Tennessee Plastics, Inc.

TENNESSEE PLASTICS, INC. 315 Tennessee Plastics, Inc. and Sheet Metal Workers' International Association Local Union No. 464. Case 10-CA-9854 December 5, 1974 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 19, 1973, the National Labor Relations Board issued its Decision and Order' in the above- entitled proceeding, finding that Respondent had 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 Sheet Metal Workers' International Association Local Union No. 464' as the exclusive bargaining representative of all employees in the appropriate unit. Enforcement of the Board's order was denied on February 13, 1974, by the United States Court of Appeals for the Sixth Circuit.' The court found that Respondent had never been given the opportunity to present evidence at a Board hearing and therefore ordered that the Board's application for en- forcement of its order be denied, its order and the order approving and adopting the Regional Director's report be vacated,' and the case be remanded to the Board "with directions that the company[Respondent] be af- forded a full adversary hearing upon its exceptions to the Regional Director's Report." Thereafter, the Board issued an order remanding the proceeding to the Re- gional Director, and directing that a hearing be held before an Administrative Law Judge, who should pre- pare and serve on the parties at the conclusion of the i 202 NLRB 462 2 Herein the Union 3 NL R B v Tennessee Plastics, Inc, 489 F 2d 734 (C A 6, 1974) 4 Pursuant to a Stipulation for Certification Upon Consent Election issued on May 16, 1972, an election by secret ballot was conducted on May 26, 1972 There were 299 ballots cast for the Union and 212 ballots cast against the Union, with 31 challenged ballots Thereafter, Respondent filed timely objections to the election The Regional Director issued his report on July 12, 1972, overruling the objections in their entirety and recommending that the Board certify the Union as the exclusive bargaining agent Thereafter, Respondent filed exceptions to the report On October 5, 1972, the Board issued its Decision and Certification of Representative in Case 10-RC-9176 adopting the findings, conclusions, and recommendations of the Regional Director and certifying the Union Pursuant to charges filed by the Union on November 8, 1972, the General Counsel issued a complaint on November 22, 1972, alleging that Respondent violated Section 8(a)(5) and (1) of the Act Respondent, in its answer, admitted that it refused to bargain with the Union, but denied that the Union was the appropriate representative because the results of the election were "not dispositive of the wishes of the majority of the employees in the voting unit " The General Counsel filed a Motion for Summary Judgment and the proceeding was transferred to the Board In its response thereto, Respondent contended that General Counsel's motion would deprive it of an opportunity to present evidence and be heard On March 19, 1973, the Board issued its Decision and Order granting the General Counsel's Motion for Summary Judgment and finding that Respondent had violated the Act hearing a decision containing findings of fact, conclu- sions of law, and recommendations. Following a hearing held on May 21 and 22, 1974, at which all parties were represented, Administrative Law Judge Almira A. Stevenson issued her attached Decision on June 28, 1974, recommending that Re- spondent's objections to the election be overruled, and that the Board's certification of the Union, its conclu- sion that Respondent violated Section 8(a)(5) and (1) of the Act, and its order that Respondent bargain upon request be affirmed. Thereafter, Respondent filed ex- ceptions to the Decision of the Administrative Law Judge and a supporting brief, and the Union filed a brief in answer to Respondent's exceptions. 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 Ad- ministrative Law Judge's Decision in light of the excep- tions and briefs, and has decided to affirm the Adminis- trative Law Judge's rulings, findings,' conclusions, and recommendations. 5 In the absence of specific exceptions , we adopt proforma the Adminis- trative Law Judge's recommendation that Respondent 's Objections 2 and 5 be overruled ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby overrules the objections to the election; reaffirms the certification of Sheet Metal Workers' In- ternational Association Local Union No. 464 as the representative of the employees in the appropriate unit, and the finding that P espondent violated Section 8(a)(5) and (1) when it refused to bargain therewith; and orders that Respondent take the action set forth in the order previously issued herein on March 19, 1973. DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: Pursuant to a remand by the United States Court of Appeals for the Sixth Circuit dated January 3, 1974,' and an imple- menting order by the National Labor Relations Board dated March 6, 1974, a full adversary hearing was held March 21 and 22, 1974, at Johnson City, Tennessee, upon the Respon- dent's exceptions to the Regional Director's Report on Objec- tions to the election which had been conducted in Case 10-RC-9176 on May 26, 1972. All parties were afforded full opportunity to call witnesses and introduce evidence. Briefs have been filed by the Respondent and the Union. The pre- sent Administrative Law