranteed by Section 7 of the Act (that is to say that an employee's response26 to such propaganda is less than the untrammeled expression of a freedom of choice for a bargaining representative), the propaganda encroaches upon the rights guaranteed employees under Section 7 of the Act and is in violation of Section 8(a)(1) of the Act.27 There seems little doubt that Tobin's remarks "arguably" interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. Tobin's peroration augured of futility if the Union were chosen and the withdrawal of the Respondent's past generosity. The Respondent promised a continuation of the rewards to be derived from individual bargaining vis-a- vis the evils attendant upon its bargaining with the Union. By its expressed inclination and hostile attitude the Employer threatened that the choice of the Union meant trouble "in great big capital letters." In the specifics noted above, as well as in Tobin's remarks taken as a whole, Tobin interfered with employees' rights as guaranteed by Section 7 of the Act. Tobin's remarks were delivered with the intent and purpose and had the effect of interfering and could be reasonably interpreted by the employees as an attempt to interfere with their rights to self-organization. C. After November 8, 1965, the Union received no more authorization cards. On November 9, 1965, employee Stinnett appeared at Tobin's Irvington, Kentucky, store and told Tobin that he would like to have his union authorization card back. Tobin advised him, "I don't know whether they will give it to you or not, but you can ask for it back if you want it back." D. On November 10, 1965, the Respondent received a letter from the Union's counsel informing the Employer that the Union presently represented "a majority" of the Employer's employees in a unit of "All linemen, repairmen, cable splicers, installers, servicemen, and helpers." In the letter the Union demanded that the Employer recognize the Union as "bargaining representative." The Respondent, by its counsel, responded to the letter on November 11, 1965.26 The Respondent wrote that it entertained a "good-faith doubt" that the Union represented a majority of the employees described in the Union's letter and that the Respondent was "not by any means certain that the unit described ... [was] an appropriate unit for the purposes of collective bargaining." The Respondent further pointed out that "no useful purpose would be served" by submitting the cards to be checked by a mutual third party under the conditions stated in the Union's letter "since a mutual third party could not know the circumstances under which the alleged authorization cards were procured, the validity of said cards could not be tested by the examination and cross- examination of witnesses under oath, and thus the mutual third party would not and could not know whether such cards were lawfully procured and valid." It was further stated that the Respondent could not lawfully recognize the Union "unless and until that organization had been duly certified by the National Labor Relations Board as the result of a Board-conducted secret ballot election, as the collective bargaining representative in an appropriate unit of the Company employees." The Union failed to respond to the letter. On November 16, 1965, the Union filed a petition for an election. On December 7, 1965, the parties agreed to a stipulation for certification upon consent election which was approved by the Regional Director on December 10, 1965. The appropriate bargaining unit described in the stipulation was as follows: All employees employed by the Brandenburg Telephone Company in or in connection with the construction, installation, operation and maintenance of its telephone system in Meade, Hardin, and Breckenridge Counties, Kentucky, except office clerical employees, and all guards and supervisors as 22 In Graber Manufacturing Company, Inc, 158 NLRB 244, 246-247, it was stated. Section 9(a) of the Act , which makes the representative chosen by a majority the exclusive bargaining representative of all, expressly provides that "any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative , as long as the adjustment is not inconsistent with the terms of a collective -bargaining contract or agreement then in effect Provided further, That the bargaining representative has been given opportunity to be present at such adjustment " The employees, accordingly, have a right to present their own grievances to their employer and need not permit the union to talk for them to their exclusion The employees' statutorily protected right to present their own grievances and thus speak for themselves is undoubtedly a right cherished by many employees and Respondent's statement that if the Union became their representative it would talk to the Employer about their own job affairs to their exclusion amounted to a threat that they would lose a substantial benefit 23 International Association of Machinists v N L R B , supra 29 I have examined all the cases cited by the Respondent is "`Interference is no less interference because it is accomplished through allurements rather than coercion "' N L R B v Bailey Co., supra, 279 26 It is the employee's "arguable" response to an employer's antiunion propaganda which is controlling. "Since it is the policy of the Act to protect employees in a free choice of bargaining representative, the law looks to what the listener-employees reasonably could have inferred from what was said and done by one authorized to engage in the anti-union preelection campaign " Hendrix Manufacturing Company v N.L R B, 321 F 2d 100, 104 (C.A 5) 27 This seems to be the sense of the court's remark, "Statements . in the nature of a threat to prevent unionization of employees constitute a violation of Section 8(a)(1) of the Act. This is so even though the statements may not be directly coercive, if they can be reasonably so construed by the employee " N L.R B v Electric Steam Radiator Corp , supra, 736 28 Tobin testified that the reply letter was read to him over the telephone BRANDENBURG TELEPHONE COMPANY 835 defined in the National Labor Relations Act, as amended. The election was conducted on January 14, 1966. E. Objection 129 and the unfair labor practices related thereto: The following testimony was adduced in reference to objection 1, and certain related allegations in the complaint. Employee Ray Dean Bullock testified that sometime between November 15 and 26, 1965, Tobin informed him that the Union was engaged in organizational activities. Bullock "wondered who started it."36 Tobin replied that employees Miles and Aebersold had started the Union and that if Bullock had signed a card "he wished that [he] would get it back."31 Tobin said that "the phone company was a good place to work he wished to keep it that way and that [Bullock] would have a permanent job32 there from the time [he] started and that [he] would not be laid off on rainy days." Tobin admitted the conversation with Bullock. Tobin testified that Bullock wanted Tobin "to tell him that he would be worked everyday and wouldn't be laid off at any time at all." Tobin replied that he could "not tell him that." Bullock persisted and Tobin said, "You won't lose much. We'll treat you right." As the conversation continued Tobin said, ". . . you know we can't make changes as long as the union organizing process or the Union is trying to be organized.... You know somebody is trying to do that." Bullock asked, "[W]ho is it," Tobin responded, "I think its Jerry Miles and Aebersold. They worked on it." Tobin testified that during the conversation Bullock asked whether he would lose time on rainy days. Some time later Bullock accosted33 Tobin for a loan