Commercial Letter, Inc.

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commercial Letter, Inc. and Lithographers and Pho- toengravers International Union, Local 252, AFL-CIO. Case 14-CA-5952 November 28, 1972 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 4, 1971, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding in which it found that Respon- dent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, by refusing to bargain with the Union after it was certified by the Board, and ordered Respondent to take specific action to remedy such unfair labor practice. Subse- quently, the Board filed a petition with the United States Court of Appeals for the Eighth Circuit for enforcement of its Order. Thereafter, on January 18, 1972, the court handed down its decision2 denying enforcement and remanding the case to the Board for a hearing on the issues raised with respect to the validity of the election, based on the Union's alleged misconduct, and subsequent certification. On March 22, 1972, the Board issued an Order reopening the record and remanding the case for a hearing before an Administrative Law Judge.3 The Board's Order directed the Administrative Law Judge to receive evidence in accordance with the court's opinion, and further ordered that, upon conclusion of such hearing, the Administrative Law Judge should prepare a Supplemental Decision. On August 2, 1972, Administrative Law Judge Anne F. Schlezinger issued her Supplemental Deci- sion, attached hereto, in which she concluded that the Union's conduct did not, and was not intended to, interfere with the employees' free choice in the election. The Administrative Law Judge further found that Respondent refused to bargain with the certified Union in violation of Section 8(a)(5) and (1) of the Act, and recommended that the Board reaffirm its requirement that Respondent bargain collectively with the Union, as set forth in its Decision and Order, 188 NLRB No. 132. Thereafter, Respondent filed exceptions to the Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the court's opinion, the record, and the attached Supplemental Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to reaffirm its original Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Commercial Letter, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the original Decision and Order herein. 1 188 NLRB No. 132. 2 455 F.2d 109. 3 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner : On March 4, 1971, the National Labor Relations Board issued a Decision and Order ' in the above-entitled proceeding in which it granted the General Counsel's Motion for Summary Judgment and ordered the Respondent, Com- mercial Letter, Inc., to bargain collectively with Lithogra- phers and Photoengravers International Union , Local 252, AFL-CIO, herein referred to as the Union, which had been certified following an election held in Case 14-RC-6453. The United States Court of Appeals for the Eighth Circuit, in an opinion dated January 18, 1972,2 held that certain issues which the Respondent sought to raise with respect to the validity of the election conducted in the representation case on August 5, 1970, and the subsequent certification warranted a hearing. The court accordingly denied enforcement of the Board's Order and remanded the matter to the Board for a hearing on these issues. The Board directed, in an Order dated March 22 , that the record in this proceeding be reopened and a hearing held before a Trial Examiner for the purpose of receiving evidence in accordance with the court's opinion, that the Trial Examiner thereafter prepare and serve on the parties a supplemental decision, and that, following the service of such supplemental decision upon the parties , the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable. Accordingly, a hearing was held before the Trial Examiner at St. Louis, Missouri, on June 12 and 13, 1972. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence relevant to the issues raised by the court's opinion. Counsel waived the presenta- tion of oral argument at the close of the hearing. Subsequent to the hearing, briefs were filed by the 1 188 NLRB No. 132. 2 455 F.2d 109. 200 NLRB No. 90 COMMERCIAL LETTER, INC. Respondent on July 20 and by the Union on July 21, 1972,3 which have been duly considered. Upon the entire record in this matter and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. The Regional Director's Supplemental Decision and Certification of Representative Following the election held on August 5, 1970, the Respondent4 filed timely objections asserting that it "understands that on the evening preceding the election, the Union gave $51.00 to one employee and may have given money to other employees. The full circumstances of such payment or payments were made to influence the votes of the recipient or recipients to attend an election eve electioneering meeting. A switch in one vote would have been sufficient to affect the result of this election."5 The Regional Director, after an investigation, issued a decision finding that employees subpoenaed by the Union to appear at the hearing in the representation case were reimbursed for the time spent at the hearing for which time they were not paid by the Respondent, that this did not "amount to the bestowal of a tangible economic benefit such as has been found objectionable,"6 that no evidence had been disclosed that any employees were required to attend a preelection meeting in order to be reimbursed for time lost attending the hearing, and that no conduct had been disclosed by the investigation which constituted grounds for setting aside the election. The Regional Director accordingly certified the Union. On September 11, the Respondent filed a Request for Review with the Board, which issued a telegraphic order on October 26, 1970, denying the request on the ground that it raised no issues warranting review. 2. The Board Decision In its Decision and Order, the Board found no merit in the Respondent's contentions that it was deprived of due process by the denial of a hearing on its objections to the election, granted the General Counsel's Motion for Summary Judgment, denied the Respondent's cross Mo- tion for Summary Judgment, found, on the basis of admitted conduct, that the Respondent had violated its duty to bargain collectively with the Union, which had been certified, in violation of Section 8(a)(5) and (1) of the Act, and ordered the Respondent to cease and desist from such activity and to take certain affirmative action to remedy the unfair labor practices found, including the requirement that the Respondent bargain collectively with the Union.7 3 The time for filing briefs was extended , pursuant to the request of counsel for the Respondent, from July 6 to July 21, 1972. 4 The Respondent and the Union were designated in the representation case proceeding as the Employer and the Petitioner respectively. The Respondent objected, at the opening of the hearing and in its brief, to the instant hearing being held in the complaint rather than the representation case . The proceeding was remanded , however, to a Trial Examiner, and the representation case issues involved were fully litigated. See Bufkor-Pelzner Division, Inc., 197 NLRB No. 140. 