Southern Paper Box Co.

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southern Paper Box Company and United Paperwork- ers International Union, AFL-CIO. Case 26-CA-4073 November 8, 1973 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 20, 1971, United Papermakers and Paperworkers, AFL--CIO,' was certified as the exclusive representative of Respondent's employees following an election held pursuant to a Decision and Direction of Election and the subsequent resolution of Respondent's objections, which were overruled.2 Thereafter, on October 22, 1971, the National Labor Relations Board issued its Decision and Order in the instant case,3 finding that Respon- dent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the certified Union. The Board, accordingly, ordered the Respondent, upon request, to bargain collectively with the Union. Respondent refused to comply with this Order, contending that the Board's certification of the Union was invalid. On January 31, 1973, the United States Court of Appeals for the Eighth Circuit issued its decision4 denying enforcement of the Board's order without prejudice to a renewal of the Board's enforcement petition, after further consideration by the Board. The court held that two of Respondent's objections to the election based on union and employee conduct prior to the election raised issues which should have been resolved by the Board upon a hearing. Accord- ingly, the court remanded the case to the Board.5 On March 28, 1973, the Board issued an order in which it reopened the record, remanded the case for further hearing consistent with the opinion of the court, and directed the Administrative Law Judge, upon conclusion of the hearing, to prepare and serve on the parties a supplemental decision containing findings of fact, conclusions of law, and recommen- dations. Pursuant to notice, a supplementary hearing was held on May 16 and 17, 1973, before Adminis- trative Law Judge Benjamin B. Lipton. On June 26, 1973, the Administrative Law Judge issued the attached Supplemental Decision. Thereaf- I On May 5, 1972, the original Charging Party, United Papermakers and Paperworkers, AFL CIO, merged with International Brotherhood of Pulp, Sulphite and Paper Mill Workers. The Charging Party 's name in the instant case was amended upon the unopposed motion of the Union at the May 16, 1973, hearing. 2 Case 26-RC-393 1; decision not printed in NLRB volumes. 3 193 NLRB 881. 4 N.LR.B v. Southern Paper Box Co, 473 F.2d 208 (C.A 8, 1973). 5 Respondent presented six objections to the election on appeal to the ter, the Respondent filed exceptions to the said Decision and a supporting brief. The Union refiled its brief to the Administrative Law Judge. 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 record and the attached Decision in light of the exceptions and briefs and, to the extent consistent herewith, has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt his Recommendation. Respondent objects to the conduct of the election, in part, on the ground that, although no actual violence of any sort occurred, threats made by fellow employees created an atmosphere which rendered a free election impossible. In determining whether such an atmosphere did, in fact, exist the Administrative Law Judge discussed in detail all the record testimony. He discredited the testimony of Reed, Ellis, and Hoover as to alleged threats by Lawson, who was at that time employed by Respondent and described by Reed as a small or short boy. These alleged threats by Lawson included: (a) according to Reed, who had already signed a union card, that Lawson, who normally walked ahead or behind her during her two-block walk home from the plant, came alongside and was speaking -apparently to an unidentified boy companion-of getting another employee and a supervisor to support the Union by "something like blow up his truck and burn his house and take care of [them]"; (b) according to Ellis, saying at the timeclock that he was going to use an open pocketknife which he was pointing toward Hoover, who was in front of him and unaware of the incident; telling Ellis and Hoover at the timeclock several days later that he was carrying a gun, and then looking over at Hoover and saying he "didn't want to catch a certain party out at night by herself"; and (c) according to Hoover, sitting in her parked car at lunchtime, asking her to sign a union card-which she declined to do-and saying she "stood a pretty good chance of losing her job if she did not," plus saying, several weeks later, that if she "wasn't for it, he'd catch [her] out away from there." 6 court Objections 1, III, IV, and V, concerning alleged union nusrepresenta- tions of wage rates and benefits, were found by the court to be insufficient to warrant hearing and are not in issue. 