of $3,000 to consolidate all his debts and to buy a new pickup truck. According to Tobin he responded that "it just wouldn't do for [him] to loan [Bullock] that kind of money and the union organizing campaign going on like it is.... Bullock testified that on January 11 or 12, 1966, as he was preparing to go out to work from the Brandenburg parking lot (Tobin fixes the time as January 13, the morning before the election), Tobin observed that the "big day is coming up Friday" and asked "how Bullock stood."34 Bullock responded, "You know about how I stand." Tobin said, "Well, give me all the help you can." Tobin testified that he said, "Well, tomorrow is the big day coming up." Bullock replied, "Yes, it is." Tobin commented, "Well, I sure hope it turns out all right." To which Bullock countered, "Well, I do too." According to Tobin this was the entire conversation. Larry D. Singleton testified that sometime before the election in January 1966, Tobin called him into his office and said, "Son, how long have you been working here?" Singleton responded that he did not know exactly how long it had been. Whereupon Tobin said, "You have got a raise since you have been here, haven't you?" Singleton answered, "Yes, sir." Tobin said, "You didn't need the Union to get that for you, did you?" Singleton answered, "No, sir, I didn't." According to Tobin he saw Singleton in the hall a few days after Christmas and asked him to step into his office. Tobin asked him, "How are you making it?" Bullock answered, "Well, pretty good." Singleton then said, "I am going to get married and I am going to need more money." Tobin said, "Well, you haven't been here but a little while, have you?" Singleton couldn't remember how long he had been there, whereupon Tobin said, ". . . it was just this year and we have given you a raise. You didn't ask for it and didn't anybody have to help you get it. The Union didn't help you get it and I imagine you will make it all right. I wouldn't worry about it." On January 7, 1965, according to Singleton, Tobin called him aside and said, "I guess you know the big day is coming up Friday." Singleton answered, "Yes, sir." Thereupon Tobin said, "How do you feel about it?"35 or "What do you think about the Union" or something of that nature. Singleton said that he didn't know. Before Tobin left he said, "Well, see what you can do for me." Tobin places the conversation on January 13, and testified that he walked up to Singleton and said, "Well, tomorrow is the big day," Singleton answered, "Yes, sir." Tobin said, "Well, I hope everything comes out all right." Singleton responded, "I do too." Tobin testified that around November 30, 1965, he visited the Vine Grove branch in response to a request by Max Ewart transmitted to him through Supervisor Marion Henderson.36 According to Henderson, Ewart had asked him a number of questions Henderson had been unable to answer. Tobin arrived with his daughter, Mary Ann, a director, about 1 o'clock in the afternoon. Henderson, Larry Martin, G. T. Lewis, and Ewart were present. After a few casual remarks Tobin (according to his testimony) said, "Well, I am here, does anybody want to ask me anything?" Ewart said, "Well, I am interested in job security.... I like to be sure I am going to have a job," to which Tobin responded, "It looks to me like you don't have to worry about that. It looks to me like your job is secure enough. You have been here a long time. There is no reason why you should think you are going to leave.... 24 I have considered only the incidents which occurred after January 14 , 1965 (the date upon which the representation petition was filed), to determine whether the Union's objections to the election should be sustained See Goodyear Tire and Rubber Company, 138 NLRB 453 30I attach no significance to the fact that Bullock may have asked who started the Union since Tobin, in his speech of November 8, 1965 , solicited questions from the employees about union activities. Moreover, Tobin should have known that his comment would have given rise to Bullock 's question 31 Tobin denied this remark. Because of Tobm's attitude on the witness stand , his interest in the proceedings, and his appetency to keep the Union out of the Respondent's establishment, where there is a substantial conflict between the testimony of Tobin and other witnesses, I have discredited Tobin I have also considered the demeanor of the employee witnesses , most of whom testified under obvious stress, in making this finding 3' Tobin was asked, "Did you or did you not on this occasion promise Bullock a permanent job9" A Well, he was really hired as a permanent employee to start with and I kept telling him not to worry about it 73 It seems reasonable to assume that Bullock visited Tobin in response to the invitation in Tobin's speech , to wit " the door to my office is always open to you " 34 While Bullock seemed uncertain whether Tobin asked him how he "felt" or "stood," I do not consider that there was such a variance in the meaning between the two words in the context used as to cause me to doubt the veracity of Bullock 15 Tobin specifically denied that he had asked Singleton how he felt about the Union 36 Any findings relating to this incident pertain only to the objections to the election 298-668 0-69-54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is nothing, everything shows that it's all right. I don't see why you would be worried about that." Tobin added, "If we all perform, we will have job security and I don't care what it is or what's going on, anybody that don't do their lob will not have job security." Next Ewart said, "Well, I would like to have a classified job." Tobin responded that the telephone company was too small to have classified jobs and that everybody needed to be able to do everything. Ewart then "brought up something about the closed shop" to which Tobin responded, "Well, I don't think that I could agree to a closed shop in this day of being so sure and trying so hard not to discriminate against the people." Tobin commented, "The way I see it is it don't make any difference to me whether they are black, white, red or yellow, whether they are Democrat, Republican, Methodist, Baptist, Catholics or what, they can have a job with us if they do their job right and perform right and I am not going to discriminate against them." He further stated, "I am sure not going to agree unless I have to that a man can't work for us unless he belongs to a union." Tobin produced a copy of a contract between the Union and the General Telephone Company in Elizabethtown, together with a list of the Respondent's employees and the amount of money each was earning. He laid the contract on the table and said, "If you boys want to look at it there you can." The employees examined both the contract and the list. A comparison disclosed that some of the Respondent's employees were receiving more than some of those covered under the contract. During the discussion Ewart commented to Tobin, "Well, Mr. Tobin.... you tell us one thing and the Union tells us another thing. I just don't know who to believe. Now, who can we believe?" Tobin testified, "I told him that he had been working for me 2 or 3 years and that he had quit at one time, he had looked around a few days and came back and wanted to work again and I hired him back, talked to him about how he should do and tried to get him straightened out on not having quite so much temper and I tried to always answer his questions; that I had never yarned to him about anything. I always answered him to the very best of my ability and that I couldn't see-understand why he would believe somebody that he had known only a short time in preference to me