Henderson Trumbull Supply Corp.

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henderson Trumbull Supply Corporation and Team- orders that the Respondent, Henderson Trumbull sters Local 191 , affiliated with the International Supply Corporation, Trumbull, Connecticut, its offi- Brotherhood of Teamsters, Chauffeurs, Warehouse- cers, agents, successors, and assigns shall take the.ac- men and Helpers of America . Cases 2-CA-12796 tion in the said recommended Order as set forth in and 2-RC-15878 our prior Decision and Order, 205 NLRB 245 (1973). September 11, 1975 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On August 6, 1973, the National Labor Relations Board issued its Decision and Order' in the above- entitled proceeding, finding that Respondent has en- gaged in and was engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act and ordering that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit and honor and abide by any collec- tive-bargaining agreement executed by the Union and Respondent. On July 23, 1974, the United States Court of Ap- peals for the Second Circuit set aside the Board's Order and remanded the proceeding to the Board for further consideration of the entire matter with the instruction that Respondent be given a hearing on certain of its objections to the election? Pursuant to the aforesaid order of remand, a hear- ing was held before an Administrative Law Judge where all parties appeared and were afforded full op- portunity to present evidence, and to examine and cross-examine witnesses. On March 26, 1975, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommendations.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby 205 NLRB 245 (1973). Z 501 F.2d 1224 (C.A. 2, 1974). 3In adopting the Administrative Law Judge' s Decision on Remand, we do so because we accept the court's opinion as the law of this case and particularly as to the consideration of subjective reactions of employees to the statements in issue . The Administrative Law Judge has considered the factors set forth by the court in its remand as being determinative and has made his findings based substantially on credibility resolutions which are supported by the record. DECISION ON REMAND STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: Pur- suant to a Stipulation for Certification Upon Consent Elec- tion, an election by secret ballot was conducted by the Regional Director for Region 2 of the National Labor Re- lations Board on June 14, 1972, in Case 2-RC-15878 among the employees of the Respondent in an appropriate unit. At the conclusion of this election, the parties were furnished with a tally of ballots which showed that, of ap- proximately 15 eligible voters, 13 cast ballots of which 7 were for, and 6 against, the Union. None were challenged. Thereafter, the Respondent-Employer filed timely objec- tions to conduct affecting the results of the election. Pur- suant to these objections, the Acting Regional Director for Region 2 of the Board conducted an investigation and on August 1, 1972, issued a report on objections recom- mending that the Board overrule such objections and issue a certification of representatives. On August 14, 1972, the Respondent-Employer filed timely exceptions to the afore- said report requesting that the Board reject the report on objections and that said election held on June 14, 1972, be set aside and a new election be conducted or, in the atler- native, that the Board direct a postelection hearing for the purpose of taking evidence to determine substantial and material issues of fact involved and resolve certain incon- sistent and unclear statements and evidence referred to in said report on objections. On October 31, 1972, the Board issued its decision overruling the Employer's exceptions and certifying the Union as the exclusive representative of the employees for the purposes of collective bargaining. Thereafter, upon a charge filed by the Union on Novem- ber 15, 1972, the aforesaid Regional Director issued his complaint in the instant proceeding dated December 14, 1972, against the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. The said complaint alleges, in substance, that despite the Board's certification of the Union as the collective-bargaining representative of the Respondent's employees in the appropriate unit, the Respondent had refused and continued to refuse to bar- 220 NLRB No. 42 HENDERSON TRUMBULL SUPPLY CORPORATION gain with the Union despite the Union's request for bar- gaining. The Respondent's answer to the foregoing com- plaint denied in part and admitted in part the allegations in the complaint. On February 22, 1973, counsel for the Gen- eral Counsel filed directly with the Board a motion for summary judgment. Accordingly, the entire matter was or- dered transferred to the Board and a notice to show cause why the General Counsel's motion for summary judgment should not be granted was served upon the Respondent. Respondent thereafter filed a response to the said notice to show cause. In substance, the Respondent's answer to the complaint and the response to the notice to show cause allege that the Union had not been legally or properly designated or se- lected by the Respondent's employees and that the certifi- cate theretofore issued by the Regional