Judge has had no previous connec- tion with the case. i 489 F 2d 734 215 NLRB No. 52 316 DECISIONS OF NATIONAL LABOR KELATIONS BOARD The Union filed the petition in Case 10-RC-9176 On May 1, 1972. On May 26, 1972, the election was held, and the Union won 299 to 212, with 31 enallenged ballots and 2 void ballots which were not determinative. The Respondent filed objections to the election, which were overruled by the Re- gional Director without a hearing. The Respondent filed ex- ceptions to the Regional Director's report in which it con- tended that its objections should not have been overruled by the Regional Director and, alternatively, requested a hearing on the issues raised therein On October 5, 1972, the Board adopted the Regional Director' s report and certified the Union in the unit found appropriate . The Respondend re- fused to bargain and, in Case 10-CA-9854, the Board found that the Respondent had thereby violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, and ordered the Respondent to cease and desist therefrom and to, inter alia, bargain , upon request, with the Union The court of appeals denied enforcement of the Board's order, vacated said order and the Board's order approving and adopting the Regional Director 's report, and remanded the case to the Board with directions that the Company be afforded a full adversary hearing upon its exceptions to the Regional Director's report either before the Board itself or a hearing officer. The Board thereupon ordered that a hearing be held before an Administrative Law Judge to be designated for the purpose of taking evidence in accordance with the court's remand, and that, upon the conclusion of such hear- ing, the Administrative Law Judge prepare and serve upon the parties a decision containing findings of fact based upon the evidence received, conclusions of law, and recommenda- tions. Upon the basis of the court's opinion, which is the law of the case, the briefs , the evidence received at the hearing, and my observation of the demeanor of the witnesses , I make the following: Objection 1. Union observors talked with eligible voters during the election in the polling area thereby influenc- ing the employees and depriving them of their freedom of choice. In support of this objection, the Respondent presented the testimony of Mamie Stanton, an employee who served as company observer during the voting of first-shift employees of plant 1 Stanton testified that observers were instructed not to speak to the voters, but to watch them after they received their ballots to see that there was only one voter in the voting booth at a time and that they put their marked ballots in the ballot box Stanton testified that during the election she heard one of the union observers, Nora Hardin , laugh, and then heard the Board agent say, "no laughing." As the laughing continued, Stanton heard the Board agent say sternly, "straight face." This "tickled" Stanton, but she covered her mouth with her hand so no one could see that she herself was laughing. Employees from two departments were lined up to vote and Stanton was watching the voting booths and there- fore was not looking at Hardin at this time . Stanton testified that she did not hear Hardin say anything to any voter. I credit this testimony rather than that of Nora Hardin, who denied laughing during the voting . Although the memo- ries of all witnesses have faded as to some of the things that happened now so long ago, I believe Stanton stuck to the truth about what she did remember , whereas Hardin's confu- sion and inconsistencies on cross-examination created the impression she had reconstructed events to what she consid- ered her own best advantage. Objection 3. Threats of physical violence to persons made by union representatives, its agents and/or em- ployees within the voting unit directed to eligible voters in the event that they did not vote for the union inter- fered with the freedom of choice of employees within the voting unit. FINDINGS OF FACT The Respondent operates three plants in Johnson City, Ter Lessee. Employees of all three plants are included in the appropriate unit . No issue is presented regarding alleged in- terference at plants 2 or 3, or to the knowledge of the eligible voters employed at those plants. The issues are confined solely to plant 1, which employs 60 percent of the total com- plement. Seventy percent of them work on the first shift, and they voted between 12:30 and 2 p.m.; 30 percent of the plant 1 employees work on the second shift, and they voted r -tween 5 and 5:30 p.m. The Respondent's exceptions placed in issue the following objections, which were fully litigated before me:' 2 The Respondent's exceptions to the Regional Director's report on objec- tions did not take issue with the Regional Director's finding that the follow- ing objections were without merit Objection 2 Threats of economic reprisals made by union representa- tives, its agents and/or employees within the voting unit directed to eligible voters in the event that they did not vote for the union inter- fered with the freedom of choice of employees within the voting unit The factual issues presented by the exception to this objec- tion are (1) whether or not employee Evelyn Reece told em- ployee Norma Dye, on the morning of election day, that everyone who voted against the Union would have their hair cut off, or words to