when he had that kind of experience with what I told him." On cross-examination, Tobin testified that he told Ewart that he "didn't have to have a union to get [pay raises]; that [he] advanced him unusually fast in wages because he had been a good man and had been a good worker and he turned out work extra fast ... and that he hadn't had a union, it hadn't been necessary, that [he, Tobin] tried to give him what [he] thought he deserved." Tobin also commented that "they had known [him] for months or maybe years and they had never found that [he] had ever told them one thing that wasn't so." The testimony of other witnesses was in substantial agreement with that of Tobin except as follows: Larry Martin testified that after the employees looked at the differences in wage scales, Tobin "wanted to know why [they] would want a union." George T. Lewis testified that Tobin said that "he didn't know what the Union could do for us that we couldn't do for ourselves." Tobin testified, ". . . at different times when different ones would ask me questions and say things to me, if it came to the point where it was practical to say that I would say that `I don't believe the Union can do anything for you. We want to treat you right. We want to do everything for you that we can. We don't have to be made to do the things that we can do and we think is right to do."', This statement was made at his store to a number of the Respondent's employees and elsewhere. Tobin also said that he had made statements to employees that "we couldn't change benefits until this election was over...." Supervisor Henderson recalled a conversation with Ewart, in November 1965, of which Ewart testified. According to Henderson, as Ewart and Lewis approached him, he heard a remark that the Union had promised to get them a new winch truck and "they would like to get them some more benefits, some holidays, more holidays and sick leave." Henderson joined in the conversation and said, "[I]n my opinion, the Company had just as much right to ask to take away any of the benefits if the Union went in, as they did to ask for more ..." Henderson also recalled a conversation with Larry Martin around the first of December, of which Martin testified. According to Henderson, Martin told him he had signed a union authorization card. Henderson remarked, "I didn't care whether he did or not, I didn't think it would do him any good anyhow." I find that apropos of the enviroment created by the Respondent's antiunion campaign, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) in the following particulars, to Wit: 37 (1) Tobin created an impression of unlawful surveillance of employees' protected concerted activities in the latter part of November 1965, in the conversation with employee Bullock by revealing to him the names of employees who were purported to be union sponsors. (2) Tobin, during the conversation referred to above, unlawfully solicited Bullock's withdrawal from the Union by telling Bullock that he "wished" that Bullock would "get" his union card back if he had signed one. (3) Tobin, during the conversation referred to above, unlawfully promised a benefit to employee Bullock, to wit: that he "would have a permanent job"; he "would not be laid off on rainy days"; and he would be treated "right." (4) Tobin, in the first part of January 1966, prior to the election, unlawfully interrogated employee Bullock as to how he stood in reference to the union election and unlawfully solicited his support for the Respondent by his statement, ". . . give me all the help you can." (5) Tobin, sometime in January 1966, before the election, unlawfully called employee Larry Singleton into his office and impressed upon him the futility of selecting the Union as his bargaining agent by stating to him that he did not need the assistance of the Union to receive benefits from the Respondent and that he received a raise without the Union's help. (6) Tobin, during the incident referred to above, promised Singleton a benefit, to wit: that Singleton would "make it all right." (The latter was in reference to the additional financial burden which would be occasioned by Singleton's approaching marriage.) (7) Tobin, in January 1966, prior to the election, unlawfully interrogated employee Singleton as to what he felt and thought about the Union and unlawfully solicited 3' Findings 8, 9, 10, 11, and 14 are confined to the objections to the election BRANDENBURG TELEPHONE COMPANY his support by his statement, "... see what you can do for me." (8) Tobin, at the Vine Grove meeting of November 30, 1965, promised employee Ewart a benefit in the nature of job security when, in response to Ewart's inquiry, he stated, ". . . you don't have to worry about that. It looks to me like your job is secure enough." (9) Tobin, at the Vine Grove meeting referred to above, unlawfully interrogated employees when he asked employees why they wanted a union. (10) Tobin, at the Vine Grove meeting referred to above, interfered with employees' organizational rights when he advised employees he did not know what the Union could do for employees which they could not do for themselves. (11) Tobin, at the Vine Grove meeting referred to above, impressed employees with the futility of choosing the Union as a bargaining agent in that he said that they did not need the Union to get a pay raise. (12) Tobin, during the election campaign, advised employees of the futility of choosing the Union as bargaining agent by advising employees: "I don't believe the Union can do anything for you. We want to treat you right. We want to do everything for you that we can. We don't have to be made to do the things that we can do and we think is right to do." (13) Henderson created the impression that the Respondent would withdraw benefits presently enjoyed from employees if they selected a union as their bargaining agent when he told employee Ewart, in November 1965, that the Respondent had "just as much right to ask to take away any of the benefits if the Union went in, as the [Union] did to ask for more." (14) Henderson impressed employee Larry Martin of the futility of selecting a union by his statement to him around the first of December 1965, that he did not "think it would do him any good" to have signed a union card.$3 Each of the foregoing findings have not been considered in isolation but have been weighed upon the basis of the Respondent's entire course of conduct and evolved from the record as a whole. F. Objection 2 and the unfair labor practices related thereto: During the election campaign, the Respondent sent a series of letters to the employees under the signature of J. B. Tobin, manager, which letters were introduced to support allegations in objection 2 and certain allegations of the complaint. The letters will be considered in their chronological order. The letter of November 23, 1965: In the letter of November 23, 1965, Tobin advised the employees that the Union had filed a petition for an election and that he thought it "only fair" that he tell the employees "exactly how we feel on the subject of unions, and the attempt of these troublemakers of the Electrical Workers Union to come in here and organize our employees." Tobin warned, "WE DO NOT WANT A UNION AT BRANDENBURG TELEPHONE COMPANY!! We intend to oppose the efforts of Electrical Workers Local 369 to organize our employees by every lawful means available to us. It will always be a policy of this company to resist the efforts of outside troublemakers, particularly when their main purpose is to get their hands in your pockets and your pay checks for union dues, plus initiation fees, fines and assessments." Tobin asserted that it was the Respondent's "sincere belief that