5 The tally of ballots showed that of 12 eligible voters, 7 voted for, and 5 against, the Union. Allen Oglander, president of the Respondent, testified 3. The Court's Remand 535 The Court opinion states in part as follows: The representation case hearings were held on June 5, and June 19, 1970. The Union subpoenaed eight employees to appear at one or both of these hearings. There is nothing in the record to indicate the extent to which these employees testified at the hearing except the ambiguous statement contained in the Regional Director's Supplemental Decision and Certificate of Representation that "some of them testified." This statement could easily be read to mean that not all of them testified. These employees were paid various sums of money by the Union allegedly in reimbursement for wages lost while attending the hearings . Six of the employees were paid on or about July 21, 1970, the seventh was paid on or about July 28, and the eighth was paid on the evening of August 4 (the evening before the scheduled representation election) by a check, postdated to August 5, 1970. The Regional Director found that none of the employees were paid in excess of what they would have earned had they worked instead of attending the hearing; as to the delay in paying the eighth employee, he found no intent to influence the employee's vote by the election eve postdated check in the amount of $54.78. The Board has approached the problem of gifts or payments by labor or management on a pragmatic basis, based on the broad standard of whether the payment was intended to or would influence the election and thus impair a free choice on the part of the employees. A union's preelection payment or gift made to prospective voters in a representation election is ground for setting aside the election. General Cable Corp., 170 N.L.R.B. 1682 (1968); Wagner Electric Corp., 167 N.L.R.B. 532 (1967); Teletype Corp., 122 N.L.R.B. 1594 (1959). However reimbursements of employee's out-of-pocket expenses with an express disclaimer of intent to influence votes were found permissible in Federal Silk Mills, 107 N.L.R.B. 876 (1954). [Footnote omitted.] The questions raised here are obvious. Did the employees actually attend the hearing? How long were they at the hearing each day? Did they receive compensation from any other source during that period of time? Were their witness fees and expenses also paid by the Union as the summoning party as required by the National Labor Relations Act, and the regulations? [Footnote omitted.] What did the employees think was the purpose of the payments? Perhaps the most that the Respondent has about 100 employees and that he did not think any of them were represented by a union. 6 Citing Dit-MCO, Incorporated, 163 NLRB 1019. T The violations found by the Board include, in addition to refusing to bargain collectively with the Union as the exclusive representative of an appropriate unit, refusing to furnish the Union with requested information pertaining to conditions of employment of unit employees , bargaining directly and individually with unit employees, unilaterally announcing and thereafter granting wage increases to unit employees , unilaterally altering the lunchtimes of unit employees , and unilaterally instituting and granting a profit-sharing retirement plan for unit employees. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relevant question would be why did the Union subpoena eight employees , a number that would give them a majority in the unit of 12 and how did it choose the employees it wished to attend? The answers to all these questions have relevance to the intent of the Union in making the payments as well as to the effect that the payments might have on the employees' free choice and the election process. If the payments were grossly disproportionate to the time spent, it seems clear that the payments would have a tendency to influence the election results. Collins & Aikman Corp. v. NLRB, 383 F.2d 722, 729 (4th Cir. 1967). [Footnote omitted.) "There can be no question but that freedom of choice may be seriously interfered with by economic inducements." NLRB v. Gilmore Industries, Inc., 341 F.2d 240, 241 (6th Cir. 1965). Here the circumstances in which the payments, ostensibly reimbursement for expenses, were made are obviously of vital importance in determining whether or not they were made for the purpose or with the intent to influence the election . These payments on their face are questionable . They raise substantial factual issues that should be further investigated, calling for an adversary hearing. There is no showing who testified, the necessity for that testimony, the time taken in testifying, and whether the employees spent full time at the hearings or used the occasion for a limited vacation . This practice of subpoenaing a majority of employees in a representation unit and paying them in excess of a nominal amount is insidiously harmful, subject to potential abuse and should not be encouraged. See Federal Silk Mills, supra, n. 2. This court has also held that "the timing and the proportionate impact of the objectionable activity on the outcome of the election weigh heavily ." NLRB v. Blades Mfg. Co., 344 F.2d 998, 1003 (8th Cir. 1965). Thus the timing of the final payment to the eighth employee is critical and needs to be explored in greater depth than the Regional Director's investigation provided. The mere fact the payments were made causes the election to be suspect. . . . The intent of the Union in making the payments, as evidenced by the steps that they took or failed to take to prevent any misconcep- tion on the part of those receiving the payments is certainly a substantial and material fact. Federal Silk Mills is clearly no precedent for these payments. The cause is remanded to the Board for hearing on the issues discussed. We express no opinion on the merits ....8 8 The Court opinion is quoted at length to indicate not only the specific queries posed but also "the issues discussed" which were remanded for hearing, were litigated in this proceeding, and are discussed herein. Judge Lay, in a concurring opinion, agreed that a hearing should have been granted on the issue of the Union's intent in making the payments, but refused to "endorse the majority opinion's condemnation of the union's 4. The Representation Case Hearing The hearing in the representation case opened at 10 a.m. on June 5, 1970.9 Marvin Mantei, an official of the Union who organized the Respondent's employees, was the first witness, testifying briefly (about 2-1/2 pages of transcript) as to the Union's status as a labor organization. The next witness was Oglander, president of the Respondent, whose testimony took the remainder of that day and part of the second day of hearing. In the afternoon of the first day