that effect; (2) the extent to which knowl- edge of such an incident and Reece's immediate discharge for it became known to voters before the election ; and (3) whether Reece was an agent of the Union or was clothed by the Union with the appearance of agency in the eyes of the employees. (1) For 30 minutes or so before the 7 a.m. start of the first shift on the day of the election , Evelyn Reece, along with two other women employees , Nora Hardin and Fannie Nelson, several men employees , and International Organizer Bill J. Reinhard and other organizers, lined up along the road lead- Objection 5 By these and other acts, the employees were deprived of an opportunity to cast a free and untrammeled ballot in the election In these circumstances , and as no evidence was presented at the hearing in support of these objections , it is recommended that Objections 2 and 5 be overruled TENNESSEE PLASTICS, INC. ing to plant 1 and passed out prounion literature to employees driving to work. Employee Norma Dye testified that as she drove along the road leading to the plant that morning, a red-haired lady whom she later learned was Reece said to her as Reece handed her a pamphlet through the car window, "that if I or anyone else didn't vote for the Union, that we would get our hair cut off." Dye and Mamie Stanton testified that as soon as Dye reached her work station she told Stanton about this incident. Dye had been sick recently and shortly began to feel bad again. Accompanied by the plant nurse, she went along to the first aid room to lie down for a while. Meanwhile, Stanton testified, she passed Dye's statement along to Person- nel Manager Bob Carter. Leon Baker, manager of all three plants, testified Carter told him at about 9 a.m. Picking up Plant I Superintendent Bob Rose on the way, Baker pro- ceeded to the first aid room. Dye and Baker testified similarly that Baker asked her whether she had been threatened and that, after first denying it, Dye repeated what she had told Stanton. At Baker's request, Dye signed a written statement to the following effect: While coming to work on 5/26/72 Norma Jean Dye was told by Evelyn Reece that if she and everyone else did not vote for the union in the election they would get their hair cut off. The statement was witnessed by Baker and Rose who, along with Dye, affirmed the fact on the stand, and by the nurse, and was then notarized I credit the above testimony by Dye that Reece made the remark attributed to her. There is no probative evidence that Dye had any reason to manufacture the incident; her story is supported by her conduct immediately afterwards in relating it to employee Stanton and putting it on paper in the presence of plant officials and employees; and it was corroborated by such officials and by Stanton whose account of Objection 1 conduct I have credited above. By contrast, Reece's denial is supported only by the testimony of Hardin, whom I have discredited as against Stanton above. Clayton Jackson's tes- timony that he heard no one on the line say anything to Dye is not significant, as he was by his own testimony some dis- tance away from Reece at the time. Finally, it does not seem in the least unlikely that Reece, who has a forceful, uninhib- ited, colorful personality, would say what Dye says she said. (2) Reece was discharged about 9:15, effective at 9.30 a in., 3 hours before the polls opened.' Manager Baker had copies of a notice typed up, as follows: NOTICE TO ALL EMPLOYEES This morning it was necessary for your company to discharge Evelyn Reece because she threatened another employee with physical harm if that employee did not vote for the union. Your company cannot and will not tolerate such behavior and we will take appropriate ac- tion toward any employee who threatens his or her fel- 3 A complaint was issued alleging Reece's discharge to be a violation of Section 8(a)(3) and (1) of the Act The Board found, however, that the discharge was not discriminatorily motivated , and dismissed the complaint 203 NLRB 1, review denied 488 F 2d 535 (C.A 6, 1973) 317 low worker in connection with the day's election or any- thing else relating to our company Baker gave copies of the notices to the plant superintendents for posting. In plant 1 the notice was posted about 11 a.m. on the bulletin boards by the timeclock at the plant entrance and in the cafeteria. Baker testified that employee discussion of Reece's threat "was going on all over the plant," and that that was the reason he had the notices posted. Ten employees (Davis, Hicks, Carter, Cole, Morrell, Deal, Gilliam, Laws, Bowers, and Willard) testified that individually, or in a group of se- veral employee's, they heard a rumor about Reece's threat to Dye, or a variation of it, before the election.' Three more employees (Mclnturff, Chandler, and Adams) testified they heard the rumor but failed to say they heard it before the election. Carter said it was all over the production line by 10 a in. Bowers and Willard heard it before starting work on the second shift, and Bowers said everybody on the second shift was talking about it. Stanton and Davis heard, in addition, that Dye had not told the truth, and Davis that "the company would take care of Dye; Hicks heard that the Company had bribed Dye. Reynolds heard that Reece had said she would see that those who voted against the Union got fired. Seven of the above-named witnesses (Davis, Hicks, Cole, Morrell, Deal, Gilliam, and Bowers) heard about Reece's discharge before the polls opened.' Cole, Deal, Clayton Jackson, and Nora Hardin read one of the posted notices before the election. There is also some testimony regarding the possible effect of these events. Thus, Dye herself testified she was against the Union and that she voted in the election, but that she was afraid and a little concerned that Reece was going to cut her hair off. Stanton, the company observer, who also voted, seems not to have been affected by Reece's threat to Dye as she testified that when Dye told her about it, she advised Dye that Reece had no right to tell her how to vote as she had the right to vote as she saw fit. However, because she heard Hardin loudly shout from the production line that Dye had lied and others say they did not believe Reece would say such a thing,' Stanton claimed she became concerned for Dye's safety and asked the supervisors to watch out for her. Mcln- turff testified that the rumors did not bother her; she never intended to vote in the election, and did not, as she "just didn't want to be all messed up with it." Reynolds said the rumors about Reece's threat did not affect her vote; she volunteered that she voted against the Union because Person- nel Manager Bob Carter had already told her when he hired her that "they" did not want the Union. Deal testified she voted the way she wanted to despite the rumors. Laws, a first-shift voter, testified the rumors did not worry him even though he did not hear about Reece's discharge until the day after the election. I credit the testimony set forth above, which is substan- tially undisputed, to the effect that Reece's threat or a vana- tion became widely known among employees in the voting unit; and that most of those who heard about it, also heard, 4 Laws mistakenly placed the rumor 2 or 3 days before the election 5 Four other employees (Carter, Chandler, Adams, and Willard) also heard about Reece's discharge or read the notice but were not sure it was before the election 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or learned from the notice posted at the timeclock and in the cafeteria where the election was held, that Reece was ter- minated . I-also find that Dye was frightened by Reece's re- mark but not too frightened to vote. I further find that there is no evidence that Reece's threat to Dye affected the vote of any employee, in the unit. (3) The following testimony was received relevant to the Respondent's agency contention: (a) Maintenance Foreman Robert Shell testified that Reece told him a few days before the election (which was held on Friday, May 26) that "after Friday I will have accomplished what I came here to accomplish." (b) Employee Anna Hicks testified Reece said to her "that she was there to get the Union in and that she was going to stay until it came in and then she would leave." (c) Employee Elizabeth Mclnturff testified that a few days before the election Reece stated in her presence and the pre- sence of several employees that "she had about accomplished what she set out to do." (d) A day or two before the election, Plant 1 Superintend- ent Bob Rose testified he approached Reece in a group of employees in the plant and said he had heard "you are leaving us after Friday"; and Reece responded, "yes sir. After Friday my job is finished. I've come here-I've done what I came here to do. And I'm going on to greener pastures." (e) President Robert Dennis and Marketing Manager Frank Chandler testified that they encountered Reece away from the plant on the evening of election day and she told them she had been sent to TPI to organize the employees for the Union. Reece was hired by the Respondent in March 1971 and was instrumental in making the initial contact with the Union in November 1971 about organizing the plant . Her reason for doing so, she said, was because of "the way I was treated." On and after February 5, 1972, she said, she was involved in union activity. She signed an authorization card and obtained signatures on authorization cards from 75 to 90 of the over 100 employees she solicited . She wore three buttons, a tee- shirt, and carried a handbag with prounion sentiment printed on them. In addition, she personally bought "vote yeas" post- ers and posted them in the plant bathrooms. Reece handbilled outside the plant on four or five occasions, including three times during the week of the election. At all of these occasions organizers from the Union were present . As a member of the in-plant organizing committee , she contacted employees in the plant and at their homes urging them to attend meetings, and she rented meeting places for Local 464 Business Agent Gregg from various local organizations having such facilities. She attended most of the meetings where she spoke and asked questions, and was appointed by International Organizer Reinhard to be an election observer for the Union but was replaced after her discharge. She continued many of the above-listed activities after her discharge. Although there is evidence that other plant employees, including Jackson, Hardin, and Nelson, also campaigned for the Union, the testimony of several employees (Bowers, Dye, David Carter, Stanton, and Willard) indicates that Reece took such a leading part that she was the only employee union advocate they were aware of. Reece testified