Brandenburg Telephone Co.

National Labor Relations Board - Board Decisions

May 22, 1967

164 N.L.R.B. 825 (N.L.R.B. 1967)

BRANDENBURG TELEPHONE COMPANY
Brandenburg Telephone Company and
Electrical Workers Local Union No. 369,
International Brotherhood of Electrical
Workers, AFL-CIO. Cases 9-CA-3812 and
9-RC-6601.
May 22,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On November 2, 1966, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondent had not
engaged in certain other alleged unfair labor
practices, and recommended that the allegations of
the complaint pertaining thereto be dismissed. In
addition, the Trial Examiner found merit in certain
objections to the election in Case 9-RC-6601 and
recommended that the election be set aside.
Thereafter, the Respondent, the Charging Party,
and the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made at the
hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the entire record in this case
including the Trial Examiner's Decision, the
exceptions, and briefs, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner to the extent consistent herewith.
1. We find, in agreement with the Trial Examiner,
that the Respondent violated Section 8(a)(1) of the
Act and interfered with the Board election
conducted on January 14, 1966, and that the election
should be set aside. Our findings in this regard are
based only upon the following conduct:
i The Respondent has excepted to many of the credibility
findings made by the Trial Examiner It is the Board 's established
policy, however , not to overrule a Trial Examiner's resolutions
with respect to credibility unless, as is not the case here, the
preponderance of all the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products , Inc , 9]
NLRB 544, enfd 188 F .2d 362 (C.A. 3)
The Respondent also contends that the Trial Examiner was
biased and prejudiced against the Respondent Based upon our
review of the entire record , however, we find this contention
to be without merit
825
(a) The Respondent violated Section 8(a)(1) by
Vice President Tobin's speech to employees on
November 8, 1965, in which he said that "a Union
can do nothing for you that you cannot do better for
yourself or the Company will do for you voluntarily";
it was his "honest opinion that a Union will be bad
for both the Company and the employees"; he could
not see what the employees hoped to gain "by
paying" the Union "because we have always tried to
do our best for you"; and employees should retrieve
their signed designation cards and relegate them to
the wastebasket "where they belong." In the entire
context of this case, we find that these remarks were
calculated and tended to impress upon the
employees the futility of selecting a bargaining
representative,2 and to intimidate them into
withdrawing their designations and abandoning the
Union.3
(b) The Respondent violated Section 8(a)(1) of the
Act and interfered with the election by the following
conduct between November 16, 1965, when the
petition in Case 9-RC-6601 was filed 4 and
January 14, 1966, when the election was held:
(1) Vice President Tobin told employee Bullock,
sometime in the latter half of November 1965, that
he wished Bullock would get his card back if he had
signed one, and told him for the first time that his job
was a permanent one, that he "would not be laid off
on rainy days" and that he would be treated "right";
(2) Vice President Tobin interrogated Bullock in the
early part of January 1966 as to how he stood in
reference to the election and asked him to "give me
all the help you can"; (3) Tobin called Singleton into
his office in January 1966 and told him he did not
need the Union to receive a pay raise and that he
would "make it all right," and, on January 7, 1966,5
asked Singleton what he felt or thought about the
Union and to "see what you can do for me";
(4) Tobin dispatched letters to employees on
November 23 and December 14, 1965, and
January 8, 1966, in which he repeated statements
made in his November 8 speech set forth above, and
told the employees that the only way the Union could
force the Company to agree to its demands was by
striking, and that the employees would derive
absolutely no benefits if the Union won the election;
(5) the Respondent withheld the extra Christmas
bonus, which amounted to 2 weeks' pay, from voting
unit employees while granting the bonus to all
i Orkin Exterminating Company ofFlorida , Inc., 152 NLRB 83,
93.
S Dean Industries , Inc and Howard Stafford, Mayor of
Pontotoc , Mississippi , 162 NLRB 1078, 1088 , Griffith Ladder
Corporation , 159 NLRB 175, 187-188
" The Trial Examiner in footnote 29 of his Decision erroneously
referred to January 14, 1965, as the date the petition was filed
5 The Trial Examiner erroneously referred to this date as
January 7, 1965
164 NLRB No. 26
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonunit employees,' and Tobin and Supervisor
Henderson stated that unit employees did not
receive the bonus because of the Union, or the
pending election.
2. We agree with the Trial Examiner's conclusion
that the Respondent also interfered with the election
by Tobin's interrogation of employees at the Vine
Grove office on November 30, 1965, as to why they
would want a union and telling them he did not know
what a union could do for them that they could not
do for themselves, that they did not need a union to
get a pay raise, and he did not believe the Union
could do anything for the employees.7
3. In disagreement with the Trial Examiner, we
find that the Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to bargain with the Union.
As described more fully in the Trial Examiner's
Decision, the Union wrote to the Respondent on
November 10, 1965, requesting recognition as
bargaining representative of the Respondent's
employees. At the time, the Union had obtained
authorization cards from 15 of the 27 employees who
were later found, by agreement of the parties,
eligible to vote in the election, which the Union lost.
The Trial Examiner found that the Union did not
represent a majority of employees when it sought
recognition because 10 of the employees signed
union authorization cards at the Ritz Restaurant
"upon oral representations that such cards would
not be used other than for election purposes." We do
not agree that the record supports the Trial
Examiner's conclusion that such representations
were made to these employees.