a union can do nothing for you that you can not do for yourself, or that this 837 company will do for you voluntarily," that the "Union can hurt you more than it can help you," and that it was "bad for both the Company and the employees." In the letter was expressed the hope that the employees would vote against the Union. The employees were reminded that they would be required to pay dues and that "unions can cost you money in other ways." Tobin rhetorically queried, "Do you understand that if you vote the Union in, you will be giving up the right to speak for yourself in all matters pertaining to your employment and putting in the hands of these outsiders the sole right to speak for you, and thus putting yourself at their mercy?" Tobin pointed out that the Union "can take you out on strike as they did the employees of the telephone company in Glasgow, Kentucky, in June of this year" and, if they do, "you can not draw unemployment compensation and the Company can permanently replace any striking employee with a permanent replacement." Tobin again reminded the employees that it was the Respondent's belief that the Union was "bad" for the employees and that it would be a "big mistake" for the employees to "vote this union in." The letter ended with the statement "If you have any questions about this union matter at anytime which you would like to discuss with me, I hope you will not hesitate to see me. I will welcome the opportunity to talk to you about this subject and to answer any of your questions." The letter of December 8, 1965: In the letter of December 8, 1965, Tobin informed the employees that the Respondent had agreed that the "NLRB may hold an election on Friday, January 14, 1966." Tobin warned the employees that "[e]veryone that works at Brandenburg Telephone Company, whether they are eligible to vote in the election or not, can be hurt by the kind of trouble the electric workers could cause if they win this election." Tobin pointed out that the Respondent would, for this reason, mail copies of its letters to all employees. In the letter Tobin explained, "You will now have to decide whether or not you want this union to come in here and stand between you and me and the other members of management in our relationship of each other." The letter refers to the Union's "main interest in life" as trying "to get their hands in your pockets for initiation fees, union dues, fines, assessments, and other charges." While noting that he understood that the Union had "made a lot of false promises," Tobin wrote, "I never have made you a promise I couldn't keep. I never have lied to you. I don't intend to do so now." Tobin ended his appeal with the thought that he had "every confidence" in the employees "own good judgment" that they would vote "NO" on January 14, 1966. The letter of December 14, 1965: In the letter of December 14, 1965, Tobin reminded the employees in capital letters that if the Union won the election, "THE LAW SAYS VERY CLEARLY THAT WE WOULD NOT HAVE TO AGREE TO ANY OF THE UNION'S DEMANDS OR MAKE ANY CONCESSIONS TO THE UNION." Tobin pointed out that collective bargaining was a "TWO WAY STREFT" and that "the Company has just as much right under the law to make demands on the Union as the Union has to make demands on the Company and this includes the right to demand reductions in benefits if we felt that such reductions are necessary or justified in light of the union's demands on us." Tobin wrote that the only way the Union could force the Company to agree to its demands was by strike and that its 38 Cf Kayser-Roth Hosiery Co , Inc , 158 NLRB 28. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lawyers had told it that if a strike occurred the Company had a right, under the law, to operate its business with replacement employees. Tobin made clear that it would be the Respondent's "intention in the event of strike to hire permanent replacements for strikers." Employees were reminded that "strikers can not draw unemployment compensation in Kentucky." Tobin commented, "I can tell you this, union or no union, strike or no strike, we could not and we would not agree to anything with the Electrical Workers Union or any other union which would put Brandenburg Telephone Company in a position where we could not give our customers good, prompt, efficient sex vice or operate this company properly and efficiently." "There is only one thing the professional union dues collectors and organizers can guarantee you, and that is TROUBLE. Union organizers have to have TROUBLE in order to justify asking you to pay them initiation fees, dues, fines and assessments. If there isn't any trouble, the union organizers will usually manufacture the same. They are experts at causing trouble." The letter ended with the paragraph: "Don't you think it is better to be safe than sorry. The only sure way for you to be safe-thc only way for you to be sure that the Electrical Workers Union won't cause any trouble here-is for you to vote 'NO' on Friday, January 14." The letter of December 27, 1965- The letter of December 27, ]965, commenced with the challenge, "Since we all know that the Electrical Workers Union would want to get their hands in your pockets and in your pay checks, and could also take you out on strike if you vote for them on January 14, don't you think you should ask yourself `How much could it cost me?' and `Can I afford it?' if you are thinking about `buying' this union in the NLRB election on January 14?" After discussing the union's initiation fees, dues, fines, and assessments, Tobin commented, "I can guarantee you that if the Electrical Workers Union is voted in at Brandenburg Telephone Company, ITEM NO. 1 on their list of contract demands will be for a union shop and check-off. Under a union shop contract, all employees are required to belong to the Union and pay initiation fees and monthly dues to the Union in order to hold their jobs. Under a check-off, the employer is required to deduct initiation fees and dues from the employees' wages and pay them over to the Union." Tobin pointed out that if the employees were on strike, they would not draw wages or unemployment compensation, that there would be no obligation of the Company to continue in effect any of the employees' employment benefits such as paid vacations, paid holidays, pension plan, hospital and medical insurance, and paid sick leave. Tobin wrote, "Most serious of all, however, is the fact that a strike could cost yourjob. The law is very clear that Brandenburg Telephone Company would have the right to hire permanent replacements for strikers, and once a striker has been permanently replaced, he ceases to be an employee. To put it plain, once a striker is permanently replaced, he loses his job." Tobin enclosed a leaflet showing how long it would take an employee "just to get even" in the event of strike. The letter ended with the admonition "PLAY IT SAFE, PROTECT WHAT YOU ALREADY HAVE, AND VOTE `NO' ON JANUARY 14." The letter of January 3, 1966. The January 3, 1966, letter was on the subject of job security. Tobin told the employees that the Union could not guarantee "job security." "Job security depends on how well we serve our customers. It depends on all of us working together-not pulling apart, as these outside union troublemakers could cause us to do." Tobin said that there was job security at the Company and just as the employees did not need any union to get it for them, they "don't need to pay initiation fees, dues, fines and assessments to any union to help keep it." Tobin commented, "Doesn't it make you just a little nervous to think how much power George `Legs' Wode and his union would have over you if they were voted in at Brandenburg