Bomber Bait Co., Inc.

BOMBER BAIT CO., INC. 673 Bomber Bait Company, Inc. and Retail, Wholesale and Department Store Union, AFL-CIO. Case 16-CA-5210 May 20, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 13, 1973, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the Administrative Law Judge's rulings, findings, and conclusions, only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent violated Section 8(a)(1) of the Act by threaten- ing employee Jack Richardson, the principal protag- onist of the Union, that if it "came in" he would not benefit therefrom because "he would not be there long enough." For reasons given below, we find merit in Respondent's exception to this finding. Following the organizational campaign, which was commenced in May 19731 by Richardson and led in mid-June to the parties stipulating to a consent election,2 Respondent on July 20 called a meeting attended by its work force of 65 to 70 employees. Respondent President Van Calvin Ellis, the only speaker, made the following statements: There would be no promises or threats, and if the employees "went union" he would negotiate with it. The employees did not need a union because Respondent was doing everything for the employees that could be done. Production had been down for the past several months. When Ellis invited questions, employee Sandra King asked Ellis how the Union hurt Respondent. Ellis replied that production had dropped. King, who was sitting next to employee Judy Muller,3 whispered to the latter that Ellis did not answer her question "because he probably did not have an answer." Muller laughed and looked up at Richardson. Ellis thereupon came over to Richardson whom he accused of laughing at him. When Richardson repeatedly denied the accusation, Ellis made some remarks the exact nature of which are conceded by the Administrative Law Judge to be in dispute. According to Muller, Ellis told Richardson, "You needn't to [sic] laugh because if the union goes in it won't help you because you won't be here that long." 4 Muller also testified that Ellis then addressed the employees to the effect that they did not need a union and he did not see why the employees wanted one. Richardson testified as follows on cross-examina- tion by Respondent counsel: Ellis told him, "You won't benefit from it. I'll promise you that." 5 Ellis then turned toward the employees and said, "You don't need a union. You don't want a union." An additional exchange took place on further cross-examination: Q. And you heard every word he [Ellis] said, didn't you? A. Yes, sir. Q. And you have told us every word he said? A. Yes, sir, I told it just like it was. Q. And then he walked back to where he had been talking? A. Yes, sir. Q. You have told us every word he said, haven't you? A. Yes, sir, right there whenever he was talking to me. Q. Whenever he was talking to you? A. Yes, sir. Q. Well, did you hear him say anything else when he wasn't talking to you? A. Well, he said, "I'll repeat that you don't need a union. You don't want a union." Q. All right. Now, [counsel for the General Counsel] said in his opening address [at the hearing] that Mr. Ellis said to you, "You won't be here long enough to find out." Or, "You'll be the first to go." He didn't say that to you, did he? A. What I understood him to say was just exactly what I told you. Q. And you heard every word he said, didn't you? A. Yes, sir. The Administrative Law Judge credited the testi- mony of both Richardson and Muller. In so doing, he found (1) that, despite "some variance," their accounts were for the most part consistent, and (2) that sometimes a participant [Richardson] in an event may not be able to recall the event as accurately as an observer [Muller]. 1 All dates refer to 1973 unless otherwise indicated 4 Ellis and several other Respondent witnesses , who were not credited by 2 As indicated in the Administrative Law Judge's Decision, the record the Administrative Law Judge , denied that he made this statement. does not disclose why the election did not subsequently occur S This was denied by Respondent witnesses. 3 Richardson was seated behind them 210 NLRB No. 109 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In our judgment, Muller's uncorroborated testimo- ny as to the purported statement of Ellis-that Richardson "won't be there long enough" to benefit from the Union-does nbt provide an adequate basis for finding that Respondent engaged in unlawful conduct in violation of Section 8(a)(1) of the Act. Contrary to the Administrative Law Judge, the "variance" concerning the foregoing crucial state- ment is substantial as Richardson's version differs sharply from that of Muller. Thus, Richardson's replies during the course of intensive cross-examina- tion clearly reveal that he "heard every word" uttered by Ellis and that the latter did not make the statement attributed to him by Muller. In view of Richardson's explicit, unequivocal, and complete account of the July 20 encounter, we disavow the Administrative Law Judge's speculation that Rich- ardson may have been too involved as a participant to recall whether Ellis made a threat which cast doubt on the security of his job. However, even assuming arguendo that Ellis did make the statement in question, we are of the opinion, in the absence of any other indication of animus or evidence that the statement was heard by Richardson himself or any of the assembled employ- ees other than Muller, that it was too ambiguous as well as too isolated and minimal6 to warrant a finding that it violated the Act.7 Accordingly, we find that the General Counsel has failed to establish by a preponderance of the evidence that Respondent violated Section 8(a)(1) of the Act. We shall therefore order that the complaint be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 9 Walgreen Co, d/b/a Globe Shopping City, 203 NLRB No 36 , American Federation of Musicians, Local 76, AFL-CIO, 202 NLRB No. 80. 