The cards which were used by the Union clearly
state on their face that the signer authorizes and
designates the Union "to represent me in collective
bargaining with my employer." No other purpose for
the cards is shown on either the face or the back of
the cards. Six witnesses testified as to what was said
at the Ritz Restaurant meeting where the 10 cards in
question were signed. Five of the witnesses testified
the employees were told cards were needed for an
election. The sixth witness, upon whose testimony
the Trial Examiner apparently based his conclusion,
was employee Martin, who testified that Union
Representative Reesor "told us that these cards
were not for, to get the Union in, but were for the
Union to represent us to get an election to get the
Union," and that "there wasn't anything they could
do until after the election." However, we consider
this testimony ambiguous, and find that it does not
constitute a clear statement that the cards would not
be used for other than election purposes. Moreover,
to the extent that it does constitute such a statement,
it is unsupported by any of the other witnesses. In
these circumstances, and in view of the clear and
unambiguous representation in the face of the cards,
we find that the evidence fails to establish that
Martin or the other employees involved were told
that the only purpose for the cards was to obtain an
election.' Accordingly, we find, contrary to the Trial
Examiner, that none of the cards in issue were
invalid,9 and that the Union represented a majority
of 15 employees in the appropriate unit of 27
employees"' on November 10, 1965, when it
requested the Respondent to bargain.
In view of Respondent's unfair labor practices and
its interference with the election, as found above, we
find that the Respondent's refusal to recognize and
bargain with the Union on and after November 10,
1965, was motivated not by a good-faith doubt of the
Union's majority" but by a desire to gain time in
which to destroy the Union's majority status, and
that the Respondent thereby violated Section 8(a)(5)
and (1) of the Act.12
4. The complaint alleged, and the Respondent
admitted at the hearing, that since May 1, 1966, the
Respondent has unilaterally granted wage increases
to its employees without bargaining with the Union.
In view of our finding, above, that the Union was the
majority representative of such employees, we also
find, contrary to the Trial Examiner, that
Respondent violated Section 8(a)(5) of the Act by
unilaterally granting such wage increases.
THE REMEDY
We have found that the Respondent unlawfully
refused to bargain with the Union. In order to
remedy this unfair labor practice, we shall order the
6 In adopting the Trial Examiner 's conclusions in this regard,
we do not rely on that part of his rationale to the effect that "the
Respondent could have paid the extra bonus in 1964, without
imperiling the financial stability of the Company "
The Trial Examiner's failure to find this conduct violative of
Section 8(a)(1) is adopted pro forma in the absence of exceptions
thereto
" See Bryant Chucking Grinder Company, 160 NLRB 1526,
1564, ff; The Shelby Manufacturing Company, 155 NLRB 464.
" We find no merit in the Respondent's contention that
Stinnett's card should not be counted because he attempted to get
it back after Vice President Tobin's speech of November 8, which
we have found violative of Section 8(a)(1).
" We find without merit the General Counsel's contention that
Leadman Joe Lawson, who carries out routine orders of an
admitted supervisor, is a supervisor, and we have included him in
the unit.
11 We find without merit the Respondent 's contention that at
the time of the Union 's demand on November 10, 1965, it
questioned the appropriateness of the requested unit of all
linemen, repairmen , cable splicers, installers , servicemen, and
helpers because it did not specifically include certain
maintenance , supply, or right - of-way clearance men However,
the men involved in these jobs were, in fact , included among the
27 employees in the unit which the Union claimed to be
appropriate and the unit subsequently agreed to by the parties
We therefore conclude that the unit agreed to by the parties for
the consent election, and found appropriate by the Trial
Examiner, did not represent a substantial variation from that
originally sought by the Union, and, in all the circumstances of
this case , such variance provides no justification for Respondent's
refusal to bargain . Dixie Color Printing Corp , 156 NLRB 1431.
12 Joy Silk Mills, Inc, 85 NLRB 1263 , enfd 185 F 2d 732
(C A D C ), cert denied 341 U S 914, Bernel Foam Products Co ,
Inc , 146 NLRB 1277, Irving Air Chute Company, Inc , Marathon
Division , 149 NLRB 627, enfd. 350 F.2d 176 (C A. 2)
BRANDENBURG TELEPHONE COMPANY 827
Respondent to cease and desist from such unlawful
conduct and affirmatively to bargain with the Union.
Nothing herein contained shall be construed as
requiring the Respondent to revoke any wage
increases heretofore granted. In view of our
bargaining order, we shall not adopt the Trial
Examiner's recommendation that the Board direct
the holding of another election. Nor do we adopt, as
it is no longer necessary, the Trial Examiner's
recommendation that the Respondent permit the
Union access to its premises for employee meetings
and its bulletin boards for organizational purposes.13
As no currect question concerning representation
exists, we shall dismiss the petition in Case
9-RC-6601 and vacate all proceedings held in
connection therewith.14
ADDITIONAL CONCLUSION OF LAW
Add the following as paragraph 7 of the Trial
Examiner's Conclusions of Law:
"7. By refusing on November 10, 1965, and
thereafter, to bargain collectively with Electrical
Workers Local Union No. 369, International
Brotherhood of Electrical Workers, AFL-CIO,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Brandenburg Telephone Company, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their
union membership , activities , or sympathies, in a
manner constituting interference , restraint, or
coercion within the meaning of Section 8(a)(1) of the
Act.
(b) Granting or promising its employees any
benefits for the purpose of influencing them in their
exercise of rights guaranteed them in the Act.
(c) Withholding any benefits from employees for
the purpose of influencing them in the exercise of
the rights guaranteed them in the Act.