Telephone Company? Do you think your job would really be very secure with them having the power of economic life and death over you? Who would you rather trust when it comes to `fob security'-'Legs' Wode or J. D. Tobin?" Tobin listed employee benefits and remarked, "Here again, you didn't have to pay any outsiders to come in here and talk with us about giving you these benefits. You don't need to pay outsiders to help you keep them." The letter ended with this paragraph, "Don't you think it is better to be safe than sorry? Do you want these outside troublemakers and professional union dues collectors of the Electrical Workers Union to come in here and possibly disrupt this organization and jeopardize your steady employment? The best way to play it safe-in fact the only way to play it safe is for you to vote 'NO' in the NLRB election on Friday, January 14." The letter of January 5, 1966: In the letter of January 5, 1966, Tobin pointed out that the Union' s business manager, George "Legs" Wode, according to the Union's bylaws was "a DICTATOR with a death-grip on the union's members." The letter also commented about the Union's find procedures. At the bottom of the letter was printed "BE SMART I PROTECT WHAT YOU HAVE!! VOTE,`NO' ON JANUARY 14TH ! ! !" The letter of January 8, 1966: The letter of January 8, 1966, was composed of questions and answers. Tobin responded to a question , "No, the Company will not cut wages or cut, any employees benefits if the Union loses the election. Neither will the Company discharge anyone because at one time they were in favor of the Union. I will give you my personal guarantee and word of honor on this. We aren't looking for reasons or excuses to fire people. On the contrary we have always done our best to provide steady work for you and this hasn't always been easy to do." In answer to another question , Tobin said, "Yes, you certainly do give up the right to speak for yourself if the Union wins the election next Friday. We would have to deal only with the Union about matters concerning your employment and we could no longer talk with you personally about them, no matter how much you as an individual might want to talk with us about them." The letter further implied that the union business manager would not let the employees have "anything to say about your affairs if this union is voted in ." In answer to a question as to what wage increases and other benefits the employee would receive if the Union won, Tobin replied, "ABSOLUTELY NONE !" Tobin further commented, if . . the ... Union wins the election, your wages and all other benefits would be frozen under the law, while the Company and Union were negotiating , and negotiations sometimes extend over a period of many months. The only right the Union would gain under the law by winning an election is the right to sit down and talk with us-to `bargain collectively,' as the law puts it. We would not have to agree to any of the union's demands , and I will tell BRANDENBURG TELEPHONE COMPANY 839 you now, that we would have no intention of agreeing to any demands which are unreasonable, or which would keep us from giving our customers good service, or which would put us in a position where we could not operate Brandenburg Telephone Company efficiently and profitably. The only weapon the Union has to try to make us agree to any such demands would be to take you out on strike."Tobin warned the employees that "We would have Just as much right under the law to demand a reduction in benefits as the Union would have to demand that we increase them. From what I have heard of the Electrical Workers, I have no doubt they would agree to a reduction in benefits if the Company would agree to a union shop, where everyone had to belong to the Union and pay dues and initiation fees to the Union in order to work at Brandenburg Telephone Co." Employees were reminded that if the Electrical Workers took them out on strike, they would lose their wages during the strike and could lose their jobs if the Company hired permanent replacements for them. Employees were referred to the Glasgow strike as proof of such statement. Tobin asserted that "the truth is that whenever the union troublemakers want a strike vote they have their own ways and means of getting one." The letter ended with the answer: "THE ONLY WAY YOU CAN BE SURE the Electrical Workers Union doesn't cause any trouble here is to vote against the Union in the NLRB election next Friday...." The letter of January 12, 1966• In the January 12, 1966, letter, Tobin again reminded the employees, "If the Union wins this election, your affairs will then be in the Union's hands, and you would no longer have the right to speak for yourself in matters pertaining to your employment. The Union would do your talking for you from that point on." Tobin emphasized again that the only thing which the Union could guarantee the employees is 'TROUBLE." Tobin made clear, "I believe a union would be a bad influence and could prevent us from working together. I honestly feel that you would be making a great personal mistake by voting the Union in. I sincerely feel, that you would be doing yourself and the Company an injustice. In all the years we have been in business , we have tried to show you by deeds, and not just words, that if this business is successful we want you to share in that success. For this, the benefits which you now enjoy as an employee of Brandenburg Telephone Company is certainly pioof of this." Tobin defined the issue before the employees in these words, ". . . you will have an opportunity on Friday to choose whether you want your affairs run by the Union, or whether you have confidence that we will always strive to voluntarily give you the best possible employment benefits, wage and working conditions, without your having to strike or walk a picket line for them, or pay any initiation fees, dues, fines and assessments to outsiders to merely come in here and talk with us about them." The letter ended with the paragraph: "WE DO NOT WANT THE ELECTRICAL WORKERS IN BRANDENBURG TELEPHONE COMPANY. When you go into the voting booth on Friday, I hope you will vote against the Electrical Workers by making `X' in the right hand square on the ballot under the word `NO."' A postscript was added- "I believe the enclosed newspaper article will be of interest and importance to you. It tells what happened in Glasgow. Don't let this happen here! !" The newspaper article dated July 29, 1965, described acts of violence which occurred at the South Central Rural Telephone Cooperative, Inc., Glasgow, Kentucky, while a strike was in progress. The article contained a picture of shattered door glass.39 I view the foregoing letters as extensions of Tobin's remarks of November 8, 1965. I find that these letters, which are coercive in character for the same reasons as those referred to in connection with Tobin's speech of November 8, 1965, encroach upon employee rights guaranteed by Section 7 of the Act and thus are violative of Section 8(a)(1) of the Act.90 G. During the election campaign period, the Employer delivered pay checks to employees in envelopes upon which was printed election propaganda One envelope bore the following printed matter: HAVE THE UNION ORGANIZERS FOR ELECTRICAL WORKERS UNION TOLD YOU THAT IF THEY TAKE YOU OUT ON STRIKE, THE COMPANY CAN HIRE PERMANENT REPLACEMENTS FOR ALL STRIKERS? and WHAT DOES THE ELECTRICAL WORKERS UNION DO FOR STRIKERS WHO HAVE BEEN PERMANENTLY REPLACED? Another envelope revealed: THE PAYCHECK IN THIS ENVELOPE INCLUDES YOUR HOLIDAY PAY FOR THANKSGIVING DAY, YOU DIDN'T NEED A UNION TO HELP YOU GET HOLIDAY PAY ! YOU DON'T NEED TO PAY A UNION TO HELP YOU KEEP IT ! ! A third envelope