6 The Administrative Law Judge noted Hoover's positive denials that she had signed a card or given the Board agent an affidavit, both of which were in evidence. We do not adopt his further conclusion, after discrediting Hoover generally, that the alleged threats by Lawson-other than job loss- if made, do not "rise to the level of actual threats." 207 NLRB No. 3 SOUTHERN PAPER BOX COMPANY 57 Concerning alleged threats by employee Keaton,7 there was conflicting testimony. The Administrative Law Judge credited employee Andrews' account of a threat to Williford about job loss if the Union came in, an account which, unlike that of Williford, did not include the alleged statement by Keaton that the Williford family gas station "could be burglarized or broke into."8 The Administrative Law Judge also credited employee Valentine on the basis of plausi- bility. Valentine denied making an alleged threat to employee Henry, who was originally Respondent's witness at the investigatory stage of these proceed- ings and was neither called as a witness nor questioned by Respondent at the hearing. Direct examination of Henry by counsel for the Regional Director reveals that Henry was extremely unsure of any threat by Valentine. On cross-examination by counsel for the Union, Henry testified: "he may have told what I said, but I don't think he said much of anything." Upon review of the entire record, we find no basis for reversing these credibility resolutions of the Administrative Law Judge concerning alleged threats by Lawson, Keaton, and Valentine, as urged by the Respondent. Concerning the bomb prank incident involving James Whisnant, we see no merit in Respondent's contention that the timing, a month before the election, necessarily related to organizational activity because there had been no such occurrence before that activity or since. That Whisnant considered the prank as a joke is evidenced by the fact that he did not even search the vehicle after reading the cardboard sign saying there was a bomb in the nose of the trailer. We agree with the Administrative Law Judge that there is no basis on which to attribute the prank to the Union or any employee, or conclude that it was related to the pending election. We further agree with the Administrative Law Judge's analysis of the incident involving D. L. Harkey, a supervisor, that Charles Vaughan, in discussing newspaper reports concerning an organizational drive at a neighboring plant, told Harkey that if anyone crossed picket lines, "they wouldn't do it but once."9 A remark of this sort to a supervisor, without other employees present, could not have affected the vote. There remains for our consideration the Harris incident which the Administrative Law Judge viewed as a threat, although he found it ambiguous and not directed to an employee. According to employee Mons, Supervisor Hall-who before being made a supervisor on March 1,1 had signed a union card 7 We correct to read "April 6" instead of "April 16" the date of the lunchroom incident involving James Keaton ' Inasmuch as the Administrative Law Judge'has credited Andrews, we do not reach, nor do we concur in, his further opinion that Keaton's alleged -walked into the printing department about 2 weeks before the election, whereupon employee Harris commented to Mons that if "Hall didn't change his mind about the Union he would burn his house down." We disagree with the Administrative Law Judge that the threat "was ambiguous as to whether he was speaking for or against the Union" inasmuch as the record establishes that Harris was a well known union sympathizer, but agree that it was not directed at any employee . However, assuming Harris' remark was intended as an implied threat to Mons, despite specifying the house of Hall, we would not, on that alone, conclude that the election was conducted amid an atmosphere of fear or reprisal which rendered a free election impossible . Accord- ingly, we affirm the Administrative Law Judge's finding that Objection II should be overruled. Concerning Objection VI, the Administrative Law Judge found that Brown, the International represent- ative of the Union, responded to employee remarks at a February 1971 union meeting , concerning the 1970 bonus cut and President Karcher's trip to Europe several months before the bonus announce- ment, by saying : "Well, that's probably where the rest of your bonus went ." He also found that Brown made similar statements before the election at the homes of two employees . On March 11 , Respondent posted a question and answer bulletin which includ- ed the reason for the bonus cut of the previous year. Also, the Administrative Law Judge found that Respondent was aware of employee sentiment linking the bonus cut and the overseas vacation of Karcher, crediting former Supervisor Harkey that he reported such sentiment to Respondent's vice presi- dent more than 2 weeks before the April 9, 1971, election. Thus, ample time was available for Respon- dent to respond but it did not see fit to deny any relationship between the bonus cut and the vacation that went before, or to supply economic data supporting the cut. Contrary to Respondent's con- tention, we do not find Brown's remarks ' to be "campaign trickery" but merely a typical response in line with then current employee speculation, to which Respondent could have addressed itself had it desired to do so. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Southern Paper Box Company, Little Rock, Arkan- sas, its officers, agents, successors, and assigns, shall statement, according to Williford's version, "would reasonably be regarded as a vague predict" rather than a threat." 9 That Vaughan, who did not testify, also rererred to newspaper reports to the effect that people had cars turned over "and stuff like that" is not clear from the record. It appears that Harkey made the statement 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take the action set forth in our original Order dated October 22, 1971, as amended November 1, 1971. SUPPLEMENTAL DECISION BENJAMIN B. LIPTON, Administrative Law Judge: This proceeding was conducted before me on May 16 and 17, 1973, in Little Rock, Arkansas, for the limited purpose of providing a formal hearing on certain objections-to an election involving United Paperworkers International Union,' pursuant to a remand of the United States Court of Appeals for the Eighth Circuit.2 In Case 26-RC-3931, the Board had certified the Union as the exclusive representative in a production and maintenance unit following an election held on April 9, 1971,3 and the subsequent resolution, after administrative investigation, of various objections filed by Respondent .4 Thereafter, Respondent refused to honor the Union's certification, and the Board issued its Decision and Order on October 22, 1971, finding Respondent in violation of Section 8(a)(5) of the Act .5 The Eighth Circuit denied enforcement of the Board's Order and remanded the case for hearing on issues, delineated by the court, as arising from Respon- dent's Objections II and VI. On March 28, 1973, the Board ordered the record reopened for hearing "in accordance with the Court's remand." 6 In consideration of the pertinent orders and documents, the briefs filed herein by Respondent and Union, the record at the reopened hearing,7 and my observation of the demeanor of the witnesses, I make the following: Findings and Conclusions I OBJECTION II As the court noted, Respondent indicated it had affidavits to show that five affiants or other employees had been threatened by still other employees with loss of jobs, property damage, and physical violence unless these threatened employees continued to support the Union, and that such threats were communicated to at least 15 employees. For, the purpose of the hearing, the court specifically laid down that the tests are to determine (a) whether the alleged threats were in fact made; (b) how broadly they were communicated, and whether they created an atmosphere of fear and reprisal so as to render a free expression of choice impossible .8 Before examining the relevant evidence taken at the hearing , it should be observed that Respondent persistently sought to adduce matters not relied upon in its allegations before the Board and the court, or in a purely exploratory search for evidence 2 years after the events; 9 attempted to show general elements of "atmosphere" without first establishing the specific threats alleged; and sought to introduce remote hearsay evidence to establish certain of the alleged threats without offering the - direct testimony of the employees immediately involved or undertaking to show that the primary witnesses were not available.10 A. Richard Lawson Several incidents involve alleged misconduct by Lawson, then employed as a "scrapper" but who since left his employment with Respondent and, as agreed by all parties, was not available as a witness. (1) Hazel Reed's testimony : She was returning from work to her home two blocks from the plant. "These boys were either ahead of me every day, or behind me every day, to and from work. And this one day one of them walked ahead of me and one of them walked behind me, and they was talking about they was going to `do in' Virdon Winston's house and car, and A. G. Henry." (Henry was an employee of Respondent, and Winston Virden, as properly named, was a foreman.) Then she stated that Lawson" was walking "up next to" her but she did not know the name of his companion, except that he also worked as a scrapper -in the plant. The two "boys" were talking about getting employees to support the Union, and Lawson said "something like blow up his truck and burn his house and take care of" Virden and Henry. Lawson did not say anything to her, and she did not know where he was looking when he uttered the threat . She "felt" that it was intended to apply to her. From this day until the I The name appears as amended pursuant to the Union's unopposed motion granted at the hearing The charge herein had been filed by United Papermakers and Paperworkers, AFL-CIO, which effectively merged with International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, as of May 5, 1972. 