(d) Unilaterally changing working conditions of its
employees.
(e) Soliciting employees to abandon support of the
Union.
(f) Refusing to recognize and bargain collectively
with Electrical Workers Local Union No. 369,
International Brotherhood of Electrical Workers,
AFL-CIO, as the exclusive representative of its
employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment. The
appropriate unit is:
All employees employed by the Brandenburg
Telephone Company in or in connection with
the construction, installation, operation, and
maintenance of its telephone system in Meade,
Hardin, and Breckenridge Counties, Kentucky,
except office clerical employees, and all guards
and supervisors as defined in the National
Labor Relations Act, as amended.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights of self-organization, to form labor
organizations, to join or assist Electrical Workers
Local Union No. 369, International Brotherhood of
Electrical Workers, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized by Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act.
(a) Pay to each employee in the unit who was on
the Respondent's payroll at the time the 1965 extra
Christmas bonus was paid an amount equal to the
extra bonus which he would have received had the
Respondent not withheld such Christmas bonus
from him.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Upon request bargain collectively with the
above-named Union as the exclusive representative
of the employees in the unit set forth above with
respect to rates of pay, wages, hours of employment,
and other conditions of employment, and, if an
understanding is reached, embody the same in a
signed agreement.
(d) Post at its Brandenburg, Kentucky, and its
Vine Grove, Kentucky, establishments, copies of the
attached notice marked "Appendix."15 Copies of
said notice, to be furnished by the Regional Director
for Region 9, after being duly signed by
13 Midwestern Manufacturing Company, Inc, and Midwestern
Engine and Equipment Co , Inc , 158 NLRB 1698
14 S N C Manufacturing Co, Inc, 147 NLRB 809 , enfd 352
F 2d 361 (C A D C ), cert denied 382 U S 902.
15 In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order."
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's representative, shall be posted
immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the petition in Case
9-RC-6601 be, and it hereby is, dismissed, and all
proceedings held in connection therewith be, and
they hereby are, vacated.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees
concerning their union membership, activities,
or sympathies, in a manner constituting
interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act.
WE WILL NOT grant or promise our employees
any benefits for the purpose of influencing them
in the exercise of the rights guaranteed them in
the Act.
WE WILL NOT withhold any benefits from our
employees for the purpose of influencing them
in the exercise of the rights guaranteed them in
the Act.
WE WILL NOT unilaterally change working
conditions of our employees.
WE WILL NOT solicit employees to abandon
support of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-
organization, to form labor organizations, to join
or assist Electrical Workers Local Union
No. 369, International Brotherhood of Electrical
Workers, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to
engage in any other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities, except to the extent that such
rights may be affected by an agreement
requiring membership in a labor organization as
a condition of employment, as authorized in
Section 8(a)(3) of the Act.
WE WILL pay to each employee who was on
our payroll at the time the 1965 extra Christmas
bonus was paid an amount equal to the extra
bonus which he would have received had we not
withheld such Christmas bonus from him.
WE WILL bargain collectively, upon request,
with Electrical Workers Local Union No. 369,
International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive
bargaining representative of all our employees
in the appropriate unit described below, with
respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment and, if an agreement is reached,
embody such understanding in a signed
contract. The appropriate unit is:
All employees employed by the
Brandenburg Telephone Company in or in
connection with the construction
installation, operation, and maintenance of
its telephone system in Meade, Hardin, and
Breckenridge, Counties, Kentucky, except
office clerical employees, and all guards
and supervisors as defined in the National
Labor Relations Act, as amended.
All our employees are free to become or remain, or
to refrain from becoming or remaining, members of
the above-named or any other labor organization,
except to the extent that this right may be affected
by an agreement in conformity with Section 8(a)(3) of
the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of
1959.
BRANDENBURG
TELEPHONE COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 2407 Federal Office Building, 550 Main
Street, Cincinnati, Ohio 45202, Telephone 684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: On November 16,
1965, the Electrical Workers Local Union No. 369,
International Brotherhood of Electrical Workers,
AFL-CIO, herein referred to as the Union or Petitioner,
filed a petition for a representation election among certain
of the employees of the Brandenburg Telephone
Company, herein referred to as the Employer or the
Respondent, whose principal office is located at
Brandenburg, Kentucky. On January 14, 1966, pursuant to
BRANDENBURG TELEPHONE COMPANY 829
a stipulation for certification upon consent election
executed by the parties on December 10, 1965, an election
by secret ballot was conducted under the direction and
supervision of the Regional Director for Region 9. Upon
the conclusion of the election a tally of ballots was
furnished the parties in accordance with the National
Labor Relations Board Rules and Regulations, Series 8, as
amended. The tally of ballots showed that there were
approximately 28 eligible voters and that 27 ballots were
cast of which 9 were for the Petitioner and 18 were against
the Petitioner. On January 18, 1966, the Petitioner filed
timely objections to conduct affecting the results of the
election.
On January 18, 1966, the Union filed a charge upon
which the Regional Director for Region 9, on March 23,
1966, issued a complaint and notice of hearing, naming
Brandenburg Telephone Company as the Respondent.
The complaint alleged that the Respondent had engaged in
and was engaging in unfair labor practices as defined in
Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended, herein called the Act. The complaint
incorporated substantially the same allegations as
contained in the Petitioner's objections to election.