the Hearing Officer stated: Pursuant to an off-the-record discussion, it has been agreed that the hearing will not close today, but will be continued until 9 a.m., Friday, June 19. There are a number of witnesses who are present in the room who have been subpoenaed by the Petitioner in this case. Mr. Schuchat has indicated to me that those individu- als may leave at this time, if they wish to, but that they will be subject to the subpoena to appear on the 19th, unless they are notified otherwise by the Petitioner who has subpoenaed them. The interrogation of Oglander continued until the hearing was recessed at 4 p.m. On June 19, Oglander resumed his testimony. He was followed by Milton Leibach, Dominic Bommarito, Medford Mackley, and Joyce Tate, employees called by the Union, and William Goodall, a supervisor called by the Respondent. The transcript of the entire hearing, which closed at 3:40 p.m. on June 19, contains 206 pages. Counsel for the Respondent stated near the close, "May I ask for a brief recess. There have been some witnesses, a whole string of them, I don't know whether they have been subpoenaed, but they have been sitting here for a day and a half of hearings. I think the record should show they have withdrawn from the hearing room within the last few minutes, so I fully expected this to go on much longer than it has, and I'd like a few minutes to decide what my next procedure will be." A 10-minute recess was granted, following which the Respondent presented one additional witness, Goodall. After his testimony was concluded, counsel for the Respondent indicated that he needed a continuance to recall a witness "who testified earlier who was not released" to identify a document. During the ensuing discussion, the Hearing Officer commented that "All of the witnesses who were present in the room were subpoenaed by the Union. . . . I do not know whether they were released or not. It was completely within the option of the union to release them." At that point counsel for the Union stated, "I released them all." No continu- ance was sought as the document in question was admitted on the basis of a stipulation of the parties. 5. Evidence Presented at the Instant Hearing A. The subpoenas served by the Union Schuchat, one of the Union's attorneys, testified at the reimbursement of employees for expenses incurred in attending a represent- ation hearing," which issue he found was "not really before us," or the characterization of the Union's conduct by such descriptions as "suspect" and "insidiously harmful." 9 The transcript of that hearing was introduced in evidence herein, with agreement of all the parties, as one of the Respondent's Exhibits. COMMERCIAL LETTER, INC. 537 instant hearing that it was his decision to subpoena 10 employees for the representation case hearing; that he requested that number of Board subpoenas; that it was his opinion that all 10 would be needed to make out a prima facie case in the event the Respondent did not present witnesses as to the appropriate unit; that any of these employees might have been called upon to testify as to job classifications and functions in view of the unit issues raised at a conference with the Respondent; and that it was desirable to have those employees who might not testify hear the unit testimony of the Respondent's witnesses and indicate the inaccuracies, if any, in this testimony. Mantei testified that the Union considered that all those subpoe- naed might be called to testify about their jobs, and that another purpose in having them present, in view of the unit disputes, was "to keep the company honest" as to job categories when its witnesses testified. The petition for an election filed by the Union stated there were 10 employees in the unit sought. As Mantei testified, however, the Union could not have determined the number of employees the Board would include in this unit in view of the issues as to employees who performed various functions, as to the unit placement of certain categories, and as to the supervisory status of some individuals.10 Two additional employees believed by Mantei to be in the unit, Schreiner and Baity, were not subpoenaed because they were deaf. Subpoenas, placed in evidence by the Respondent at the instant hearing, were issued by the Union to Oglander, president of the Respondent, and to employees Boice, Bommarito, Davis, Gurley, Kniest, Leibach, Lewis, Mack- ley, Root, and Tate. The employees who testified on the second day of that hearing were Bommarito, Leibach, Mackley, and Tate. Boice and Lewis quit their jobs between the June 5 and 19 hearings, and were not present at the June 19 or the instant hearing. Of the remaining eight employees who were subpoenaed, Bommarito, Davis, Gurley, Kniest, Root, and Tate were present at the instant hearing. All testified except Kniest, who appeared but whom all counsel agreed to excuse because of a physical problem. Three of those who testified herein, Bommarito, Davis, and Root, were employed elsewhere at the time of the instant hearing. Credited testimony and the record as a whole show that the employees had been advised in advance that they would be subpoenaed and told where to obtain their subpoenas, and that they were not told what their testimony would cover, if called to testify, but assumed or understood it would be about their job duties. The record also shows, and I find, that all the employees who received subpoenas, except Bommarito who was away on vacation, were present throughout the hearing on June 5, including some who went to work early in the morning prior to going to the hearing; 11 that all eight who were still employed by the Respondent, including Bommarito, appeared at the hearing on June 19; that, according to credited testimony in this matter of Davis, Gurley, Root, and Tate, and the evidence in its entirety, all eight returned after the luncheon recess, which was from 11:55 a.m. to 1:30 p.m.; 12 and that they left at various times between their return from the luncheon recess and the close of the hearing at 3:40 p.m. Some of them checked before leaving with Schuchat, who testified herein that he advised them they could remain or leave as he had decided that the four employees who testified had established the Union's prima facie case. Some employees left because others with whom they rode to the hearing were leaving. Many of them went to the plant to pick up their paychecks.13 There is no evidence that anyone suggested they return to work that afternoon, and none did. Counsel for the Respondent questioned why, if the Union considered it necessary to subpoena so many employees, it did not arrange to have them go to work on an on-call basis. Schuchat, who testified that he has practiced labor law for many years and been involved in numerous Board proceedings, responded that employers frequently request that employees he has subpoenaed to testify on workdays be put on an on-call basis, but that no such request was made by the Respondent for the hearing on June 5 or 19. Schuchat and