7 Member Fanning does not subscribe to these findings as the statement attributed to Ellis, if in fact it had been made , would have constituted a clear threat of discharge which goes to the heart of the Act and thus is too serious to be characterized as "minimal." Even if the threat is regarded as "isolated" in the absence of any other unlawful conduct, Member Fanning would accord no weight to that factor in view of the gravity of the threat DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: Upon an original charge filed July 5, 1973,1 by Retail, Wholesale and Department Store Union, AFL-CIO (herein the Union), against Bomber Bait Company (herein the Respondent or Company), the General Counsel of the National Labor Relations Board, through the Regional Director for Region 16, issued his complaint and notice of hearing dated August 16. The complaint alleges, in essence, that the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended (herein the Act), by threatening its employees with loss of benefits including loss of employment if they became or remained members of the Union or gave any assistance or support to it. By its duly filed answer, the Respondent denied the commission of any unfair labor practices. At the trial, which was held before me in Gainesville, Texas, on September 26, all parties were present and full opportunity was afforded them to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Subsequent to the hearing, helpful posthearing briefs were submitted by counsel for the General Counsel and by counsel for the Respondent, which have been duly considered . Upon the entire record, including arguments of counsel and my observation of the demeanor of the witnesses ,2 I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Texas corporation, is engaged in the manufacture of fish lures and accessories at its Gainesville, Texas, facility. During an annual period, Respondent, in the course and conduct of its business operations, purchased materials valued in excess of $50 ,000 which were shipped to its Gainesville facility from points outside the State of Texas. During the same period of time, Respondent sold and distributed fish lures and accessories valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from its Gainesville facility to points outside the State of Texas. Upon the foregoing facts, which were admitted by Respondent, I find that the Respondent is now, and has been at all times material , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that at all times material the Union has been a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The sole issue in this proceeding is whether, by certain conduct engaged in by Company President Van Ellis during a speech to employees on July 20, Respondent interfered with, restrained, and coerced employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. i All dates hereinafter refer to the calendar year 1973 unless otherwise 2 Cf Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161. indicated BOMBER BAIT CO., INC. 675 B. The Facts A union campaign commenced among the employees of Respondent in May, and it is undisputed that employee Jack Richardson was foremost in that campaign. It was he who made the original contact with the organizer of the Charging Union, met with him, secured union authoriza- tion cards, and solicited a substantial number of other employees. On the basis of the signed cards, the Union, on or about May 30, filed a petition seeking an election.3 Thereafter, about the middle of June, a meeting was held among representatives of the Company, the Union, and the NLRB, in which the parties stipulated to a consent election, and Richardson attended that meeting on behalf of the Union.4 On July 20, shortly before 4:30 p.m., the employees were notified by loudspeaker that there would be a meeting in the warehouse of all employees to commence at 4:30 p.m.5 The employees (approximately 65 to 70) gathered in the warehouse in a sort of semicircle, some sitting on boxes or chairs, and others standing in the back. Among the officials of the Company there were Van Ellis, the president, John Martin, the executive vice president, and its attorney, Allen Schoolfield, Jr. Ellis was the only speaker at the meeting, and he advised the employees that he had come in from Canada specifically to tell them his side of the story; that there would not be promises or threats and that if they "went union" he would negotiate with the Union; he advised them of the benefits which had occurred since he assumed control of the Company several years prior; he further advised that the employees did not need a union to represent them because the Company was doing everything for employees that could be done; finally, he advised the employees that production had been down for the past several months. About this point during the meeting, Ellis asked if there were any questions. Employee Sandra King asked, "How did the Union hurt Bomber Bait?" Ellis responded that production had drcpped since January, and turned away. King, who was sitting next to her sister-in-law, Judy Muller, whispered to the latter that Ellis did not answer her question. She further opined that "he didn't answer because he probably didn't have an answer," and grinned. Muller laughed and looked up at Jack Richardson, who was sitting behind them, and he grinned.6 At that point, Ellis came over to where Richardson was sitting and accused him of laughing at Ellis. Richardson denied the accusation, and Ellis repeated it. Richardson again denied it and stated that he was not laughing at Ellis but "at those ladies." At this point, Ellis uttered some remarks, the exact nature of which are in serious dispute. According to Richardson, Ellis stated, "Well, you won't benefit from it. I'll promise you that. I'll repeat that you don't need a union. You don't want a union." Muller, a witness for the General Counsel, testified that in addition to Ellis' statement to Richardson that he would not benefit from a union, further stated that it would not help him "because you won't be here long enough." 