The Regional Director investigated the objections to
election and thereafter on March 31, 1966, issued and
served on all parties his report on election, objections to
election, and recommendations to the Board. In his report
the Regional Director concluded that the Petitioner's
objections 1, 2, and 4 raised substantial and material
issues of fact affecting the results of the election and
recommended that a hearing be held before a Hearing
Officer to resolve the issues raised by objections 1, 2, and
4.
In substance, objection 1 alleged that the Employer
unlawfully interrogated and coerced its employees and
threatened them with the loss of benefits and jobs should
the Petitioner succeed in the election; objection 2 alleged
that the Employer, in a series of letters to its employees
dated November 23 and December 8, 14, and 27, 1965, and
January 5, 8, and 12, 1966, unlawfully interfered with the
election; and objection 4 alleged that the Employer gave
all nonunit employees an unprecedented 2 weeks' salary in
addition to the usual Christmas bonus and then told all
unit employees that they too would have received the
additional salary if the Petitioner had not petitioned for an
election.
On April 11, 1966, the Employer filed timely exceptions
with the Board to the Regional Director's report with
respect to objections 1, 2, and 4. Upon consideration the
Board ordered that a hearing be held to resolve the issues
raised by the Petitioner's objections 1, 2, and 4 and that
such hearing be consolidated with any hearing held on the
complaint issued in Case 9-CA-3812. It was further
ordered that the Trial Examiner, if designated for the
purpose of conducting such hearing, should prepare and
cause to be served on the parties a report containing
resolutions of the credibility of witnesses, findings of fact,
and recommendations to the Board as to the disposition of
said issues. Thereafter, the Regional Director entered an
order consolidating Cases 9-RC-6601 and 9-CA-3812
and set the same for hearing.
The consolidated cases came on to be heard before me
on May 18,19, and 20,1966, and July 25,26, 27, 28, and 29,
1966, at Louisville, Kentucky. At the hearing, each party
was afforded a full opportunity to be heard, to call,
examine, and cross-examine witnesses, to argue orally on
the record, to submit proposed findings of fact and
conclusions of law, and to file briefs. All briefs have been
reviewed and considered by me.
Upon the whole record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent , Brandenburg Telephone Company, at
all times material herein , has been a Kentucky corporation
engaged in the operation of a telephone communication
system from its principal place of business located at
Brandenburg , Kentucky.
During the past 12 months, which is a representative
period , the Respondent had a gross volume of business in
excess of $ 100,000 of which an amount in excess of $5,000
was received from toll call services it furnished to points
outside the State of Kentucky . During the same period it
purchased goods and materials valued in excess of $5,000
which originated outside the State of Kentucky.
The Respondent admits and I find that the Respondent
is now and has been at all times material herein engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Electrical Workers Local Union No. 369, International
Brotherhood of Electrical Workers, AFL-CIO, is a labor
organization within the meaning of Se, tion 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS
TO THE ELECTION
A. The Company operates a telephone system with
eight exchanges in three rural Kentucky counties. Its main
office and exchange is at Brandenburg, Kentucky, which
is about 40 miles from Louisville, Kentucky. Another
business office and exchange is maintained at Vine Grove,
Kentucky, about 20 miles from Brandenburg. The other
exchanges have only equipment in them, and no
employees are stationed there or work out of them.
The executive vice president and general manager of
the Company who is in overall day-to-day supervision of
the Company's operations is Joseph Dalton Tobin.
Henrietta S. Brown is the Company's office manager and
bookkeeper who supervises the Company's approximately
eight office clerical employees at Brandenburg and the
three at Vine Grove. All office clerical employees are
female. Howard Wardrip supervises all of the male
employees who work out of Brandenburg. Marion
Henderson supervises all male employees working out of
the Vine Grove office, who at the time of the events at
issue herein consisted solely of Max Junior Ewart,
George T. Lewis, Larry Martin, and Robert C. Atelier.
Shortly prior to October 30, 1965, Louis Keith Reesor,
assistant business manager of the Union, was informed by
a union member working at the Olin Mathieson Chemical
Corporation that a few employees of the Respondent
Employer had told him that they wanted to be represented
by the Union. Thereafter, on the evening of November 5,
1965, an organizational meeting was held at the Ritz
Restaurant located at Muldrauh, Kentucky. Ten of the
Respondent's employees appeared at the meeting and
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed union designation cards.' Thereafter five additional
cards were signed, three on November 5 and two on
November 6, 1965.2 Tobin3 first learned of the Union's
organizing efforts on October 20, 1965, when employee
George Hesler told Tobin that employees Jerry Miles and
Arnold Aebersold had asked him if he would join the
Union and that he had refused because he did not think
they needed a union. As Tobin put it, he just "listened" for
the next few days; i.e., he stayed around the Company's
premises to see if he could hear anything more about what
was going on and to be available if anyone wanted to talk
with him about it.
On October 27, 1965, Supervisor Howard Wardrip told
Tobin that employee Joe Lawson had told him that some of
the men wanted him to join a union; that he would not do
it; and that Wardrip should tell Tobin about it. Upon
receiving this information, Tobin informed his supervisors
about the union organizational activity occurring and told
them just to "listen" to see what they could learn, but not
to say anything to anybody about it. He also commenced
"looking for a lawyer" because, as he put it, he "didn't
know anything about the Union" and he "needed advice."
On November 3, 1965, a friend of his made an
appointment for Tobin with Respondent's counsel,
James U. Smith. Tobin conferred with Smith and Attorney
Louis E. Woolery on the morning of November 6, at
10 o'clock. Smith was retained as Respondent's counsel.