Director was inval- id because, in essence, the objections to conduct affecting the result of the election filed by the Respondent in the representation case had merit, and that, among other things, the Respondent was entitled to a hearing on the said objections. Thereafter, on August 6, 1973 , the Board issued its Deci- sion upon the complaint , answer, notice to show cause, and response thereto 1 and ordered that the Respondent bar- gain in good faith with the Union. Thereafter, the Respondent filed with the United States Court of Appeals for the Second Circuit a petition for re- view of the Board's Order, requesting that the Order be set aside . The General Counsel filed on answer and cross-peti- tion to enforce the Board's order to bargain. On July 23, 1974, the court of appeals handed down its opinion and order setting aside the Board's order and remanding the case to the Board for further proceeding with the instruc- tion that the Respondent be given a hearing on the objec- tions to the election held in the representation proceeding.2 Pursuant to the aforesaid order of remand, the Board, on November 5, 1974, issued its order reopening the proceed- ing and remanding it to the Regional Director for Region 2 for a full hearing on the objections before a Trial Examiner and for such further proceedings as are appropriate in con- formity with the court's remand . Thereafter, pursuant to the Board's order of remand , the Regional Director for Region 2 on November 13, 1974, issued his order re- opening and consolidating Cases 2-RC-15878 and 2- CA-12796 and issued a notice of hearing to be conducted before an Administrative Law Judge at which time the par- ties would have a right to appear in person and give testi- mony in accordance with the order of the Board. Pursuant to the aforesaid order of reopening , consolidat- ing and the notice of hearing, a hearing was held before me at New York, New York, on January 15, 1975, in which all parties appeared and were afforded full opportunity to pre- sent evidence on the subject matter of the remand , examine and cross-examine witnesses, present oral argument, and file briefs. Short oral argument was made by the Respon- dent and the Charging Party . A brief was thereafter timely filed by the Respondent. Upon the entire record in this case , including the court's ' 205 NLRB 245 (1973). 2 Henderson Trumbull Supply Corporation v N L R B.. 501 F.2d 1224. 211 opinion and order, the Board's Decision and Order and subsequent order reopening the record , and the record in both cases, the evidence adduced at the hearing before me, the brief submitted by the Respondent, and the oral argu- ment made at the hearing, and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE ISSUES INVOLVED As noted above, the remand ordered by the court of appeals involves the merits of the Respondent's objections to the conduct affecting the results of the election conduct- ed by the Board on June 14, 1972. The objections relate to the contents of an alleged statement made by Anthony Rossetti, the union business agent, at a meeting held with some of the Respondent's employees who later voted in the election, which meeting was held on the night of June 12, 1972. At that meeting, Rossetti, in response to a general inquiry as to how much money and what fringe benefits the employees would receive if the Union prevailed in the election, allegedly stated that the Company made over $1 million, and, according to two witnesses, Rossetti allegedly specifically mentioned "1.2" or "1.3" million during the year 1971. According to the Respondent, Rossetti's statement that the Respondent "made 1.3 million," meant to the employ- ees that the word "made" was the equivalent of "profit." Respondent further contends that the evidence shows that there is a significant enough disparity between the alleged 1.3 million and the actual profits made by the Respondent to constitute a material misrepresentation of fact. The Re- spondent also contends that the employees could have be- lieved that Rossetti made the statement from his own knowledge of the facts instead of believing that he was merely expressing an offhand opinion in the nature of cam- paign propaganda. The Respondent further maintains that the employees were not competent to appraise the business agent's alleged misrepresentation from their own personal knowledge of the Employer's profit from its operation. Fi- nally, the Respondent contends that the Employer did not have an adequate opportunity to reply to the Union's state- ment inasmuch as the statement was made on the night of June 12, 1972, after business hours at the union hall; Respondent's vice president, Fred Salvati, was the first member of Respondent's management to learn of the al- leged statement and this knowledge was acquired by Salva- ti on June 15, 1972, the day after the election. The Union, on the other hand, contends that the dispari- ty, if any, between any statement made by its business agent, Rossetti, and the actual profit made by the Respon- dent is not great enough to be material. Moreover, al- though the counsel for the General Counsel did not argue or submit brief, nevertheless it is assumed that along with the Union counsel for the General Counsel would also contend that the impact of the statement made by Rossetti was so negligible as to be de minimis and that, therefore, any statement made by Rossetti at the meeting of June 12 was insufficient in impact to have affected the results of the election. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE TESTIMONY AT THE HEARING Salvati had to admit that the same was not contained in the affidavit and that he had not told this to the Board's inves- tigator. There were further inconsistencies between Salvati's testimony on the stand and the investigatory affi- davit above referred to. Although it is possibly arguable that over 3 years have elapsed since the events originally occurred, nevertheless, where Salvati's testimony on direct examination differs from the investigatory affidavit or where his said direct testimony contains matter not con- tained in the said affidavit, I do not credit the matter to which he testified which was not contained in the said affi- davit. This is so because I have grave doubts as to the reliability of Salvati's statement on the witness stand that his recollection as to the events which occurred close to 3 years ago was sharper on the day he testified than it was at the time he gave the affidavit to the Board's investigator only days after the alleged events occurred. The second witness produced by the Respondent was Frank Cataldo. As noted above, he was the first employee questioned by Salvati with regard to what occurred at the meeting on the night of June 12. Cataldo was able to testify without prompting or assistance only to the effect that he attended the meeting, that it was held in a very nice room, and that Anthony Rossetti mentioned something about money and that the business was doing well and could use a union. Cataldo remembered that a figure was given by Rossetti but could not remember what that figure was. Af- ter being shown the investigatory affidavit taken by the Board's investigator in conjunction with the objections to the election, Cataldo stated that the reading of this state- ment did not refresh his recollection as to the exact amount. However, Cataldo testified that it was a lot of money and "I know he's not making that," apparently re- ferring to the Respondent. Upon motion of Respondent's counsel, Cataldo's affida- vit was admitted in evidence as past recollection recorded. This affidavit was the same affidavit that the Regional Di- rector considered, among others, in coming to his original conclusion that the objections to the election were without merit. To summarize, Cataldo's affidavit stated that he at- tended the meeting which lasted about 50 minutes, that someone, not Rossetti, mentioned Salvati's house and that Rossetti told the gathered employees that it was their mon- ey that built this house and that they were "getting screwed" by the Company. Rossetti, according to the affi- davit, told the assembled employees that the Company made "1.3 million dollars last year." However, Rossetti did not read this figure from any paper. Cataldo further stated in his affidavit that this surprised him and the other men and that "we must be getting screwed.".Significantly, how- ever, the last statement in the affidavit states that sometime around the week of June 22, 1972, Salvati approached Ca- taldo and told him that he needed "three guys to say that the Union sort of forced us to vote for it. This was not the case. I voted for the Union because I wanted it, even be- fore Rossetti made the statement about the money." . The third witness produced by the Respondent was Peter Garrick, a former truckdriver. According to Garrick, on the night of June 12, at the meeting at the union hall, Ros- setti entered the room where the men had been discussing The first witness to testify for the Respondent was Fred Salvati, vice president of the Respondent. Salvati testified that on Thursday, June 15, an employee, Joe Ballester, told Salvati words to the effect, "I guess you heard what the Union told our boys as far as the amount of money our company made." Ballester had not attended the meeting at which the alleged statement was made. Salvati, not know- ing what was said at the meeting, approached employee Gerald Cataldo, a truckdriver, the following night, June 16, when Cataldo came back from a delivery. Cataldo had at- tended the meeting at which the alleged remarks were made and Salvati asked if Cataldo heard a comment about how much money the Respondent made. Cataldo, accord- ing to Salvati, then told the latter that Rossetti, the Union's business agent, told the eight assembled employees at the meeting that the Respondent "made 1.3 million." Accord- ing to Salvati he then asked whether the statement was $1.3 million in sales or profit. Cataldo answered that it was in profit. Salvati then being astounded by the figure asked Cataldo if the latter realized how much business the Re- spondent would have to do in order to realize 1.3 million in profits. According to Salvati, Cataldo merely shrugged and said that the men were also told at the same time that that was how Salvati got his new big house, because the Re- spondent was making a lot of money. The following Mon- day, Salvati took Cataldo to Respondent's counsel's office where Cataldo told Respondent's counsel that Rossetti made the statement that the Company