Mantei both testified that one reason the subpoenaed employees remained so long at the hearing was because neither of them anticipated the length of Oglander's testimony. B. Payments made by the Union Mantei as well as Tate and other employees testified credibly and without dispute that a question was raised, at Union meetings before any hearing was scheduled, about payment for time lost from work by employees called to testify for the Union if a hearing were held. Mantei explained at these meetings that it was the Union's policy to reimburse individuals for time thus lost from work, up to 8 hours a day at their hourly rate if they were not paid for this time by their employer, and that the procedure for obtaining such payment involved coming to the Union's headquarters and making out a "Lost Time Voucher." Mantei testified at the instant hearing that this has been the Union's established policy for many years, that it is applicable not only to attendance at hearings but also to various other endeavors undertaken on behalf of the 10 The Regional Director's Decision and Direction of Election sets forth the unit positions of the parties, his determinations as to the unit issues, and the bases therefor. He found appropriate a unit of lithographic production employees including pressmen, cameramen, strippers, and opaquers; included employees Root and Tate, and excluded cold typesetters, varitypers, typists, and proofreaders , contrary to the contentions of the Respondent ; excluded bindery employees contrary to the contentions of the Union; and ruled on supervisory issues. 11 Oglander testified, on the basis of payrolls and time cards, that on June 5 Root worked 1.8 hours, Davis 1.3 hours, and Mackley 1.6 hours, and were paid for this time. The work schedule for most employees was 8:30 to 5. 12 1 found unconvincing, and do not credit, Oglander's testimony that most of the eight did not return after the luncheon recess. Moreover, as noted above, counsel for the Respondent stated near the close of the June 19 hearing that "a whole string" of witnesses who had been sitting there "for a day and a half of hearings . . . have withdrawn from the hearing room within the last few minutes." 13 Root testified that: We were there to a certain point that last day. I didn't hear anybody testify, but I believe it was Mr. Oglander that said that our checks were waiting for us down there and that if we weren't needed that the Union would allow us to go down and pick up our checks , I believe we could. No other employee testified to such a statement by Oglander . On the other hand, Oglander, who was present throughout the instant hearing and who testified, did not deny that he made this statement. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union including participation in negotiating committee sessions, presentation of grievances, civic and charitable activities, and training seminars. The Union made no proffer of witness fees or mileage to the employees it subpoenaed. Mantei testified that he did not know this was required, and Schuchat testified that he was aware of this requirement but did not pay or offer to pay such fees because of the Union's policy to pay for lost time.14 Mantei was out of town on June 19, the second day of the hearing, and a good deal of time after that, which delayed preparation of the "Lost Time Vouchers." Upon his return he telephoned some of the employees and told them to come to the union office to make out their vouchers. Most of them did so on July 13. Tate testified that she did not recall why she did not do so on July 13 with the others, and that she prepared a voucher on July 22 after Mantei reminded her "that I had some money that was due to me and for me to come down and sign for it so I could get it." Root explained that he delayed in submitting his voucher because "I had other arrangements after work that I couldn't go down there." There are in evidence, as exhibits of the Respondent, "Lost Time Vouchers" signed by, and checks in payment made out to, Bommarito, Davis, Gurley, Kniest, Leibach, Mackley, Root, and Tate. The vouchers are dated July 13, 1970, except Tate's which is dated July 22 and Root's which is dated July 24. The checks are dated July 21 except Tate's which is dated July 24 and Root's which is dated August 5. No vouchers were submitted by or payments made to Boice or Lewis who had left the Respondent's employ before the June 19 hearing. Mantei testified that they would have been paid for attendance at the June 5 hearing but he was unable to locate Lewis, who had moved, to tell her the money was available, and he got in touch with Boice who told him to keep the money. Mantei, who handled the "lost time" payments, was present at the hearing on June 5 but was out of town and therefore not present on June 19. Schuchat was present on both hearing days but was not involved in making these payments. Credited testimony and the record as a whole show, and I find, that Bommarito was away on a paid vacation on June 5. He attended the June 19 hearing and testified in the afternoon, remained for a time after he testified, and then went to the plant to get his paycheck. As he knew from Union meetings he had attended about the "lost time" payments, he made out a "Lost Time Voucher" claiming, and was paid for, 8 hours. Tate was subpoenaed for one of the hearing days. She was on vacation but in town on the other hearing day, attended the hearing on both days, and testified in the afternoon of the second day. Her "Lost Time Voucher" claimed, and she was paid for, only 8 hours as she was on vacation time paid by the Respondent on the other day she was at the hearing. Davis went in to work early on the first day of the hearing as he had been asked to come and get out some of the work, and was paid by the Respondent for that time. He left after the luncheon recess on the second day of the hearing and went to the plant to get his paycheck but did not go back to work. Although he had been told the "Lost Time Voucher" was for payment for time lost because of the hearing, he testified that he put 15 hours on his voucher although he did not in fact lose 15 hours because he thought when he made out the voucher that he had. Mackley and Root also worked in the morning of June 5 before going to the hearing and were paid for the time, but testified they were not sure how long they worked. Mackley made out his voucher, and was reim- bursed, for 15 hours. Root made out his voucher and was reimbursed for 16 hours. The vouchers and checks of Gurley, Kniest, and Leibach are for 16 hours. C. Payment made to Root by the Union (1) Root's subpoena Root testified that his feeling about the Union was "negative . . . all along just about." He admitted that he had signed a card 15 and that "I would-well, I guess then I'd have to say yes, at that time I was probably more in favor of it." He also testified that he was not interested in attending meetings of the Union but was kept informed about its activities by conversations with other