disclosed this wording: IF YOU HAD BEEN ON STRIKE LAST WEEK , YOU WOULD NOT HAVE DRAWN THIS PAYCHECK OR ANY UNEMPLOYMENT COMPENSATION BENEFITS. HOW MUCH WOULD THE ELECTRICAL WORKERS UNION HAVE PAID YOU FOR WALKING THE PICKET LINE? BE SMART!! VOTE FOR YOURSELF!! VOTE `NO' ON JANUARY 14!!! The wording on a fourth envelope advised the employees: THIS ENVELOPE CONTAINS YOUR PAYCHECK, IT ALSO CONTAINS AN IMPORTANT MESSAGE TO YOU. The important message was as follows: THE MONEY IN THIS ENVELOPE IS YOURS. IT AMOUNTS TO $5.90 PLUS 1% OF YOUR GROSS WAGES FOR DECEMBER . IF THE ELECTRICAL WORKERS UNION WINS THE ELECTION TODAY, THEY COULD DEMAND THAT WE AGREE TO DEDUCT UNION DUES AT THIS RATE FROM YOUR PAY EACH MONTH AND SEND IT TO THEM. YOU CAN KEEP THE ELECTRICAL WORKERS UNION FROM GETTING THEIR HANDS IN YOUR POCKET AND IN YOUR PAYCHECKS BY VOTING AGAINST THEM '" On the news article was printed in a box, "THIS HAPPENED AT GLASGOW i 1 DON'T LET IT HAPPEN AT BRANDENBURG I I VOTE `NO'ON FRIDAY, JANUARY 14 1 1 t" a" The following excerpt from The Trane Company, 137 NLRB 1506, 1510, is singularly apposite and supports the finding made herein Thus, the letters to employees conveyed the message that the Employer had a unilaterally established wage and employee benefit policy, that benefits had been accorded in the past and would be accorded in the future on the basis of this policy without the intervention of a union, that the policy would not be changed even if a union were selected to represent the employees, and therefore the selection of such a representative was an unnecessary expense and futile Such an attitude is not inconsistent with good-faith bargaining, it is also reasonably calculated to have a coercive effect upon employees who, no more than the generality of mankind, are inclined to indulge in futile acts There is no more effective way to dissuade employees from voting for a collective-bargaining representative than to tell them that their votes for such a representative will avail them nothing [Emphasis supplied J 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IN THE ELECTION TODAY. TO PROTECT YOUR MONEY AND THE RIGHT TO SPEAK FOR YOURSELF-PLAY IT SAFE. And in large red letters: VOTE'NO'TODAY!!! The gimmick of fictitiously deducting dues from the employees' paychecks may not be disassociated from the Respondent's overall campaign strategy. The fictitious dues deduction was an additional means of impressing Respondent's employees with the futility of choosing the Union as a bargaining agent since the charge therefore would constitute, in reality, a payment for "nothing." That this was the Respondent's purpose appears from messages printed on other paycheck envelopes; i.e. "You didn't need a union to help you get holiday pay! You don't need to pay a union to keep it !" The constant reminder that the employees did not need a labor union to share in the Respondent's openhandedness was tantamount to a promise that the Respondent's hands would remain outstretched and open if the employees rejected the Union but that its clenched fists would appear if the Union emerged victorious. The fictitious union dues deductions, as well as the messages appearing on the employees' paycheck envelopes, dramatized the futility of choosing the Union and the needless expense involved in such choice and was calculated to have a coercive effect on the Respondent's employees. The Respondent's conduct in this regard interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and constituted a violation of Section 8(a)(1) of the Act. See Crown Laundry & Dry Cleaners, Inc., 160 NLRB 746, Peachtree City Warehouse, Inc., 158 NLRB 1031, The Trane Company, 137 NLRB 1506. H. Objection 4 and the unfair labor practices related thereto: In 1957 the Respondent inaugurated a bonus policy which provided for paying a Christmas bonus to its employees in the amounts of $25 for those with 3 or more years of service, $15 for those with 2 to 3 years of service, and $10 for those with less than 2 years of service with the Company. According to Tobin in the summer of 1965, prior to the advent of the Union, after seeing the Company's figures for the month, Tobin remarked to Supervisors Brown and Wardrip, "If we can keep this up I would like to give everybody 2 weeks extra pay at Christmas time." In the latter part of November 1965, Tobin decided to grant the employees an extra Christmas bonus of 2 weeks' straight- time pay, which would be in addition to the regular Christmas bonus paid in the past. Tobin stated his reasons for giving the extra bonus as follows: ... our men had been doing extra well, had been doing a good job. We had done a lot of construction. We had completely finished our Battletown exchange, cut it over to one and four party service. We finished our Payneville exchange. We done a lot of work in the Irvington exchange, and we done some little bit in the Brandenburg exchange. We had made good money that year in `65. I felt like we could afford to do it, so we did it or were going to do it. Tobin consulted the Respondent's counsel as to whether he could grant the extra bonus to the voting unit as he wanted to do. Tobin, referring to his counsel, testified, "You said we could give it to all employees other than the voting unit if we wanted to, but to give it to them and say nothing about it and not advertise it, not a to-do about it, not say anything to any of them about it. Just give it to them and let that be all of it." Extra bonus checks together with the regular bonus checks were delivered to employees who performed work outside the voting unit. Employees in the voting unit received only the regular bonus. No publicity was given to the distribution. On the envelopes in which the bonus was distributed was printed "Merry Christmas." The total amount of extra bonus actually paid was $3,254. It would have amounted to $7,407 if the extra bonus had been paid to voting unit employees. According to Tobin the bonus "was only going to cost the Company half [$3,703.50] because half was going to come out of the income tax."4' The Respondent's operating and surplus or margin analysis shows for net income or margin, 1964, $74,723.96; 1965, $81,629.46; unappropriated earned surplus beginning 1965, $142,156.08; end of 1965, $222,235.54. Based upon these figures there appears little doubt that the Respondent could have paid the extra bonus in 1964 without imperiling the financial stability of the Company. Thus doubt exists whether the Company's improved financial condition was the real motive for Tobin's Christmas generosity. On the day when the extra Christmas bonus was distributed, in the presence of employee Lewis, employee Ewart asked Supervisor Henderson, "What is this about the Christmas bonus?" Henderson replied, "Mr. Tobin had told me earlier that his attorney, Mr. Smith, had advised him not to give the Christmas bonus to the people other than the office personnel and supervisors." Henderson commented further that Smith had advised Tobin not to give the bonus "because it might be held possibly against us, it might be against the law to do this." According to the credible testimony of employee Martin, Henderson also said that "if it hadn't been for the Union, what was going with the Union ... if it hadn't been for that, why, [the employees] might have all gotten ... the extra bonus." Ewart became angry when he did not receive the extra bonus and returned the bonus he did receive to the Company. That evening Ewart and Lewis paid Henderson a visit. Ewart informed Henderson that "he had been to see a couple of people, that he realized that Mr. Tobin was right, that he couldn't give employees under the Union restrictions a bonus and he said he wasn't going