made $1.3 million and that Salvati's home was worth $75,000 or $80,000. Respondent's counsel then asked Cataldo what effect the .statements had on the men. Cataldo told Respondent's counsel that the men thought they had been "shafted." Thereafter, according to Salvati at a later date, similar in- formation was obtained by Salvati from Steve Atkins and Peter Garrick. On cross-examination, however, upon being confronted with the affidavit which he signed and swore to before the Board's investigator during the investigation of the origi- nally filed objections to the election, Salvati ultimately stat- ed that it was not Cataldo who stated that the money for his new house was taken from the profits of the business but that it was Salvati, himself, who "believed" that it was indicated by the union business agent that the house was paid for by money Salvati was taking from the Company. Although Salvati then testified that Cataldo stated that the house was built from profits not on the night that Salyati first questioned him but at the Respondent's counsel's of- fice on the following Monday, however, Salvati admitted that he did not tell this to the Board's investigator and it is not contained in Salvati's affidavit. Additionally, in his direct testimony regarding his con- versation with employee Steve Atkins, Salvati testified that he asked Atkins if the latter realized how much business the Company would have to do in order to realize $1.3 million in profits and that he told Atkins that the latter was a college student and should realize that this was impossi- ble. However, again, when confronted with the investigato- ry affidavit which he made very shortly after the event, HENDERSON TRUMBULL SUPPLY CORPORATION 213 the possible benefits that could be derived from unioniza- tion, opened his briefcase and looked around. The men asked about the wages that they were going to receive and Rossetti said that the men would probably be receiving an increase. (Evidently if the Union were to win the election.) They were all wondering how much of a raise and Rossetti said something about "Henderson made a million dollars." Garrick's reaction was one of being overjoyed after first being shocked that the Respondent had made so much money. In other respects, Garrick's testimony was vague and his recollection of the rest of statements made by Ros- setti, if any, was not good. Accordingly, the Respondent used the statement given by Garrick to the Board's investi- gator at the time of the investigation of the objections to the election to refresh Garrick's recollection. This state- ment was unsigned. However, upon questioning by coun- sel, Garrick admitted that the statement was true at the time it was drawn up that he had read it over and that he had not wished to sign it. However, Garrick admitted on cross-examination that the statement refreshed his recollection as to his thinking in June 1972. Upon questioning on cross-examination he ad- mitted that his present recollection was as in his aforesaid statement, that during the meeting Rossetti said something about the Company making a million dollars last year, but that Garrick could not remember exactly at that time nor at the time he testified what was said about Salvati's house. Nor could Garrick remember who brought up the subject of Salvati's house during the conversation. In the aforesaid statement Garrick stated that nothing was said at that meeting to change his mind about how he was going to vote in the election. Upon questioning by Respondent's counsel he stated and repeated what he had stated in the unsigned statement to the effect that he had already made up his mind and that was what he was going to do. He admitted that whatever was said at the meeting at the union hall that night was not going to change his mind. He was asked more specifically if the fact that there was a million dollars mentioned had caused him to change his mind one way or the other and Garrick answered that it did not. The foregoing, then, constitutes the significant portion of Garrick's testimony. With regard to the value of Salvati's house, it was stipu- lated at the hearing that at the time of the meeting on June 12 Salvati's home was worth approximately $70,000 but that there was a mortage thereon in the sum of $30,000. The final witness produced by the Respondent was Steve Atkins, who had worked for the Respondent as a part-time employee while attending college. Atkins remembered the meeting of June 12 and testified that it took place in a very impressive room at a long conference table and that the persons attending the meeting sat in high back leather chairs. He further testified that until Rossetti came into the room the employees assembled discussed among them- selves what a fair wage would be and whether they would be in better shape with or without the Union. Further testifying, Atkins stated that Rossetti came in with a briefcase and opened it. Then the employees wanted to know where the money would be coming from and "somehow a million dollars was tossed in the air." Atkins testified that he did not know at the time of his testimony who had said "million dollars." However, Atkins then testi- fied he questioned Rossetti about whether the million dol- lars was gross profits before taxes or