employees, particularly Tate with whom he talked frequently. Root testified that he heard, he thought from other employees, that he would get a subpoena; that he thought he was not told what the testimony would be about but understood it was about job classifications; that he supposed he had indicated to Mantei and his fellow employees before then that his feelings about the Union were "Probably nega- tive"; and that he nevertheless went to where employees told him the subpoenas were being served and obtained one. (2) Root's attendance at representation case hearing Root testified that he attended "both days for the entire hearing." He also testified that he went in to work early for about an hour on June 5. After asserting that he was present for the entire afternoon on the second day of the hearing, he admitted that "We were there to a certain point." He testified that "I didn't hear anybody testify," and then that he heard Leibach, Mackley, and Bommarito testify, but not Tate. He testified that Gurley left before he did but, when counsel for the Respondent repeatedly suggested in his questions that Gurley left before noon, answered, "He went to eat lunch with us, he came back, he left before the afternoon was over." Asked to repeat the answer because counsel did not hear it, he stated, "He went to lunch with us, he came back, and he left before the afternoon session began, I believe." He testified further that he did not believe anyone else left at that time. Just before Root left at "a certain point," he testified, Oglander suggested the employees could pick up their checks, and he went to the plant to pick up his check "a little after 4, something like that." 14 Sec. 102.66(g) of the Board's Rules and Regulations provides with 15 The cards of Root and Davis, dated April 16, 1970, were apparently regard to representation proceedings that "Witness fees and mileage shall be the first ones signed . The cards of Bommarito, Gurley, Kniest, Leibach, paid by the party at whose instance the witness appears." Mackley, and Tate are dated April 27, Boice's June 4, and Lewis's June 24. COMMERCIAL LETTER, INC. 539 (3) Root's voucher Root testified that he did not fill out a "Lost Time Voucher" when the others did on July 13 "Possibly because I didn't know about it, or if I was told, I had other arrangements after work that I couldn't go down there" and that he did not attend Union meetings but learned from conversations, he believed with Tate, about the others getting paid for time lost from work and how he could go about doing so. He finally called Mantei and, as he testified, said "I wanted to see him and talk with him about the Union, about how they could help us , help myself, and I would like to talk to him about it person to person." He did not remember whether he mentioned getting paid. Root, as arranged on the telephone, went to Mantei's office on Friday, July 24, where, he testified, the conversation covered "all sorts of stuff. We talked about the Union, we filled the voucher out, things in general, I suppose, but mostly pertaining to the Union." He could not recall what was said about lost pay, but believed he was the one who raised it. He also believed that he told Mantei he was "uncommitted," that Mantei made no response to this, and that he said he would like to fill out a voucher and did. The "Lost Time Voucher" form has spaces for the date paid and the check number which are furnished by the bookkeeper. The applicant fills out the spaces calling for the date, hourly rate of pay, reason for the lost time, and signature. In addition, Mantei testified, he told those preparing the forms to add their social security numbers and addresses, and they furnished the data needed to compute the withholding taxes. Mantei also testified that he informed Root as to the information to be furnished on the voucher, that Root made it out and handed it back to him, and that he turned it over to the bookkeeper without examining it, that he went out of town on July 25 and did not return to his office until late in the day on August 3, and that upon his return he was told by the bookkeeper that certain information had been omitted from Root's voucher. He did not recall, when he testified, exactly what had been omitted, but maintained that it was information the Union could not provide ; that such items as social security numbers or addresses could probably be furnished from union records but not the amount of time lost, hourly rate, or signature ; that one or more of these items must have been missing or Root would have been mailed a check as some other employees were ; and that he heard Root testify that his social security number or address was missing, which might have been the case, but other data must also have been missing . Mantei also testified that he could not send the form to Root to be completed as the Union's established policy was not to let such forms get out of the office ; that Root, like all the others claiming pay for lost time, had to complete the form in the Union's office; that checks could be mailed but only on the basis of completed forms, or could be delivered in person but only if Mantei was present as he was the only Union representative who could identify these employees. Mantei testified that he took the word of the individual submitting a "Lost Time Voucher" as to the amount of time lost and rate of pay. Credited testimony shows that Mantei told several employees with whom he had conversations on August 3 or 4 that Root's voucher was incorrect or incomplete, that if Root came in and corrected or completed the voucher he would receive his check, and that these employees should so inform Root. And Root testified that Tate "told me that I had left off some statement or address or something off of my voucher and this is why that they could not mail the check to me, that I had to go down and complete it." At another point he testified that the only time he recalled hearing about the voucher was on the night before the election and that he did not recall what Tate said about it. He testified later that he believed Tate told him Mantei said something was left out on the voucher and that he assumed he left the address off when Tate said the check could not be mailed. Root also testified that later that day Kniest told him "That my check was waiting for me down at the Union hall" and that he could get it by coming down that night, but then that he "couldn't really say" that Kniest asked him to come down that night, and that Kniest "might have" told him there was to be a meeting that night. Root also testified that Tate did ask him to attend the meeting that night. Asked by counsel for the Respondent whether, between the time he filled out the voucher form on July 24 and August 4, the date of his conversations referred to above, anyone communicated with him about why his check was not forthcoming, he replied, "Possibly." Asked if he recalled, he replied , "I can't say exactly; no, sir, I can't." And asked then if he might have known