she told several people, including employee Elizabeth Melnturff, President Dennis, and Plant 1 Superin- tendent Rose, that she "was the one that got the Union in here, or was getting the Union in here," and that she "could swing that election any-either way." She said, however, that during the time she was employed by TPI she was not em- ployed by anyone else and received no compensation from any other company or organization. International Organizer Bill Reinhard headed the cam- paign to organize the Respondent's employees, taking over in early April from Tom Reed who had done some spade work for the Union. He was assisted by Organizers Raglan and Hines, and by Local 464 Business Manager Jack Gregg. Rein- hard, Gregg, and the other organizers instructed employees, including Reece, who were to engage in handbilhng, to be polite and not to engage in discussions with employees which might jeopardize the outcome of the election. They both de- nied instructing Reece to threaten anybody. Although Gregg concentrated on plants 2 and 3, Reinhard was present at the plant 1 handbilling keeping a tight rein on those with him because he considered such roadside activity dangerous. Union Business Manager Gregg and International Organ- izer Reinhard testified that Reece had no official status with the International, was never a member of Local 464, and was never paid for her work in the campaign or told she would be asked to organize other plants. I credit the testimony of Shell, Hicks, Mclnturff, Rose, and Dennis and find that Reece told, or implied to, them that she had been sent into the plant for the specific purpose of organ- izing its employees. I also credit Reinhard and Gregg that this was not true. In my opinion, Reece is such an ardent believer in unionism, and worked so much harder than any other employee to bring the Union into the plant that she came to believe that, as she testified, she could determine the outcome of the campaign. Because Reece felt her role to be so important, she could not resist the exaggeration expressed to some of the plant personnel, but not, of course, in the presence of union officials. Objection 4. Threats of physical violence to property made by union representatives , its agents and/or em- ployees within the voting unit directed to eligible voters in the event that they did not vote for the union inter- fered with the freedom of choice of employees within the voting unit. In support of this objection, the Respondent presented tes- timony by former employee Betty Jo Campbell, who voted in the election, to the effect that during a conversation with employee Mark McKenny in the plant during the second shift 2 or 3 weeks before the election, ... we were talking and something was mentioned about the union coming in and maybe having a strike. And I said well, if they did strike I would come on in to work anyway. And he said no you wouldn't because if you tried to cross the picket line your car would be picked up and thrown up in the air with you in it. And I said you are not big enough to do that. And he said me and a few others, we could do it. McKenny was laughing, Campbell testified, and she thought he was joking. Campbell repeated the conversation to only one employee, Jeanette Bowers. Bowers confirmed that TENNESSEE PLASTICS, INC. Campbell told her, a few days before the election, that McKenny had said, "That if they had a strike, and if she tried to come across the line, they would throw her car up in the air." It was Bowers' testimony that Campbell said she did not know whether or not it was a joke. McKenny, also a former employee, testified he was an observer for the Union during the second-shift voting. He had two conversations with Campbell about the Union, he said, but he flatly denied making the statement attributed to him. He did not, he said, attempt to get employees to vote for the Union and in his conversation with them, he did not speak "directly for or against. Not necessarily promoting it, no." I credit Campbell in Coto. Campbell impressed me as reluc- tant to testify but sticking to the simple truth once she de- cided to do so. No motive for her doing otherwise is sug- gested . Although I accept Bowers' testimony as corroboration of what McKenny said to Campbell, I must accept Campbell's testimony that she thought McKenny was joking. McKenny conveyed the strong impression of trying to hide something. He seemed to become uncertain on cross- examination and his claim to complete passivity during the election campaign appears to be inconsistent with his selec- tion by the Union as its observer of the polling. CONCLUSIONS OF LAW Objection 1. I have found that Union Observer Hardin laughed twice during the polling of first-shift employees, and that she was remonstrated by the Board agent for doing so; but that there is no evidence that she or any other union observer talked with eligible voters during the election. No case has been cited to me, and I have seen none, holding laughter to constitute interference with a Board election. I hope I never see one. I recommend that Objection 1 be over- ruled. Objections 3 and 4. I have found that 2 or 3 weeks before the election Mark McKenny told employee Campbell, in ef- fect, that if the Union came in and there was a strike, he and a few others would throw Campbell's car up in the air with her in it if she tried to cross the picket line; that