after taxes. Atkins testified "he definitely made the point that it was before taxes and before the profit had been taken out. In other words it was gross profit of Henderson Trumbull for 1971." Rossetti was looking at some papers from his briefcase when he said this, according to Atkins. Atkins' reaction to the statement was that he felt that he had been neglected and had been used by the Respondent. Atkins also gave a statement to the Board investigator investigating the objections to the election but his state- ment, like that of Garrick, was unsigned. However, he testi- fied that the matter contained in the statement prepared from Atkins' answers to questions by the Board investiga- tor was the truth and contained "what was said at the meeting did not cause me to change my mind about how I was going to vote in the election." Atkins adopted the statement but for personal reasons refused to sign it. Atkins further testified that before the election, but after the meeting, he explained to Cataldo, Garrick, and an em- ployee named J. C. Anderson that Henderson Trumbull did not "make a million dollars profit" and that "it was like before the electric light bills and utilities were paid, before the taxes were paid and, you know, there were a lot of things that have to be considered that just wasn't profit." It should be noted that Garrick, Atkins, and Cataldo were all discharged within a very short period after the election in June 1972. Atkins admitted that the reason giv- en to him for his discharge was that he, among other em- ployees, had been guilty of theft and defrauding the Re- spondent. It should be noted that there was no admission of this by Atkins but that this was merely the reason given to him by the Respondent for his discharge. It should also be noted that Atkins was the most articulate and the best educated of the three former employees who testified. Introduced into evidence by Respondent were two fi- nancial statements made by the Respondent's certified public accountants. The first statement was for the fiscal year ending March 31, 1971. This statement showed sales for that year of $843,637. It showed a gross profit on sales of $260,371 and a net income after all expenses including Federal and state income taxes, salaries, etc., of $11,669. However, this statement, although covering the period for the year ending March 1, 1971, was not made available to the Respondent or anyone else until September 8, 1971, the date it was submitted to the Respondent by Respondent's certified public accountants. Additionally, it should further be noted in connection with all of the foregoing, that the Respondent, a retailer, stipulated in the consent election agreement that it had gross sales for the year preceding the said stipulation in excess of $500,000. A second annual statement covering the fiscal year end- ing March 31, 1972, showed gross sales of $973,903 and a net income after all else was deducted, including state and federal taxes, of $16,873. Also introduced into evidence by the Charging Party were two letters to the employees one dated June 5, 1972, the other dated June 7, 1972. The substance of these letters was that the Respondent was giving the employees many benefits which could not be increased by membership in 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union. The letters also stated that dues would be pay- able each and every month and that they could very well equal more than any benefit that could be derived from unionization. Discussion and Concluding Findings As stated by the court of appeals in its opinion leading to the remand in this proceeding, it is necessary in instances of the type presented here that a number of factors must be considered. Among these factors are (1) the materiality of the factual misrepresentation, (2) the influence that it might reasonably have had upon the employees, (3) the extent to which the declarant could reasonably be viewed by the employees as a person in a position to know the facts, (4) the opportunity for the other party to the election to reply, and (5) the ability of the employees to evaluate the statement on the basis of their own independent knowledge of the facts. The court of appeals in its remand decision held that, since Rossetti's statement to the employees was made vir- tually on the eve of election, there was virtually no oppor- tunity for the Respondent to reply. This is adopted as a factual finding by me. From all of the evidence presented it must be concluded that the Respondent did not learn of whatever statement Rossetti might have made to the em- ployees during the meeting of June 12 until 2 days after the election. Additionally, the court of appeals further found, and it is hereby adopted, that Rossetti could reasonably be viewed by the employees as a person in position to know the facts because, as found by the court, Rossetti was not merely expressing an opinion or making a guess , but was, as in most local unions, the business agent, who may be the only full-time union employee who "has the greatest power and most important functions in the local union, frequently more important than the Local's president who may be a mere figurehead." 