2 N L R B v. Southern Paper Box Co„ 473 F.2d 208 (CA. 8, 1973). 3 In the election, 83 votes were cast for, and 72 against, the Union, with 4 ballots challenged. 4 The Board denied Respondent's request for review containing specific exceptions to the Regional Director's supplemental decision and cer tifica- tion of March 11, 1971. 5 193 NLRB 881 6 The evidence uncovered by the Regional Director in his investigation of Respondent's Objections II and VI was made available to the parties at the hearing. 7 The hearing was conducted generally in accordance with the procedures applicable in nonadversary proceedings-particularly in placing upon the Respondent the burden of going forward with evidence in support of its election objections Respondent's position that the Board or the Union had the initial burden of producing evidence on the objections in issue was rejected Bill's Institutional Commissary Corporation, 186 NLRB 597, fn 5. And see N.L.R B v Griffith Oldsmobile, Inc., 455 F.2d 867, 870 (C.A. 8, 1972); Shoreline Enterprises ofAmerica, Inc. v. N.L.R.B., 262 F 2d 933 (C.A. 5, 1959)-holding that the "heavy burden" of proof is on the party seeking to overturn the election. 8 In so holding, the court recognized "that neither Union nor employers can prevent misdeeds or misstatements by persons over whom they have no control, and that a rule giving the same weight to conduct by third persons as to conduct attributable to the parties would substantially diminish the possibility of obtaining quick and conclusive election results . Nevertheless, representational elections will be set aside where nonparty misconduct has taken place and such conduct is shown to have created an atmosphere of fear and reprisal ..." citing Manning, Maxwell & Moore, Incorporated v. N.LR.B., 324 F2d 857, 858 (CA. 5, 1963) And see Modine Manufacturing Company, 203 NLRB No. 77. 9 In the Manning case, id at pp. 858-859, see also the holding that evidence offered in the complaint hearing of additional preelection threats as basis for objections need not be admitted where not shown to be newly discovered and previously unavailable io See Addison Shoe Corporation, 184 NLRB 333 (fn. 1), remanded 450 F.2d 115 (CA. 8, 1971). I do not construe the latter opinion of the court, cited by Respondent in its brief, as requiring the admission of any sort of hearsay testimony in a Board nonadversary formal hearing of this type. The present case is distinguishable, especially in view of the broad nature of the "atmosphere" allegation, the character of the testimony sought to be adduced in relation to the issues, and the need reasonably to control the evidence within the specific areas delimited by the Court. 11 Whom she described as a small or short "boy-" SOUTHERN PAPER BOX COMPANY 59 election was over, she carried a gun in her purse at work and at home. She did not report the threat to anyone.12 Before this incident' she had signed a union card. Thereafter, when Lawson tried to give her a card, she told him she already had one. Lawson asked her to pass the card to another woman, and she did so. It- is my distinct impression from Reed's testimony and her demeanor that she was greatly exaggerating the facts and the extent of her fears. The story lacks plausibility, and I do -not believe it as given. Reasonably, any person in the stated circumstances would have reported the matter to the employer or the police or conveyed some warning to Virden and Henry of such a serious threat. Nor is it convincing that she would have thought herself the object of the threat. Among other things, she disclosed that she had previously signed a union card and had cooperated with. Lawson in passing a card to another employee.13 In any case, it was not established that the ostensible threat was communicated to other employees. (2) Alma Jean Ellis testified to an incident 1 week before the election while she, Mae Ollie Hoover, and Lawson were in a group waiting to clock out at the end of the workday. Lawson was in front of and facing Ellis and Hoover, who were approximately , alongside each other.14 He was holding a pocket knife 15 "kind of down," with his thumb on the open blade pointed toward Hoover. Ellis slapped or hit Hoover on the back and said, "Mae, he's got a knife." Ellis then asked him, "what are you going to do with that knife?" He said, I'm going to use it," and " more or less looked at Mae." Ellis and Hoover walked out of the plant together, and