Campbell considered McKenny's remarks to be a joke; and that this remark came to the attention of one other employee, Jeanette Bowers. I have also found that Evelyn Reece told Norma Dye a few minutes before 7 a.m. on the day of the election that if Dye or anyone else did not vote for the Union, they would,get their hair cut off. The Respondent discharged Reece for that about 3 hours before the polls opened and posted notices so informing the employees about 1-1/2 hours before the first- shift voting began. Knowledge of Reece's threat, and her discharge, became widespread among plant 1 employees before they voted. Dye was frightened by Reece's threat, but there is no evidence that any other employee was frightened by it or that Dye's, or any other employee's, vote was af- fected. There is no contention, and no evidence, that McKenny was an agent of the Union, and I find he was not. I also find, contrary to the Respondent's contention, that Evelyn Reece was not an agent of the Union or clothed by the Union with the appearance of agency in the eyes of the employees. It is undisputed that Reece held no official position in either the 319 International or Local 464, was never paid for her campaign work among the employees of the Respondent's plant, and was not even a member of Local 464. Although the Union received the support, of employee-members of the in-plant organizing committee, and particularly Reece, it did not rely on her as its principal contact with the eligible voters. On the contrary, the Union was represented on the spot by a full staff of agents under the leadership of International Organizer Reinhard who personally directed the campaign. Designation as a member of the in-plant organizing committee and as union observer does not constitute an employee an agent, or give her the apparent authority of an agent, of the Union.6 Nor is the Union to be held accountable for an utterance by its most ardent employee advocate where, as here, its officers were not aware that she claimed, inaccurately, to have a special organizing commission from it,' had cau- tioned her and its other employee-supporters against utter- ances of this kind and never knew about or ratified the threat she made to Dye.' As McKenny and Reece were merely rank-and-file em- ployees, and not agents of the Union, the remaining issue is whether their threatening statements created a general at- mosphere among the employees of confusion and fear of re- prisal if they voted for the Union.' After careful consideration I have concluded that it is un- likely that such an atmosphere was created in this plant. Thus, although Reece's remark, or variations thereof, became widely known among the voters, her immediate discharge for making the remark also became widely known.10 Moreover, there was no actual violence prior to this election, and the Union's campaign was fully supervised by members of its staff who made themselves highly visible to the eligible voters and responsibly fulfilled their obligation to conduct their campaign in a noncoercive atmosphere II Only one em- ployee, Norma Dye, expressed any feeling of fear There is no indication that any voters, including Dye, Campbell, and Bowers, were intimidated into voting contrary to their own convictions.12 6 Owens-Corning Fiberglas Corporation, 179 NLRB 219, 223 (1969) 7 Bujkor-Plezner Division, Inc, 169 NLRB 998 (1968), remanded on other grounds 77 LRRM 3155 (C A 9, 1971) 8 NLR B. v Golden Age Beverage Company, 415 F 2d 26, 32 (C A 5, 1969), Bujkor-Pelzner Division, Inc, 197 NLRB 950 (1972), enfd 84 LRRM 2432 (C A. 9, 1973), Urban Telephone Corporation, 196 NLRB 23 (1972), Cross Baking Company, Inc., 186 NLRB 199, set aside on other grounds, 453 F 2d 1346 (C A 1, 1971), Tunica Manufacturing Company, Inc., 182 NLRB 729 (1970) 1 have read and considered at length the cases cited in the Respondent's brief i have concluded , however, that they are different from this case which is controlled, in my opinion, by the precedent cited above 9 See Sonoco of Puerto Rico, Inc, 210 NLRB 493 (1974) 10 Cross Baking Company, supra It Bujkor-PelznerDivision, Inc, supra, fn 8, Owens-Corning Fiberglass Corporation, supra. 12 Matlock Truck Body and Trailer Corporation v NL.R B, 495 F 2d 671 (C A 6, 1974), NLR.B v Griffith Oldsmobile, Inc, 455 F 2d 867, 871 (C A 8, 1972), Central Photocolor Company, 195 NLRB 839 (1972) 1 find no merit in the Respondent's contention that Provincial House, Inc., 209 NLRB 215 (1974), requires that this election be set aside on the basis of McKenny's threat to Campbell The statement in that case was made by a union staff representative to a meeting of employees on the eve of the election Here, it was made 2 or 3 weeks before the election by one rank- and-file employee to another who considered the statement a joke. See Poinsett Lumber and Manufacturing Company, 107 NLRB 234 (1953) 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I recommend that Objections 3 and 4 be certification of the Union , its conclusion that the Respondent overruled. violated Section 8(a)(5) and (1) of the Act by refusing to I conclude that the election reflected the true desires of the bargain, and its Order that the Respondent bargain upon voters and should stand. request be affirmed. RECOMMENDED ORDER It is recommended that the objections of the Respondent to the election of May 26, 1972, be overruled; that the Board's