At this time, Tobin did not know about the meeting of the
Respondent's employees at the Ritz Restaurant on
November 5.
According to Tobin, Smith advised him that the
Respondent could not spy on its employees, threaten to
take benefits away from them, or promise them benefits.
Smith furnished a printed document with "do's" and
"don'ts" for supervisors which Tobin gave to his
supervisors. According to Tobin, he told the supervisors
not to question the employees about the Union and not to
spy on them or threaten them in any way or promise
"anything unusual or anything extra." Tobin also said that
if the employees asked them a question they had "a right
to answer it to the best of [their] ability."
Tobin left Smith's office with a determination to do all
things which were legally permissible to bar the Union
from the Respondent's premises.
On the afternoon of November 6, 1965, employee Harold
Dunn visited Tobin's dry goods and grocery store at
Irvington, Kentucky,4 where Tobin stayed "right smart on
Saturday and every Saturday night." Dunn related to
Tobin that Union Representative Reesor, and employees
Miles and Aebersold, who claimed all the old men had
signed with the Union, tried to get him to join the Union.
Dunn volunteered, ". . . I told them I didn't want to have
anything to do with it."
"Along about dark" on November 7, 1965, Tobin was
taken with "the itch" to address the Respondent's
employees. Collaborating with his son, J. D. Tobin, Jr.,
Tobin prepared a speech. On Monday morning,
November 8, 1965, Tobin journeyed to Louisville,
Kentucky, where he presented the speech to Attorney
Woolery for advice. The speech was worked over,5 and
delivered to all the Respondent's employees on
November 8, 1965, about 4 p.m. in Tobin's office,6 at the
Respondent's Brandenburg exchange. The typed
transcript from which Tobin read is an admitted exhibit.
There is no competent evidence to support a finding that
Tobin in delivering the speech deviated from the text.
Tobin candidly testified that he did not want a union and
was bent on keeping it out of the Respondent's
establishment.'
B. Tobin's speech of November 8 set the tone for the
Employer's campaign against the Union. In his speech,
Tobin first reminded the employees that he desired to talk
to them "about a matter which is of vital concern to you
and the Company." He pointed out that "some of our loyal
employees have told me that an outside union organizer
has been calling on some of you at your homes, trying to
get you to sign an authorization card."8 Tobin said that he
hoped the employees had not signed a card. He stated that
the reason he wanted to talk to the employees was because
"this outside union troublemaker has already called on
some of you" and it could be assumed that the outside
union troublemaker would continue "his efforts to get
[employees] to sign union authorization cards." Tobin
reminded the employees how serious the situation could
become and how it could affect the employees, their
families, and the Company. Tobin frankly stated, "We do
not want a union at this Company." He said that a union
could "do nothing for you that you can not do better for
yourself or the Company will do for you voluntarily and
without you having to strike and walk a picket line."' He
pointed out that it was his "honest opinion that a union will
be bad for both the Company and the employees." He
I The card read "I of my own free will, hereby authorize
and designate the International Brotherhood of Electrical
Workers, an AFL-CIO affiliate, to represent me in collective
bargaining " No reference was made on the card to an election
2 The employees who signed cards at the November 5 meeting
were Arnold D Aebersold, Henry Duncan, Louis Darnall, Max J
Ewart, Lee Parr King, G T Lewis, Jerry M Miles, Larry J
Martin, Jackie W Simmons, and Russel Vandiver In addition to
these employees Wavie Tucker, Wade Lamar Benham, and
Earl B Stinette signed cards on November 5, 1965, and Ray D
Bullock and Larry Singleton signed cards on November 6, 1965
3 Tobin was a prominent businessman in the Brandenburg
community Besides his connections with the telephone company
he was, among other things, engaged in banking, grocery, dry
goods, and insurance businesses
Tobin also had a store at Brandenburg, Kentucky
The fact that Tobin sought or relied upon the advice of counsel
is no excuse for the Respondent's provable misconduct N L.R B
v Clearfield Cheese Co , Inc , 322 F 2d 89, 93 (C A 6)
8 Tobin's choice of his office as the place for delivering his
speech suggests that Tobin was using the locus of final authority
as an added incentive to persuade the employees to reject the
Union Such choice was calculated to interfere with the
employees' free choice
7 Tobin testified, "I didn't want a union and I was relying on my
attorney to help direct me to keep us from having a union in every
legal way that it was our right to do, not anything wrong at all but
legal way we had a right to do " He averred that he was not going
to recognize the Union until he was "shown legally that [he] was
supposed to " He expressed his purpose as "I meant to do
everything that was legally right to do, not to have a union
and said that he "did that "
8 The implication is strong here that Tobin was aware of which
employees were union sponsors
" In this remark, Tobin stressed the lack of need for the Union
and reminded the employees that employee benefits would
continue to flow from the source, the Employer's voluntary
beneficence, whether a union was chosen or not, and that the
employees could expect "nothing" more from the Union "An
employer interferes with the right of self-organization when he
emphasizes to his employees that there is no necessity for a
collective bargaining agent " N L R B v Bailey Company, 180
F 2d 278, 279 (C A 6)
BRANDENBURG TELEPHONE COMPANY 831
emphasized that the Union wanted the employees'
authorization cards because "the Union wants your
money," and noted, "The Union organizers aren't really
interested in you but they have to act like they are in order
to try and get you to sign a card." Tobin observed that he
couldn't see what the employees hoped to gain "by
paying" the Union, "because we have always tried to do
our best for you, including giving you benefits and
frequent wage increases and other benefits such as paid
holidays, paid vacations , sick leave, hospitalization
insurance , and retirement benefit plan."10
Tobin reminded the employees that the important thing
to remember was that the Employer "has done all these
things voluntarily" without the employees "having to pay
one cent to outsiders," nor did the employees have "to
strike or walk a picket line for one day, one hour or one
minute to try to get any of these benefits." In this context,
Tobin explained that "voting a union in doesn't guarantee
any improvement in benefits because under the law the
Company does not have to agree to any demand or
proposal that a union might make." He admonished the
employees that "on the contrary, when a union gets in all
wages and other benefits are frozen under the law until the
Company and the Union come to an agreement or find that
they can not reach an agreement, which might not be for
many months." He clinched the thought by asserting that
if the Union prevailed the Respondent "would have just as
much right to demand that employee benefits be reduced
as the Union would have to demand that they be
increased."