no further mention was made of te knife. Hoover testified in effect that she was completely unaware of the incident at the time. It was not until the next day that she learned about it from Ellis.16 On the information she received, Hoover stated that Lawson "had a knife in my back and I was in front of him and he was next to me and [Ellis] was behind him." Ellis also testified that, 2 or 3 days thereafter, Lawson told her and Hoover at .the timeclock that he was carrying a gun around. He "just looked over at [Hoover] and said he didn't want to catch a certain party out at night by herself." This occurred during a conversation in which Lawson indicated he was going to vote for the Union. Hoover was not questioned concerning this incident.l7 The quality of the above testimony is extremely poor. There is no evidence in the case of actual violence by Lawson (or by any other employee). Concerning the knife and' gun incidents, the circumstances described are too vague, inconsistent, and implausible to provide a sufficient basis for holding that threats of force by Lawson were made or reasonably to be understood. Further, it is not shown that these incidents were discussed by Ellis and Hoover with other employees or reported to any authori- ties. t2_ Previously she testified she "believes" she told employee Mae Ollie Hoover, and also her mother and father. 13 An inconsistency is apparent and unclarified in Reed's testimony that, prior to the election, Charles Fowler had asked her why she was against the Union and she gave him certain reasons. 14 Ellis gave confusing and changing testimony as to the respective positions at the timeclock 15 A "regular little pocket knife " - (3) The testimony of Hoover raises considerable doubt as to her reliability in view of her positive denials that she signed a union card and that she had given an affidavit to a Board agent, although the facts of the union card and the affidavit were clearlyestablished. Hoover testified in substance: About 1 month before the election, she had a conversation with Lawson in her parked car at lunchtime. He asked her to sign a union card, and she declined. About 2 weeks later, Lawson told her that if she was not going to be for the Union, she would lose her job. He also said that if she "wasn't for it, he'd catch [her] out away from there." She responded, "well, we'll see how that works out." Described in Hoover's affidavit, Lawson's assertion was that she "stood a pretty good chance of losing her job" if she did not sign a card. The alleged statement that he would "catch" her "away from there" was not mentioned. And Hoover further averred that "before the election, I was never threatened over the union , that is, I was never told anything would happen to me if I backed out." Faber Hall, a supervisor, testified that a couple of weeks before the election Hoover came to him in tears. She said that Lawson told her she would lose her job if she did not vote for the Union. Hall did not report this to "any top management." Winston Virden, a supervisor, testified that Hoover told him before the election of her conversation with Lawson in her car at the parking lot. She said Lawson told her if she did not vote for the Union "something would happen." 18- I do not credit Hoover generally. Even if made, l would not find that such statements by Lawson rise to the level of actual threats,19 or that she was intimidated thereby. Nor were the alleged statements communicated to other employees. B. James Keaton Jimmy Andrews, an employee, testified concerning a conversation in the lunchroom 2 weeks before the election. He was seated with several persons at a table. Employee Katie Williford said she did not know how she was going to vote. Standing nearby, Keaton, an employee, remarked that "if she didn't vote for that she could lose her job if the --union went in." Williford told Keaton she did not believe -he knew what he was talking about, and she was going to see her boss-about it. Williford then 'testified that at her work station one night, Keaton asked her if she was going to vote, and she said, no. He told her, "if the union gets in, you will be sweeping floors." She responded, "I don't want to hear no more on the subject." A week later, about April 16, the lunchroom incident took place. Keaton asked her "again" if she was voting for the Union, and she answered negatively. He said if she did not vote for the Union that is Ellis "could have sworn" Hoover heard her remark about the knife at the time of the incident 17 Hoover's testimony was heard by Ellis . Ellis gave no affidavit is This is, of course, hearsay in attempting to evidence a threat Hoover described no threat in her own account of the car conversation, supra 79 Prediction of job loss is discussed below ; the other statements are too vague. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she would be sweeping floors, that she "might not be there," 20 and that a gas station operated by her family "could be burglarized or broke into." She told Keaton she "didn't think he knew what he was talking about," and "didn't think he had any control over" her job.21 That day she talked to her night foreman, a supervisor, concerning this incident. She could not identify the persons at the lunch table other than Andrews. She did not vote in the election. Keaton was no longer employed, and did not testify. There were no affidavits in the Board's file from Andrews or Williford. Clearly different versions were given by Andrews and Williford, both Respondent's witnesses, and I am inclined to credit only that of Andrews.22 I find that Williford, and employees generally, were capable of evaluating the source, i.e., Keaton, as lacking in authority to affect their jobs.23 Moreover, it was not shown that Keaton's state- ments were heard by or spread to employees other than Andrews. C. Richard Harris Paul B. Mons, a' maintenance mechanic, was working in the printing department 2 weeks before the election when Supervisor Faber Hall walked in. Mons testified that employee Harris told him, out of Hall's presence, if "Hall didn't change his mind about the union that he would bum his house down." 24 I do not credit Mons that he told it to Hoover on the same day. In his affidavit to the Board, he stated that he "did not repeat it to Hall or anyone else before the election." I find that the threat was not directed against an employee and was not within the awareness of employees other than Mons. As expressed, Harris' statement is ambiguous as to whether he was speaking for or against the Union.25 E. Otis O. Valentine A. G. Henry, an employee, was called by counsel for the Regional Director on the basis of an affidavit obtained in the investigation of Respondent's objections. Henry testified that, about 1 month before the election, employee Valentine asked him if he was for or against the Union. He answered he was against it. Valentine then said, in effect, that he "should be careful because there are people around here that might do anything." He added that if Henry kept his mouth shut everything will be all right. Shortly thereafter, Valentine told him that "if it went union," he would see that Henry did not work there any more. Henry related the conversation to his boss, Supervisor William R. Motley, and did not know whether he told anybody else in the plant. Motley commented that he did not know how they could cause him to lose his job.26 I am constrained to credit Valentine on the basis of plausibility. In any case, I would find the statement-con- cerning people around here who might do anything-as too vague to constitute a threat. Similar to the Keaton remark, treated above, I could find that Henry, particularly after the assurance he received from Motley, could well assess Valentine's lack of power to cause the loss of any job. And these alleged threats were not revealed to any other employees. F. Charles Vaughn The Regional Director's counsel also developed through D. L. Harkey, a former supervisor, that Vaughn once told him, if anyone crossed picket lines "they wouldn't do it but once." Vaughn also referred to newspaper reports to the effect that people had cars turned over "and stuff like that." Made to a supervisor, this type of hypothetical comment could not have affected any employee votes in the election. D. James J. Whisnant Whisnant, an over-the-road truckdriver for Respondent, testified that, before the election, he checked the rear section of his truck after it was loaded on company premises. He found attached to an inside wall a large piece of cardboard with writing on it to the effect that there was a bomb in the nose of the trailer. He took down the piece of cardboard and tore it up. He made no search for the bomb and did not report the matter to any authorities. He imagined "it was a prank or someone trying to have some fun." After he returned from his trip several days later, he discussed the incident with other drivers and the dispatcher in the vein that it was a joke. In his affidavit to the Board, there is no mention of the bomb notice. - The bomb prank is not attributable to the Union, or to any employee, or related in any way to the pending election. 20 Elicited on redirect by a leading question. 21 Tending to show absence of intimidation. 