4 The court further held that the func- tion of the business agent which is to organize and serve as liaison with management requires him to learn as much as possible about the financial condition of the employer with whom he negotiates on behalf of its employees. His posi- tion, coupled with his mention of a specific profit figure, could reasonably have led the employees to believe that he had ferreted out the information from financial books or records available to the Union through its banks or other sources, or from initial conferences with company officers. Under these circumstances, there remain but three fac- tors to be considered. The first factor would be that of the materiality of the misrepresentation . In order to make a judgment as to mate- riality it must first be determined what was said at the meeting by Rossetti. With regard to the actual statement that was made, the evidence given at the hearing supports the finding by the Regional Director in his report on objec- 3 N L.R.B. v. Cactus Drilling Corporation, 455 F.2d 871 (C.A. 5. 1972): tions, that Rossetti made a statement to the effect that the Respondent in the year preceding the election "made" ap- proximately $1 or $1.2 or $1.3 million. However, whether this had any impact on the employees is another entirely different question. A close examination of the testimony as set forth heretofore in this decision shows that the only three employees produced by the Re- spondent to testify as to such impact were not influenced by the statement as to the possibility that the Respondent "made" $1.3 million. All three employees, or, rather, for- mer employees, testified almost uniformly to the affect that what Rossetti stated at the meeting on the night of June 12, 1972, had no influence upon the way they voted in the election in that each had made up his mind prior thereto, and that what Rossetti stated had not caused any of them to change their respective minds. The Board has held, as well as the courts, that impact, or reasonable impact, upon employees may very well be the deciding factor in setting aside an election or not setting aside an election for misrepresentation by one of the par- ties. The Board has stated "But even where a misrepresen- tation is shown to have been substantial, the Board may still refuse to set aside the election if it finds upon consider- ation of all of the circumstances that the statement would not be likely to have had a real impact on the election. For example, the misrepresentation might have occurred in connection with an unimportant matter as that it could only have a de minimis affect. Or it could have been so extreme as to put the employees on notice of its lack of truth under the peculiar circumstances so that they could not reasonably have relied on the assertion. Or the Board may find that the employees possess independent knowl- edge with which to evaluate the statements." 5 While it is true that the word "made" might have been somewhat ambiguous with regard to the feelings or knowl- edge of the employees at the meeting of June 12, 1972, it is certain from the testimony offered by the Respondent at the hearing herein that none of the employees testified that Rossetti stated that the $1.3 million was profit. Additional- ly, former employee Atkins, whom I found to be most ar- ticulate and intelligent, realized immediately as the words were spoken that this figure could not have been profits. Accordingly, with regard to Atkins, although he testified that he felt somewhat taken aback and felt that he had been used by the Respondent, he nevertheless was able to discern from his own knowledge and ability and to make the judgment that the word "made" did necessarily mean profit and asked Rossetti whether the Respondent had made a profit of $1.3 million. Atkins credibly testified that Rossetti had answered in the negative, stating that this was before expenses, indicating that the sales were in the area of approximately $1 million. Thus, one employee attending the meeting was sufficiently knowledgeable to realize that the figure quoted by Rossetti, whether 1.3 million or I mil- lion, did not mean profit. Furthermore, Atkins testified without contradiction, and therefore credibly, that he later explained to Cataldo, Gar- N. L.R.B v Millard Metal Service Center, Inc., 472 F.2d 647 (C.A. I. 1973), 5 Hollywood Ceramics Company, Inc., 140 NLRB 221, 224 (1962). With Hollywood Ceramics Company, Inc., 140 NLRB 221 (1962) regard to the importance of impact see also N LR B v Bata Shoe Company, Quoting Kheel, I Labor Law, par. 3.03(2), p. 3-17 (Mathew Bender, 377 F.2d 821 (C.A. 4, 1967), Graphic Arts Finishing Co v. N.L R B. 380 1972). F.2d 893 (C A. 4, 1966). HENDERSON TRUMBULL SUPPLY CORPORATION rick, and another employee who had attended the meeting that the amount stated by Rossetti was not profit and that the figure quoted by Rossetti was before other operating expenses and other costs had been deducted. Thus, I find and conclude that, from the testimony of the employees, Rossetti did make a statement to the effect that the Re- spondent "made" somewhere in the neighborhood of $1 million during the preceding year. However, I further find that at least with regard to the employees who testified at the hearing herein and at least one other employee the word "made" did not mean "profit" after Atkins' explana- tion to them. It