3 Case 16-RC-6327 4 The election, although scheduled, has never been held for reasons not fully disclosed by the record However, such reasons are not, in any event, relevant to the issue in this proceeding The version given by three witnesses (aside from Ellis) for Respondent was in substantial variance from that of the two witnesses for the General Counsel. They (the plant manager, a foreman, and an employee) were unanimous in testifying that Ellis only told Richardson that it was not funny because "it (the Union) would hurt Richardson as much as anybody." Ellis described the incident as follows: A. Well this meeting took place in the warehouse, as each employee has been describing. Well, now, each employee has been describing different deals. It was a hard meeting to handle. There were 65 to 70 employees. It was hard to get their attention and hold their attention. Now, I roam quite a bit, Your Honor. I believe you asked this. Well, anyway, I had to move around to see everyone, and, like I say, try to hold their attention. Well, as I was coming back from what, as LeRoy calls it, the east part and walking this way and I caught the gentleman laughing. I then walked over to him, and I did, I am sure, point my finger at him. I told him, I said, "This is not a damn bit funny. This is a serious, serious matter." I remember saying that, just to to the exact T. Now, whether I said exactly, "This will hurt you as much as anyone else," well, that I won't swear to. I know, though, that I did point my finger and say, "This is not a laughing matter. This is not funny. This is a serious meeting." Q. (by Mr. Schoolfield) What did Mr. Richardson say? A. Well, I told him that he was laughing, like I say, and I didn't see anything funny about it. Then he said, "Van, I am not laughing at you." I said, "You are laughing." Then I said, "It is not funny. It is not a laughing matter." I did not threaten him in any way whatsoever. Q. All right. Now, you heard the testimony of Mr. Richardson to the effect that "Don't think this is going to benefit you any. I promise you that." A. Yes, sir. Q. Did you say that to him? A. No, sir, I did not. Q. Now, you heard the testimony of Mrs. Muller to 5 Quitting time for the employees was 5 p.m 6 Credited testimony of Muller . King was in the hospital at the time of the hearing, and did not testify. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the effect that, "If this goes union it won't help you because you won't be here long enough" A. Yes, sir. Q. Did you make that statement to Mr. Richard- son? A. No, sir, I did not. Following the colloquy between Ellis and Richardson, Ellis returned to the area where he was making the speech, spoke a few minutes more to all employees, and the meeting came to an end. Analysis and Concluding Findings As is recognized by all parties, resolution of the issue in this case rests almost wholly upon a determination of the credibility of the witnesses. This task of a fact finder is almost always difficult and delicate, and is certainly not rendered less so by the circumstances of this case. In making such resolution I have, of course, considered the demeanor of the witnesses "along with the consistency and inherent probability of testimony," 7 plus their interest in the outcome of the proceedings. Finally, I have, consistent with Board precedent,8 considered as a factor supporting their credibility, the fact that the two witnesses who testified on behalf of the General Counsel were current employees testifying adversely to the interest of Respon- dent. Further, in making the credibility assessment, I note that all of the witnesses for the Respondent (aside from Ellis) attributed to Ellis language which was almost verbatim, yet could remember little else about the nature of the incident. Interestingly enough, Ellis conceded that when he saw Richardson laughing, "it upset me no end," and that he could not "swear to" the statement attributed to him by Respondent's other witnesses. Ellis impressed me as an excitable individual who, while making his speech, no doubt adhered to the advice given him not to make threats or promise benefits, but who, when excited, might well have exceeded such bounds in a moment of exuberance. As the court said in Hendrix Manufacturing Co., v. N.LR.B.,9 "it is what he [the employer's agent] said or did, not what he was told to say, do, or not say or do, that counts." Accordingly, for the reasons set forth above, I credit the testimony of Richardson and Muller as to what Ellis said during the incident in question. In so doing, I recognize that there is some variance in their testimony as to what Ellis stated. However, it does not necessarily follow that one must be discredited in favor of the other since their testimony is, for the most part, consistent. Moreover, it is commonplace that one person may truthfully recall more or less than another about the events that took place. I have also considered that sometimes participants in any event may not be able to recall the event as accurately as an observer. Finally, I may say that both witnesses impressed me favorably with their direct and forthright responses to questions under vigorous cross-examination by counsel for the Respondent. Under all circumstances, therefore, I find that, on the occasion in question, Ellis threatened Richardson with the remark that if the Union came in he (Richardson) would not benefit from it because he would not be there long enough. I conclude that such remark, made within the hearing of many employees, in the context of an antiunion speech, constituted interfer- ence, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: Conclusions of Law 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees with reprisals should they engage in activities on behalf of the Union, Respon- dent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby engaging in unfair labor practices proscribed by Section 8(axl) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Remedy Having found that the Respondent engaged in unfair labor practices, it will be recommended that it be required to cease and desist therefrom and take certain affirmative action found necessary to effectuate the policies of the Act. [Recommended Order omitted from publication.] 4 Universal Camera Corporation v N L R.B., 340 U S. 474. Envelope Co., 147 NLRB 1030, 1036. 8 See Georgia Rug Mill, 131 NLRB 1304, 1305, In 2, enfd as modified, 9 321 F.2d 100, 104 (C.A. 5, 1%3). 308 F.2d 89 (C.A 5, 1962), Astrosystems, Inc, 203 NLRB No. 16. Federal