before August 4 there was some problem in connection with his voucher, he replied, "Not really, I don't think." When he was later asked by counsel for the Union if he heard anything between July 24 and August 4 about not getting his check, he replied, "I don't believe too much until that day I was down there . . . Until the 4th." (4) Root's attendance at the August 4 meeting As noted above, Root testified that Tate asked him on August 4 to attend the meeting that evening and that Kniest "might have" mentioned there was to be a meeting. He testified further that he was "Reluctant . . . at first" to attend, that he said he had other plans and would not go to the meeting, and that he later told Tate he would go but intended nevertheless to go to baseball practice and not to the meeting. When he went to the parking lot after work, however, his car, with which he had been having trouble, would not start. Some of the employees helped him try to get the car started but without success. When they left to go to the meeting, Root , admittedly without telling them he had planned not to go, rode to the meeting with one of the employees who had been helping him work on his car. Bommarito promised to return with him after the meeting to work further on the car. Mantei testified that when Root arrived on August 4 Root completed the voucher form so the check could be made out, that the check was later given to Mantei by the bookkeeper and handed over by him to Root, and that he could not recall any conversation with Root during the meeting which lasted about 30 minutes. Root's testimony about what occurred at the union hall that evening with regard to his voucher includes the following: A. The only thing that I really remember is a lady, 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a young lady, coming in and saying she needed my Social Security number. Q. Did you give it to her? A. Yes, I did. Q. Did you write anything that evening? A. I believe so, yes. Q. What did you write? A. My Social Security number it looks like. . . . it was done that night. Q. You wrote it down there that night? A. Yes, sir, it was. Q. Using the same pen? A. Possibly, yes. Q. Does that look like a pen that you were using at that time? A. Yes. Q. So you gave her your Social Security number, and was this at the beginning of the meeting? A. Yes, I would say pretty-yes, sir. Q. Did they then bring out the check? A. Shortly thereafter, yes sir. Q. So you got your check at the beginning of the meeting, is that right? A. No, sir, not right away. I filled out the voucher form, or finished filling out the voucher form at the beginning of the meeting, and I would say I received it midway. When counsel for the Union later asked Root what, if anything, was said to him at the August 4 meeting about getting his check, Root replied, "That I believe I had to fill out my Social Security number on there." At a later point Root testified that he did not think Mantei told him on July 24 to put down his Social Security number; that he "presumed" if Mantei had told him to do so he would have written it down at that time; that "I can't be sure, I suppose" that the number was not filled in on July 24; and that he was not sure whether he added something to the voucher on August 4 and might not have added anything to it. Root finally testified in this regard that on August 4, "The secretary in the office said she needed my Social Security number to complete the check," and that he gave it to her orally or wrote it on the voucher at that time. Root remained at the meeting which lasted about a half hour. He took no part in the discussion and had no conversation with Mantei. After the meeting he rode back to the parking lot with one of the employees, and Bommarito helped him for about a half hour to get his car started. (5) Root's check Root testified that Mantei explained, when he filled out the voucher, that it was "For the two days that I was subpoenaed for the Union, in their behalf, two days lost pay, compensation." Root also testified that "I went to work an hour before the one, so I imagine I got an hour's pay for that." He admitted that although it was clear to him that the Union intended to pay him only for the hours he had lost, he put 16 hours on his voucher because he forgot he had been paid for the time he worked. Root's check, like the others, bears the signatures of the union president and treasurer, indicates that it is for "Lost Time," and shows the amounts of the social security and withholding taxes. The check given to Root on the evening of August 4 was dated August 5. He testified that he did not remember if he noticed at the time that the check was postdated, that he might have, and that no one gave him any explanation of the date. Mantei explained in his testimony that the Union at that time had a part-time treasurer who came in about every other evening, after working all day as a lithographer, and made out the checks which he dated the next day. The credited testimony of Mantei, who maintains the Union's ledger, and ledger entries which are in evidence, show that checks numbered 5317 through 5322 were dated August 3; that no checks were issued dated August 4; that checks numbered 5323 through 5358, including Root's check numbered 5358, were dated August 5; that a check numbered 5359 was dated August 7; and that checks numbered consecutively thereafter were dated August 11. Mantei testified that he could not have given Root a check on the evening of August 4 dated August 4 because of the check numbering sequence. The testimony shows also that the check was prepared by the bookkeeper and signed by the president and the treasurer not at the meeting but in their offices, and that Root did not question the date on the check. (6) Root's participation in the election The election was held the next day , August 5, from 9 to 10 a.m. The record does not show whether Root cashed his check before or after he voted. While Root had signed a union card, he was, as he testified , "uncommitted" to the Union, his feelings about the Union "were basically the same throughout the Union's organizational campaign," he did not care to attend meetings, he had made his "negative" attitude toward it known to his coworkers, and he had told Mantei he was "uncommitted" and that was at the time the truth "more or less." Nevertheless, as shown by the Regional Director's Decision and Direction of Election, Root was included in the unit in accord with the Union's contentions, whereas the Respondent would have excluded him. Root in his testimony at the instant hearing volunteered the information that he voted against the Union. Root also testified, on examination by counsel for the Union, as follows: Q. Mr. Root, did anyone from the company ever question you about the payment you received? A. No. Q. From the Union? A. No. Q. No one from the company ever questioned you about the payment, not a foreman or anyone? A. Questioned me? Q. Asked you whether the Union had made a payment to you. A. No. Q. No one from