should also be noted that the Respondent's own finan- cial statement for the year ending March 1971 showed that the Respondent's sales had amounted to the figure of $843,637. This did not differ very greatly from the approxi- mate million dollar figure quoted by Rossetti. It could also have been what Rossetti meant when he stated "made." However, even without making these conjectures or at- tempting to guess from the evidence what Rossetti meant, it is clear that if four of the employees who voted knew before the election that the word "made" did not mean "profit," at least some of the other employees must have known the same inasmuch, as stated by Salvati in testify- ing, the Respondent is a small shop and matters get around and people know what is going on. Finally, since, as stated above, the impact upon the em- ployees is the key to whether an election should be set aside and since the only witnesses produced by the Re- spondent testified that the remarks made had no impact upon them with regard to the choice they made in the elec- tion, all of the foregoing becomes merely academic because the Respondent through its own witnesses has failed to prove and to show that the statement made by Rossetti had an impact on the employees. Having thus failed to show that the impact of the statement had an effect upon the employees and therefore an effect upon the election, I find and conclude that there was presented at the hearing insuf- ficient evidence to recommend any change in the recom- mendations made by the Regional Director in his report on objections, which recommendations were adopted by the Board in its order certifying the Union as the bargaining representative of the Respondent's employees. In coming to the foregoing conclusion I have not disre- garded the statement of the court that where an election is as close in its result as the one with which this proceeding is concerned, that even minor misconduct cannot be sum- marily excused on the ground that it could not have influ- enced the election . However, considering even the close- ness of the election here , the misconduct alleged to have been engaged in by Rossetti is not being summarily ex- cused on the ground that it could not have influenced the election because the record shows that it did not influence the election insofar as the only employees whom the Re- spondent called upon to testify stated that they were not so influenced . It would be wrongful to speculate that the em- ployees who did not testify were influenced by the state- ment especially in view of the fact that Atkins explained the matter to Cataldo, Garrick, and another employee and, furthermore, the employees who did testify testified that there was, in fact, no impact on them , as a result of 215 Rossetti's statement with regard to the amount made by the Respondent. Moreover, in coming to this conclusion, I have also con- sidered the fact that, as expounded by Respondent in its brief, much time has passed since the events and that at this point the recollection of the witnesses is somewhat clouded. However, the statements introduced by Respon- dent definitely show that, at least with regard to Cataldo and Atkins, in their interview with the investigator for the Board, shortly after the objections to conduct affecting the election were filed, they both stated, as did Garrick, that Rossetti's statement had no influence upon them . Accord- ingly, the passage of time did not in any way change the fact that these employees were not influenced by Rossetti's statement and, therefore, his statement did not have suffi- cient impact on the employees to warrant setting aside the election. By reason of the foregoing, I find that the Respondent has failed to sustain its burden that the alleged conduct of Rossetti affected the results of the election. Accordingly, I further find the Respondent has wrongfully failed to bar- gain with its employees' certified bargaining representative and that such failure to bargain upon request constitutes a violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW In view of the foregoing findings of fact, the conclusions of law heretofore made by the Board in its decision in Case 2-CA-12796, 205 NLRB 102 (1973), are hereby adopted in toto. ORDER Accordingly, in view of the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the Act, I hereby adopt the Order of the Board dated August 6, 1973, in toto, as the recommended order of this decision, and incorporate the same by reference herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and conditions of employment with Teamsters Local 191, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the exclusive representative of the employees in a bargain- ing unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to rates of pay, wages , hours, and other terms and conditions of employment , and, if an un- derstanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All regular full-time and part-time employees of the employer at its 2300 Reservior Avenue, Trumbull, Connecticut, location, including drivers, yardmen, forklift operators, millmen, store salesmen and stock clerks, but excluding all other employees, ex- ecutives, guards, watchmen, and supervisors as de- fined in the Act. HENDERSON TRUMBULL SUPPLY CORPORATION