Tobin advised employees that if the Union became the
bargaining representative, the employees would no longer
"have the right to speak for [themselves] in matters
connected with [their] employment and the Company
could not deal with [them] on these matters, because
under the law the Union has sole right to do [their] talking
for [them] and if [they] don't like the way they represent
[them], there is not a thing [they] can do about it
individually."
To "show" the employees what a union could do for
them, Tobin referred to a strike at South Central
Telephone Cooperative, Glasgow, Kentucky, where
replacements were hired for strikers "which it had the
legal right to do." He said that the yet unsettled strike was
"marked by a lot of violence." In this connection, he
pointed out that "strikers not only do not draw any wages
during the strike, but under the law they also can not draw
any unemployment compensation benefits in Kentucky
and they can be permanently replaced by the employer
with other employees and consequently lose their jobs."
Tobin summarized, "Thus, you can see that a union can
cause employees a lot of trouble if the employees select
the Union to represent them." Tobin said that he
"sincerely hoped" that all those employees who had not
signed a union authorization card would not do so. He
advised the employees, "If any of you have signed a union
card you have a perfect right to call the union organizer
and tell him you want it back, so that you can tear it up and
throw it in the wastebasket, which is dust exactly where it
belongs." He declared that he sincerely believed that "a
union can spell `trouble' in great big capital letters"; he
advised employees that the "best way to avoid trouble is to
stay away from the troublemakers, namely, the outside
union organizers." He pointed out that the union
organizers "may even lie to you or try to talk you into
signing a card by telling you the card simply means that
the Union wants to have an election, when in truth and in
fact you could make yourself liable to pay dues, fines and
assessments by signing a card." Tobin stressed the
protective arm of the Respondent by stating, "If any of you
are threatened in any way by these union organizers, I
wish you would let me know and we will take appropriate
steps under the law to protect your rights." He advised, "If
you don't want to talk to these union organizers, you have a
perfect right to tell them so, and to close the door in their
face."
Tobin's final word was, "In conclusion, let me say that I
hope you will not fall for the tricky promises and phony
double talk which the union organizers will undoubtedly
give you. I hope you will not sign a union authorization
card. And I hope that if you have any questions about this
matter, you will give me the opportunity to discuss them
with you. As you know, the door of my office is always
open to you."
In analyzing Tobin's speech, I am not unmindful of the
Board's observation:
Over the years one of the greatest obstacles to the
achievement of the central purpose of the Act, the
encouragement of the practice and procedure of
collective bargaining, has been the use of some
employers of economic pressure to thwart the
exercise of free choice in the selection of a bargaining
agent. Many of the other rights guaranteed to
employees by the Act are meaningless if an employer
.may use such pressure to influence the employees.
Therefore, the Board, . . . must closely guard the
integrity of its elections so that employees may
exercise the freedom of choice contemplated by the
Act and thereby have a full opportunity to enjoy its
other benefits.
While an employer may address himself to the issue as
to whether the union in question, if selected as the
bargaining agent, will be able to represent employees
effectively in the light of the existing economic realities, he
may not, in this connection, resort to threats of reprisals or
force or promises of benefits or cause a contamination of
the election either directly or indirectly. Tobin's speech
exceeded these limitations. Pervading his remarks was a
conscious and studied effort to cross beyond these barriers
by employing thought provocations without the use of
actionable words, although sometimes actionable words
were used. To achieve this end, words and phrases
sometimes were skillfully chosen to obscure their
definitive meaning or to create a double entendre, yet the
words and phrases, in the context in which they were
uttered,' 1 were sufficiently clear to the employee-
" Here again is a strong suggestion that the employees do not
need a union which springs from the Employer's assurance that it
tries to do its "best" for its employees
ii "Words innocuous in themselves can take on a sinister
meaning in the context in which they are uttered " Local 901,
International Brotherhood of Teamsters, etc (El Impartial, Inc)
v. Compton, 291 F.2d 793, 797 (C A 1)
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
listeners' minds to instill fear of economic jeopardy.12
Such an effect may, nevertheless, constitute unlawful
interference for an employer's sophisticated evasion of the
law may be, nonetheless, unlawful.13 The Supreme Court
teaches that "interference must be determined by careful
scrutiny of all factors, often subtle, which restrain the
employees' choice...." International Association of
Machintsts (Serrick Corp.) v. N.L.R.B., 311 U.S. 72, 80.