22 That the gas station "could be burglarized" would, in my opinion, reasonably be regarded as a vague prediction, rather than a threat that Keaton himself would carry out. 23 Cf., N L.R.B. v. Griffith Oldsmobile, Inc., supra concerning employee statements that union membership would be a requirement for holding a job as not constituting grounds for voiding the election G. Conclusion In view of all of the foregoing, I conclude that Respondent failed to sustain its "heavy burden" of establishing that threats were made which created an atmosphere of fear and reprisal so as to affect the free choice of employees in the Board election. Accordingly, it is recommended that Objection II be dismissed. OBJECTION VI The objection alleges that the Union through its agents "purposely deceived the employees by stating that the employer's president had misappropriated company funds, using them for his personal enjoyment, and thus deprived employees of benefits to which they were entitled." The court indicated that the crucial questions are whether or not a certain statement attributed to a union representative 24 Harris was not employed by Respondent at the time of the hearing, he did not testify. Hams had driven to and from work in a car pool with Hall and others. 25 Hall testified he had signed a union card in January 1971 and attended some union meetings. One month before the election, on March 11, 1971, the Regional Director formally found, on a disputed issue, that Hall was a supervisor. 26 Motley was not questioned on this subject. SOUTHERN PAPER BOX COMPANY 61 was in fact made, and whether or not Respondent had an opportunity to respond. Reed, Andrews, Hoover, and Mons testified that a statement concerning Respondent's president was made at a union meeting'at the Rose Motel, chaired by Waylon Brown, an International representative of the Union. I accept Brown's testimony that the only meeting at the Rose Motel took place on February 2, 1971.27 Andrews gave this version, which I credit as substantially accurate: Someone inquired whether the bonus would be cut out if the Union came in. The reply was that present benefits would not be cut. Someone indicated that the bonuses to employees in 1970 were smaller than they were in previous years. Then someone said that Respondent's president, Raymond Karcher, had made a trip to Europe. Brown28 remarked, "well, that's probably where the rest of your bonus went." Hoover also stated that Brown used the word "probably," while Mons indicated he had no clear recollection of the way it was expressed by Brown. Reed could not identify the source of the remark, but the substance of her testimony was similar to that of Andrews. Mrs. Charlie Metcalf and Whisnant each testified, in substance, that during a visit by Brown to their respective homes before the election, Brown told them that the bonus was cut because Karcher had taken the money for a trip to Europe. Brown testified he "could have" made the statement with the qualifying term such as "probably," but he definitely told no one that Karcher did take the bonus money for a tour to Europe.29 The distinction may be of minor consequence. However, since Andrews and Hoover specifically recalled the word "probably" in the context, it appears plausible to me that Brown was consistent as to the form in which he framed such remarks concerning Karcher. I find that, in this manner, such statements were made by Brown at the February 2 meeting and at the homes of Metcalf and Whisnant. The established practice of Respondent was to pay yearly bonuses to the employees about September or October, expressly predicated upon the extent of its profits, as shown in the fiscal year ending June 30. In 1969, the employees received the equivalent of 2 weeks' pay; this amount was cut approximately in half in 1970. In June 1970, President Karcher went on a cruise to Europe. In September or October, Respondent explained to the employees by letter accompanying each payment that it was sorry the profit this year did not justify a larger bonus. The amount of.the annual profit was not disclosed to the employees. As Respondent was aware, the employees openly discussed their discontent with the bonus reduction. Before the Union appeared on the scene (about Decem- ber), it was spoken among the employees that Karcher used the difference in the bonus money to finance his trip to Europe. During the campaign, after issuance of the direction of election (on March 11, 1971), Respondent posted on the bulletin board a series of questions and answers, which included the following: If the Company is not doing so well and had to cut bonuses-then where did they get the money to buy all that expensive new equipment? Answer: We borrowed from the bank, just like you do if you need to buy a car or any other large purchase. We had to do this to keep up with our competition to provide you as much job opportunity as possible. D. L. Harkey, a former supervisor of Respondent, testified: "It was all over the plant" that the employees were unhappy regarding the reduction in the bonus. Three weeks before the election, one of his employees, Willie Ward, told him she was upset that the bonus was cut and "Karcher had used it to go overseas and buy new equipment." He also heard Ward making such statement to