the company spoke to you after the election about the payment that you were given? COMMERCIAL LETTER, INC. 541 A. Spoke to me. No one asked me, no, sir. Q. Did you tell someone? Did you volunteer that information, then? A. No, I did not volunteer any information. Q. Let me ask you this, Mr. Root. As far as you know, did anyone from the company know that the Union had paid you a certain amount? A. Yes; I'd have to say yes. Q. A. Who knew? Don Harbaugh. Q. Plant foreman. And you say he knew that you had received this payment? A. Yes. Q. How do you know that he knew? A. I told him. Q. You did tell him. When was that? A. The day of the first hearing; the day of the election, I'm sorry. Q. How did that come up? Did you just volunteer that information? Did he ask you about it? A. No. We were talking about my car and how I had got it started, where I had went with the people that I left with. I told him where I went and the reason that I went. Root also testified that he could not recall what he said to Harbaugh but that it was in accord with what he testified to about the payment by the Union. On examination thereafter by counsel for the Respondent, Root testified that the reason he gave Harbaugh "for going to that meeting" was "For receiving my two days pay." And further: Q. What did you tell him about going to that meeting? A. He had asked me why I had left the car and then come back almost an hour later, and I said I had a meeting to go to. Q. What else did you tell him? A. Of course he asked me what meeting, and I told him that I was going down to the Union 252 to complete a voucher form to pick up my back pay, not my back pay, my lost pay. CONCLUDING FINDINGS Subpoenas I find, on the basis of the foregoing and the record as a whole, that the Union subpoenaed 10 employees for the hearing in the representation case because its representatives were of the opinion that that many might be required to establish the Union's unit contentions. All were present at the first day of the hearing on June 5 except Bommarito who was on vacation, but none testified because the Respondent's president was on the witness stand virtually all day. The eight still employed were present at the second day of the hearing on June 19, and 4 of them testified. Employees left at different times 16 Sec. 102.66 of the Board's Rules and Regulations, which refers in paragraph (g) to payment of witness fees, also provides as follows: (b) Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated during the afternoon to get a ride, to pick up their paychecks, or when counsel for the Union indicated they could go or stay after he decided the Union had made a sufficient presentation as to the unit issues. When the Hearing Officer stated near the close of the hearing on the first day that the employees subpoenaed by the Union might be excused but were to return when the hearing resumed, no objection was made by the Respon- dent as to the necessity for the number of employees under subpoena,16 no request was made for these employees to be placed on an on-call basis, and no suggestion was made that the employees go back to work that afternoon or go in to work in the morning prior to coming to the resumed hearing. On the afternoon of the second day, when employees were being excused or leaving at various times, Root testified that Oglander suggested the employees could go to the plant to get their paychecks. I found Root an evasive and unreliable witness. I therefore credit his testimony only where it is not refuted by more credible witnesses or more reliable evidence. I credit his testimony about Oglander's suggestion, although it was uncorrobo- rated, as it was uncontradicted. Whether or not this testimony is credited, however, there is no evidence that Oglander or counsel for the Respondent suggested that the employees return to work after leaving the hearing. It is thus apparent, and I find, in response to some of the questions raised in the court opinion, that the Union subpoenaed the number of employees it did because, wisely or unwisely, it felt their presence was essential to establish the Union's unit contentions; that the employees who were subpoenaed did "actually attend the hearing"; that the nine then available were present virtually all the first day until the Hearing Officer stated on the record that they were excused but were to return for the second day; that the eight still employed were present until the afternoon of the second day; and that after four of the eight testified on the second day counsel for the Union decided that its prima facie case had been established. Payments for "lost time" I find further that the employees had been advised at union meetings that if a hearing were scheduled, and if they were subpoenaed by the Union, they would be reimbursed for the time lost from work for which they were not otherwise reimbursed. The record is clear that all the employees, including Root, understood that the payments were to cover the work time they lost on the Union's behalf, up to 8 hours a day at their hourly rate, if their employer was not paying them for such time. Thus Tate, who was on paid vacation on one of the two hearing days, made no claim for that time even though she attended the hearing on both days. Of the three employees who worked for between I and 2 hours on the morning of the first day, Davis and Mackley claimed and were paid for 15 hours, and Root claimed and was paid for 16 hours. None of those who left early on the afternoon of the second day returned to work. There is no evidence that they were asked to do so, or that it would have been feasible for them to do so that late in the afternoon. orally or in writing, accompanied by a short statement of the grounds of such objection, and included in the record. No such objection shall be deemed waived by further participation in the hearing. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mantei, who was not present on the second day of the hearing, took the word of those who submitted vouchers as to the amount of work time they lost. I find, therefore, on the evidence in its entirety, in reference to questions posed by the court, that the Union's payments, in all the circumstances shown by the present record, were not "ostensibly" but in fact "reimbursement for expenses" and were so understood by the employees. They were made in accord with the Union's long established policy thus to reimburse members for worktime and wages lost on behalf of the Union, and were not "grossly disproportionate to the time spent." The record does not show that the Union conditioned the payments on the way employees voted or on the outcome of the election, or that the "intent of the Union in making the payments, as evidenced by the steps that they took . . . to prevent any misconception on the part of those receiving the pay- ments," was to interfere with the employees' exercise of a free choice in the election. Payment to Root I find likewise that, in spite of "the timing of the final payment to the eighth