As was stated in N.L.R.B. v. W. C. Nabors Co., 196 F.2d
272, 276 (C.A. 5): "When statements such as these are
made by one who is part of the Company management,
and who has the power to change prophecies14 into
realities, such statements, whether couched in language of
probability or certainty, tend to impede and coerce
employees in their right of self-organization, and therefore
constitute unfair labor practices." Tobin left no doubt that
his thoughts on the subject would be translated into
actions.
The well excogitated remarks of Tobin tended to cause
union disaffection and to induce employees to return their
union designation cards so that the union majority status
could have been dissipated even before the Union made its
bargaining demand. By his minatory message Tobin
indoctrinated the employees with the psychology of fear,
fear not only that their selection of the Union would be a
waste of money and a futile act15 but also that it would
imperil their very livelihood. It is unmistakable that the
thrust of Tobin's speech was not only to threaten the
employees with hazards if they flouted his well-stressed
wishes and chose the Union as their bargaining agent but
also to persuade the employees that the choice of the
Union would be a futile act in that the Employer would
voluntarily bestow current and future benefits without a
union, but with a union any benefits gained or retained
would only result from economic struggle and strife.
Tobin gained the entire effect by utilizing every
emotional advantage. He chose his office, the locus of
highest authority, for the setting; he gathered all
employees together in a captive audience; he included the
employees' supervisors; he compensated the employees
for the time spent listening to his remarks; he packed his
speech, with the aid of his lawyer, with emotionally loaded
words and phrases such as: "a matter which is of vital
concern to you," "our loyal employees have told me," "out
side union troublemaker," "how it can effect you, your
family," "a union can do nothing for you," "We do not
want a union ," "my honest opinion that union will be bad,"
"union wants your money," "I can't see what you would
hope to gain ," "Company has done all this voluntarily
without you having to pay 1 cent to outsiders , nor have any
of you had to strike ... 1 hour or 1 minute ," "Company
does not have to agree," "all wages and other benefits are
frozen under the law ," "for many months ," "demand that
employee benefits be reduced ," "no longer have right to
speak for yourself," "Company could not deal with you,"
"union has sole right to do your talking," "strike has been
marked by lot of violence," "strikers ... lose their jobs,"
"union can cause employees a lot of trouble," "sincerely
hope you will not sign [ authorization card] ," "throw it
[union authorization card ] in wastebasket , which is
exactly where it belongs ," "I sincerely believe that a union
can spell `trouble' in big capital letters," "stay away from
troublemakers ," "union organizers may even lie ," "we will
take appropriate steps under the law to protect you,"
"close the door in their face," and "the door of my office is
always open to you."
Tobin composed a mosaic-like image of the Employer
with these words and phrases and others, which like the
chips of a mosaic, were not always in themselves
meaningful but when joined together revealed a deliberate
design . The image depicted was that of an employer
bristling with reprisal if his employees chose the union and
summering with beneficence if his employees maintained
the status quo.
I am well aware that an employer does not commit an
unfair labor practice if he expresses or disseminates
"views, argument or opinion " whether in written , graphic,
or visual form , if such expressions or disseminations
contain "no threat of reprisal or force or promise of
benefit ." (See Section 8(c) of the Act .) 1e An employer may
engage in noncoercive antiunion solicitation, a right which
"is protected by the so-called ` employer free speech'
provision of Section 8(c) of the Act ." N.L.R.B. v. United
Steelworkers of America, CIO (Nutone Inc., Intervenor),
357 U.S. 357, 362. However , the legislative history
of Section 8(c) does not suggest that by the enactment
of Section 8(c) it was intended that the realities of the
industrial world be ignored ," or that there be overlooked
the Isalient;fact that there is a distinct difference between
the reaction of an employee to the statement of his
employer, upon whom he depends for his daily bread,
and that of the armchair strategist who sometimes applies
'Z For example there are many ways to express the thought that
bargaining must start at "scratch" if a union prevails The
Respondent chose these words, "If this union gets in here, we
would have just as much right to demand that employee benefits
be reduced as the Union would have to demand that they be
increased." The implication is strong in this language that with
the choice of the Union, coupled with the antagonistic attitude
that may be expected from the self-confessed antiunion employer,
the employees would either emerge with less than what they had
or they would be forced to struggle to keep what they presently
enjoyed. Cf. C. R Hills Division of Shoe Corporation, 155 NLRB
1163, 1182.
11 Statements which can be reasonably construed by the
employees to be a threat to prevent unionization of employees
"even though the statements may not be directly coercive"
constitute violations of Section 8(a)(1) of the Act. N.L R B v.
Electric Steam Radiator Corp., 321 F 2d 733, 736 (C A 6)
'" Expressions of opinion are not protected if they are "couched
in such phrases, or attended by such circumstances that they tend
to exercise undue influence ." N L.R B. v Ford Brothers, 170 F 2d
735, 738 (C A 6), N L R B v. Kingsford Motor Car Co , 313 F 2d
826,832 (C A. 6)
15 " the desire of employees to unionize is directly
proportional to the advantages thought to be obtained from such
action " Radio Officers' Union, etc (A H Bull Steamship
Company) v NLRB , 347 U S 17,46
1e " it may be said that the language of Section 8(c) of the
National Labor Relations Act, as amended by the Labor
Management Act of 1947, 29 U S C A § 141 et seq, 61 Stat 136, is
no more than the restatement of the principle embodied in the
First Amendment," N.L R B v Bailey Co , 180 F.2d 278, 280
(C A 6), or as expressed by the Supreme Court, "The remedial
function of § 8(c) is to protect noncoercive speech by employer
and tabor organization alike in furtherance of a lawful object It
serves that purpose adequately without extending its protection to
speech . in furtherance of unfair labor practices "
International Brotherhood of Electrical Workers (Samuel Langer)
v N.L.R B., 341 U S 694, 704.