other employees. Within a day or two, Harkey reported such information to Vice President Raymond Cardwell. Cardwell merely said, "it's one of those things." Harkey is credited against Cardwell's denial. Karcher testified he first acquired the knowledge, that such a statement was being made concerning his trip to Europe, when he was so informed by Traffic Manager Jerry Cardwell on April 9, shortly following the election held that day. Jerry Cardwell testified he learned about it for the first time when he overheard remarks by employees in the lunchroom that this was the reason the Union won the election. He immediately notified Karcher. Karcher testified that he is presently chairman of the board, president, and general manager of the corporation. By direct and beneficial ownership, he controls 75 percent of the stock. The purpose of the incorporation in 1966 was to give employees an opportunity to participate in the ownership of the Company. Previously there existed a partnership consisting of himself and his two sisters. Conclusion The bonus cut was widely discussed by employees at the plant and at union meetings. The remarks reflecting upon Karcher's trip circulated and were common currency among employees before the advent of the Union. The statements to employees on this subject emanating from Union Agent Brown occurred on and subsequent to February 2. In the weeks before the scheduled election on April 9, similar statements were being made by employees within the specific awareness of at least one supervisor and a vice president. On its face, without clarification, the attribution of the bonus difference to the use of Karcher carried a certain ad hominem implication. With full respect for the opinion of the court concerned with the question of providing a formal hearing on prima facie issues of fact, I consider the litigated record as having illumined the meaning of the remarks in question regarding the Karcher sojourn. Karcher had been and, after incorporation, essentially continued in the eyes of the employees to be "the Company." The severe bonus reduction was apparent- ly difficult for the employees to accept understandably, particularly as the amount of the bonus was linked to the profit picture, and Respondent, for its own good reasons, did not attempt to show the employees the precise profit 27 Reed fixed the meeting on February 2; Hoover and Mons placed it about 3 weeks before the election; and Andrews, confused on cross- examination, stated it was at "the Rose City" but after the election. 28 Andrews was not sure it was Brown. 29 Brown did not recall whether the subject was discussed with Metcalf and denied that it was discussed with Whisnant. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD figures for the year. It is a realistic recognition that employees sometimes remark about the apparent luxuries of their employer as having been unfairly derived from the employees' work efforts. Here, the described statements by employees, qualifiedly reiterated by Brown, could reason- ably be construed in a similar vein. The Karcher trip took place before the fiscal year end and knowledge of the profits, and preceded by 3 to 4 months the bonus announcement. In my view, the known context can scarcely be likened to that, for example, of a trustee accused of embezzling funds. The indignant language of the allegation, i.e., misappropriating funds for personal enjoyment, is plainly overdrawn. In this record, Respon- dent did not, in argument or evidence, purport to show the nature of the response it would have made to employees before the election. If concerned with the ad hominem innuendo, it seems to me that all Karcher could have done was,, publicize a denial, which would have served little to counter the employees' real resentment relating to the fact of the bonus cut. In all the circumstances of this issue, as now clarified, I reach the conclusion that Respondent's Objection VI should be overruled. I find, against the entire background, that Brown's, statements pertaining to Karcher and the bonus were not unknown to the employees, and were not so misleading, or beyond the employees' own ability to evaluate, as to materially affect their free choice in the election. Furthermore, the facts are that Respondent, through its supervisors, had essential knowledge of the statements in question over a substantial period preceding the election, that it did attempt to explain the bonus cut by its letter and its posting on the bulletin board, and to the extent it desired to answer the ad hominem implication against Karcher, it had ample opportunity to do so before the election. RECOMMENDATION It is accordingly recommended that the Board reaffirm its previous findings that the Union was properly certified and that Respondent's refusal to bargain with the Union violated Section 8(a)(5) of the Act.