employee," which has now been "explored in greater depth than the Regional Director's investigation provided," as directed by the Court, the evidence does not show that the Union's payment to Root was designed to influence or interfere with his free choice in the election. Root had admittedly been informed by Tate that "lost time" payments were being made, that Root was eligible to be reimbursed for his "lost time" for which he was not paid by the Respondent, and that he should go to the union headquarters and make out a voucher as all the other employees involved had been required to do. He had delayed doing so when the other employees did because, as he testified, he "had other arrangements after work." He finally called Mantei and said he would like to discuss the Union with Mantei "person to person." When he went to see Mantei on July 24, they did discuss the Union, as Root had requested, and Root then raised the subject of "lost time" and prepared a voucher. Mantei could not recall exactly what was omitted from Root's voucher. His testimony was explicit, however, that it was one of the items Root had to furnish in person. I credit this testimony of Mantei, and do not credit Root's various versions of the matter which included that he heard from Tate that he omitted "some statement or address"; that he "filled out the voucher form, or finished filling it out at the beginning of the meeting"; that he was told by the bookkeeper that she needed his social security number; that he filled in the social security number on the voucher; that he told the bookkeeper what the number was and she filled it in; that he added nothing on August 4 to the voucher as he had omitted nothing when he prepared it on July 24; and that he told his supervisor that he went to the meeting on August 4 "to complete a voucher form to pick up . . . my lost pay." Further, I find no improper significance in the fact that Root received his check on August 4, the evening prior to the election. He had not bothered to check with the Union before that time as to why he had not been paid. Mantei had been out of town during the interval between July 24, when Root prepared his voucher, and August 3, and, when advised by the bookkeeper upon his return that Root's voucher was incomplete, tried promptly to send word to Root. There is no indication in the record that Root would not have been paid earlier if he had completed his voucher earlier. As to the effect to be given to his presence at the meeting on the eve of the election, Root admittedly had no intention of going to the union hall on August 4, and it was not until he found he could not start his car after work that he accepted a ride to the meeting with the employees who had been helping him work on his car. Mantei and Root had no discussion on the evening of August 4. As Root testified, their discussion of the Union on July 24 had been at Root's request, and when he indicated to Mantei on July 24 that he was "uncommitted" to the Union, Mantei made no response. Root's check was given to him when he completed his voucher shortly after the meeting began. He stayed for the remainder of the 30- minute meeting but took no part in it. It is a reasonable inference from all the relevant circumstances, and I find, that Root went to the meeting on August 4 on his own volition as a result of his car trouble, not because of pressure by the Union, and that he stayed at the meeting after receiving his check in order to get a ride back to where he left his car and to obtain Bommarito's further assistance with his car. I find no basis, on all the facts of this case, for the contention set forth in the Respondent's brief that the Union required employees to come repeated- ly to the union office in regard to the vouchers in order to subject them to the Union's "electioneering." Further, I find no intent by the Union, in the fact that Root's check was dated August 5, to influence Root's vote in the election held on August 5. As Mantei credibly explained and the ledger entries in evidence show, the Union's bookkeeping system required that the checks written on the evening of August 4 be dated August 5. There is no showing that Root could not, or did not, cash the check before the election held from 9 to 10 a.m., or could not cash it after the election however he voted and whatever the outcome. There is likewise no showing how the Union could learn which way Root voted in a Board election, or could assure a prounion vote by paying him for his "lost time" or by postdating his check. And the fact is that despite Root's "reluctant" attendance at the August 4 meeting and the "lost time" payment made to him, Root, as he volunteered at the instant hearing, voted against the Union. As the court stated in its opinion, "The Board has approached the problem of gifts or payments by labor or management on a pragmatic basis, based on the broad standard of whether the payment was intended to or would influence the election and thus impair a free choice on the part of the employees." 17 Applying the Board's pragmatic 17 With regard to the Board's standard as applied to "labor or employer in an unorganized plant, with his almost absolute control over management," see The Louis-Allis Co. v. N.L.R.B., 463 F.2d 512 (C.A. 7, employment, wages, and working conditions, occupies a totally different June 14, 1972), quoting with approval the opinion in N.L.R.B. v. Golden Age position in a representation contest than a union, which is merely an Beverage Co., 415 F.2d 26, 30 (C.A. 5, 1969), holding in part that "An outsider seeking entrance to the plant." COMMERCIAL LETTER, INC. 543 standard, and bearing in mind the closeness of the election result in this case,18 I am convinced and find, on the entire record, that the Union's conduct here in issue, including the number of subpoenas it issued, the payments it made to employees for their "lost time" in lieu of witness fees and mileage, and its "lost time" payment to Root made on the evening before the election with a check dated on the day of the election, was not intended to and did not "impair a free choice on the part of the employees." 19 In conclusion, therefore, I would, on the basis of all the circumstances shown by the present record, affirm the Board's conclusion that the Respondent has refused to bargain with the certified Union in violation of Section 8(a)(5) and (1) of the Act, and its requirement that the Respondent bargain collectively with the Union, as set forth in the Board's Decision and Order published at 188 NLRB No. 132. 11 See N L R B v Piggly Wiggly Red River Co, Inc, 464 F 2d 106 (July 12, 1972) 19 N L R B v Glover Packing Co, 80 LRRM 3456 (C A 10, June 27, 1972), holding that, for threatening conduct of the type there involved "to warrant the setting aside of the election , it must not only be coercive in its effect but must also be so related to the election as to have had a probable effect upon the employees' actions at the polls [citing N L R B v Zelrich Co, 344 F 2d 1011 (CA 5, 1965)) "