to vote for the Union. He didn't think it was going to get in anyhow. On the next Monday morning Ewart told Henderson that he wanted Henderson to ask Tobin to talk with him. Tobin came to Vine Grove and talked to Ewart. After each had observed that the incident had caused each to "show out a little bit," Tobin remarked, according to his testimony, "I guess we are even so let's just start over now." Ewart volunteered, "Well, I'm glad you did and I hope you do." Ewart continued, "I think they are going to lose it anyway." Whereupon Tobin said, "Well, that's all right, I hope that you don't vote for it but that's your privilege." The conversation then drifted to other matters. The regular bonus check was returned to Ewart. Ewart credibly testified that Tobin explained that he would have "' Tobin testified, " if you can cut it half in two when the Government is going to give half, it makes it easier " BRANDENBURG TELEPHONE COMPANY liked to have given the extra bonus but "he couldn't do it on account of the election." Tobin was unalterably dedicated to the proposition that the Union should be barred from the Respondent's establishment; he vigorously participated in the pursuit of ways and means to defeat the Union and to discourage the employees from selecting the Union as their bargaining agent. The "itch," which beset him, motivated him to search for devices and gimmicks to defeat the Union. His speech of November 8 is an example. Tobin's paternal attitude, his remarks, his letters, his behavior as revealed on the witness stand, and his entire campaign stance convinces me that the Christmas bonus was conceived and proffered as a means of thwarting the employees' choice of a bargaining representative. Had his scheme been accommodated, voting unit employees would have received the extra Christmas bonus, but Tobin's scheme ran counter to the advice of the Respondent's counsel. To overcome this obstacle a new machination was effected, which, it is contended, falls within the letter of the law. A part of the new scheme was to avoid an honest disclosure to Respondent's employees of what was occurring. Employees were left to speculate as to why some employees received the bonus and others not. When the matter came to light, several employees were told that "if it hadn't been for the Union" voting unit employees also would have received the bonus. Thus the Employer placed the onus for the withholding of the extra bonus upon the Union and its representatives. By shifting the onus for its not instituting the purported bonus to the Union, the Respondent sought to disparage and undermine the Union by creating the impression that the Union stood in the way of the voting unit employees getting the extra bonus. Moreover, the Respondent did nothing to dissipate the thought that, if the Union were defeated, the extra bonus would be forthcoming. The Respondent deliberately allowed the situation to stand obscured so that maximum antiunion reaction could develop. The granting in part and the withholding in part of the extra Christmas bonus was a practical lesson in what the employees could expect by way of the voluntary bestowal of benefits, if the Union were rejected, a lesson which the Respondent sought to teach through its election propaganda. In coercive effect there is little difference between what was contrived by the Respondent in the instant case and in American Paper & Supply Company, Container Division, 159 NLRB 1243, 1244.42 The Respondent's withholding of extra bonus payments to voting unit employees was calculated to interfere with and discourage the employees' choice of the Union as their union in its efforts to become the bargaining representative and was violative of Section 8(a)(1) of the Act. Cf. McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237. Likewise Henderson's statement that if it hadn't been for the Union, voting unit employees would 42 The Board, in American Paper & Supply Company, Container Division, said, The natural effect of the announcement was to convince the employees that they did not need a union in order to obtain wage increases or other improvements in their conditions of employment Moreover, by shifting to the Union the onus for its not instituting the purported planned wage increase, the Respondent sought to disparage and undermine the Union by carrying the impression that the Union stood in the way of the employees in getting a wage increase Thus, Respondent held out to the employees a benefit they would be receiving but for the Union 841 have received the extra bonus, and Tobin's remark to Ewart that he would have liked to have given the extra bonuses but "he couldn't do it on account of the election," interfered with employee rights guaranteed by Section 7 of the Act and were in violation of Section 8(a)(1) of the Act. American Paper & Supply Company, Container Division, supra. 1. Having found that the Respondent engaged in violations of Section 8(a)(1) of the Act between the date of filing the petition for the election and the date of the election, I find that the Respondent unlawfully interfered with the employees' exercise of a free choice for or against a bargaining representative. "Conduct violative of Section 8(a)(1) is a fortiori conduct which interferes with the exercise of free choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782,1786. Had the conduct of the Respondent described above been less than violative of Section 8(a)(1) of the Act, I would nevertheless have found unlawful interference with the election.43 The activities of the Respondent, by its conduct described above, lowered the standard of campaigning to the point where the uninhibited desires of the employees could not be determined in the election. The Respondent injected itself into the campaign to the point where the laboratory conditions imposed by the Board44 necessary for the conduct of a free election were destroyed. The Respondent obviously mistook its role. Representative elections are primarily for employees and not for employers.45 The Employer's interest and his great concern are "very unsubstantial." N.L.R.B. v. National Mineral Company, 134 F.2d 424, 426 (C.A. 7). Moreover, the issue which was to have been decided was whether on the basis of the employees' judgment the Union involved "will, if it achieves majority status and is accorded its statutory role as the employees' representative, be able to represent employees effectively in light of the existing economic realities." Brunswick Corporation, 147 NLRB 428, 433. As stated in N.L.R.B. v. Sunbeam Electric Manufacturing Co., 133 F.2d 856, 860 (C.A. 7), "The issue was whom would the employees have for their bargaining agent." The issue which was developed by the Respondent was whether the employees should be represented by the Union or Tobin. Thus, the Respondent created a false issue, for the employees could not choose Tobin to represent them. Cf. N.L.R.B. v. Sunbeam Electric Manufacturing Co., supra, 860. The Respondent's injection of itself in the election interfered with the employees' right to freely chose a bargaining representative. In N.L.R.B. v. Kentucky Utilities Company, 182 F.2d 810, 812 (C.A. 6), the court cited with approval the following language from N.L.R.B. v. Sunbeam Electric Manufacturing Co., supra, 860. Who is to represent the employees as bargaining agent and the manner of selection are matters which belong exclusively to the employees. The statute has 49 " in the appraisal by the Board of the bases for refusing to certify an election deemed contaminated , it is not required to rely only on conduct which would qualify as an unfair labor practice under Section 158 of the Act Cf Foreman & Clark, Inc v N L R B, 215 F 2d 396, 409-410 (9 Cir 1954), cert den. 348 U S 887, 75 S Ct 207, 99 L Ed 697 "N L R B. v Clearfield Cheese Co , 322 F 2d 89 (C A 3) 44 See General Shoe Corporation, 77 NLRB 124 45 "It is the agent of the employees that is being chosen, and not the agent of the employer " N L R B v National Mineral Company, 134 F 2d 424,426 (C A 7). 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made it so, and it is the duty of the employer to keep hands-off and maintain a strictly neutral attitude. Moreover, rather than to have submitted only objective considerations to its employees, the Respondent dwelt upon its subjective reaction to the employees' future choice of the Union by creating an aura of fear in respect to what the employees might expect by way of reprisals from the Respondent if they chose the Union. The Respondent made clear that the Union would not be able to represent employees effectively because it would not give the Union a fair chance to succeed as a bargaining representative. Tobin wrote the employees that the Respondent would "resist the efforts of outside trouble makers." I find that by reason of unlawful interference the election, conducted on January 14, 1966, should be set aside and held for naught.46 J. The Showing of Interest: Fifteen employees signed seemingly valid union designation cards on November 5 and 6, 1965. The demand for recognition and bargaining was served on November 10, 1965. On that date 27 eligible voters were in the unit which the parties had agreed upon as appropriate in the stipulation for certification upon consent election executed by the parties and approved by the Regional Director. I find that such unit is appropriate. The Respondent claims that the 10 cards which were signed at the Ritz Restaurant are invalid for the purpose of establishing majority interest. To prove this point the Respondent called as witnesses several employees who signed cards at the Ritz Restaurant. Their pertinent testimony is summarized below: Jack Simmons: Simmons testified that Union Representative Reesor said that "the cards had to have 51 percent for an election to be held for the Union to represent the men." Simmons read the card before signing. Lee Parr Ktng: Lee Parr King testified that he heard Reesor say that "we had to have the majority signed before they could do anything. We had-they had to have 51 percent signed to petition for an election." King read the card before signing. Russel Vandiver: Russel Vandiver testified that Reesor said that "we had to have 51 percent ... [b]efore they could do anything to have an election...." Vandiver said he did not remember the exact words. Vandiver read the card before signing. Henry Duncan. Henry Duncan testified, "Well, I wasn't paying too much attention when they were talking. He was talking about the cards, you know, and he wanted us to sign the cards to get us an election." General Counsel's witness Martin, who attended the meeting at the Ritz Restaurant, testified that Reesor "told us that these cards were not for, to get the Union in, but were for the Union to represent us to get an election to get the Union," and that "[t]here wasn't anything they could do until after the election." Upon the basis of the foregoing testimony, which preponderates, I am of the opinion that the 10 employees who signed union designation cards at the Ritz Restaurant, signed upon oral representations that such cards would not be used other than for election purposes, although it was not made plain to the employees that the cards would not be used for the purpose unambiguously set forth on the card. While it is my view that signed designation cards are the best evidence of the signatories' intent, absent a showing of fraud or coercion, nevertheless, I deem myself bound by Board precedent which, if my interpretation is not in error, would require a holding that the 10 cards may not be counted to establish the Union's majority status. See Jefferson Wire and Cable Corp., 159 NLRB 1384. Thus, I find that the General Counsel has not established that at all times since November 6, 1965, a majority of the employees in the unit described above had designated or selected the Union as their exclusive bargaining agent for the purposes of collective bargaining with the Respondent as alleged in the complaint. Accordingly, I recommend the dismissal of those allegations in the complaint alleging violations of Section 8(a)(5) of the Act. K. Since the Respondent was not obligated to bargain with the Union on and after November 6, 1965, it is recommended that paragraph 9(d) of the complaint be dismissed, to wit: Since on or about May 1, 1966, the Respondent unilaterally granted wage increases to its employees without bargaining with the Union, for the purpose of undermining the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. The Respondent's wrongful withholding of 1965 extra Christmas bonus payments caused employees in the voting unit to be deprived of bonuses which had been intended for them. To rectify this situation, I recommend that the Respondent pay each employee within the voting unit , who was on Respondent's payroll at the time the bonus was paid, a bonus equal to that which he would have received had not the Respondent unlawfully withheld such bonus from him. In this manner, the effects of the Respondent's unfair labor practices may be dissipated and the Respondent will be dissuaded from utilizing the withholding of bonuses for the purpose of demonstrating to its employees the futility of choosing a bargaining agent and the advantages in respect to rousing its generosity by rejecting the Union. Furthermore, in accordance with the Board's decision in H. W. Elson Bottling Company, 155 NLRB 714, it is recommended that the Union be given an opportunity to present its views to the voting unit employees assembled on company time and premises. It is further recommended that, upon the request of the Union, Respondent shall make available to the Union and its representatives at a mutually agreeable time within 3 months of the Recommended Order herein, suitable facilities such as are customarily used for employee meetings so that the Union 46 "If an election were won by the employer through illegal a right to have such election set aside " N L R B v Plaskolite, conduct and in violation of law, the Union was wronged and it had Inc , 309 F 2d 788, 790 (C A 6) BRANDENBURG TELEPHONE COMPANY may speak to the voting unit employees assembled on company time. Such facility shall be available for one 1- hour meeting. It is further recommended that, upon the request of the Union made within 1 month from the date of the Recommended Order herein, the Respondent immediately grant the Union and its representatives reasonable access for a 3-month period to its bulletin boards and all places where notices to employees are customarily posted. Conclusions of Law 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with , restraining, and coercing employees in the exercise of their rights guaranteed them 843 by Section 7 of the Act , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The Respondent unlawfully interfered with the representation election conducted on January 14, 1966; said election should be vacated and a second election directed. 5. All employees employed by Brandenburg Telephone Company in or in connection with the construction, installation , operation , and maintenance of its telephone system in Meade, Hardin , and Breckenridge Counties, Kentucky, except office clerical employees, and all guards and supervisors as defined in the National Labor Relations Act, as amended , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. [Recommended Order omitted from publication.]