IT I observed that while the Respondent's employees were
testifying they appeared little equipped to grasp the hypothetical
interpolations often applied to the written and spoken word in the
field of labor- management relations
BRANDENBURG TELEPHONE COMPANY 833
connotations to the employer's language .[" As was said
by Judge Frank, "Tough language barriers often exist
between the man in the library or the judge and the
man on the street .. " 19 Larson v. Jo Ann Cab Corp.,
209 F.2d 929, 933 (C.A. 2).
In Foreman & Clark, Inc. v. N.L.R.B., 215 F.2d 396,398
(C.A. 9), the court said: "The flattery of hope and the
impressions of fear ... can intrude themselves in labor
relations...." Flattery of hope and impressions of fear of a
coercive nature, sometimes subtle, are often used by
employers as inducements for union disaffection. At the
very threshold of the Repondent's antiunion campaign
well-advised Tobin adopted these devices and introduced
the recurring theme, "I sing the song of whose bread I
eat."
A reasonable interpretation of Tobin's remarks as a
whole, in the light of the realities of the industrial world,
confirms a finding that Tobin's speech exceeded the
permissible limits set by Section 8(c) and encroached upon
employees' rights guaranteed by Section 7 of the Act, for
which reason I find that the Respondent violated Section
8(a)(1) of the Act.
In Tobin's remarks the "fist inside the velvet glove" is
seen . Employees were not likely to miss "that the source
of benefits now conferred is also the source from which
future benefits must flow and must dry up if not
obligated," (cf. N.L.R.B. v. Exchange Parts Company, 375
U.S. 405, 409), or as also put by Tobin such benefits might
be "frozen" for "many months" by unproductive
collective bargaining reflecting the Respondent's
antagonistic attitude toward the Union. Indeed Tobin
made plain that if the Union became the bargaining agent,
the Respondent's stubborn opposition to the Union would
cause a modification of its liberal labor policy, which
manifested itself in benefits presently bestowed to the
point where it would demand the withdrawal of those
benefits if the Union were so presumptuous as to demand
additional benefits. The clear implication of Tobin's
remarks is that the Union would be forced to start from
"scratch." To so represent has been held to be a violation
of Section 8(a)(1) of the Act. Famaco, Inc., 158 NLRB 111.
Implicit in Tobin's antipathy toward the Union was the
strong suggestion that the Employer would deal more
harshly with the Union than with the individual employees.
Thus, Tobin clearly implied that a choice of the Union
sounded the advent of strikes and violence and that a
maintenance of status quo assured a retention of present
benefits and a bestowal of future benefits. By thus
introducing the thought of strike and the consequences
thereof, coupled with the idea that strikers lose their jobs
(Tobin did not distinguish between economic and unfair
labor practice strikers) 20 at a time when there was no
suggestion of strike, Tobin revealed the Respondent's
intent to threaten employees with loss of jobs rather than
to abstractly instruct them in the consequences of strike. 21
Cf. Orkin Exterminating Company of Florida, Inc., 152
NLRB 83, 93; Hoffman-Taff, Inc., 135 NLRB 1319, 1321;
The Little Rock Downtowner, Inc., 143 NLRB 887, 890.
Advising employees that "the Union can do nothing for
you that ... the Company will not do for you voluntarily"
was an act "reasonably calculated to create an atmosphere
of futility and to discourage support for the Union among
employees" and was unlawful. Orkin Exterminating
Company, supra, 93.
The creation of the belief that there was no necessity for
its employees to support the Union was violative of Section
8(a)(1) of the Act. Herman Equipment Manufacturing
Company, 156 NLRB 716. See also N.L.R.B. v. Bailey Co.,
supra, 279.
Tobin' s implication that the Union could do no good for
the employees and that a choice of the Union as bargaining
agent would lead to trouble interfered with employees'
Section 7 rights. See Cleveland Woolens, 140 NLRB 87,
94; Owens-Corning Fiberglass Corporation, 146 NLRB
1492, 1503; Sagamore Shirt Company d/b/a Spruce Pine
Manufacturing Company, 153 NLRB 309. Tobin's
characterization that the Union would "be bad" for the
employees was unlawful coercion. See General Steel
Products, Inc., et al., 157 NLRB 636; Dixie Cup, 157
NLRB 167.
Tobin's suggestion that the employees retrieve their
signed union designation cards and relegate them to the
wastebasket in the context of his speech is not unlike, in
coercive effect, unlawful solicitation of union withdrawals
which has been condemned. Cf. Southwestern of Dallas
Optical Company, 153 NLRB 33; N.L.R.B. v. Valley
Broadcasting Co., 189 F.2d 582, 287 (C.A. 6); Phil-Modes,
Inc., 159 NLRB 944.
Tobin's suggestion that a union victory was tantamount
to strikes, violence, and loss of jobs offends Section 8(a)(1)
of the Act. Cf. Utica-Herbrand Tool Division of Kelsey-
Hayes Company, 145 NLRB 1717, 1718; General Industries
Electronics Company, 146 NLRB 1139, 1140; Brunswick
Corporation, 147 NLRB 428, 433, 434; Pepperell
Manufacturing Company, 159 NLRB 291.
The Respondent's statement that if a collective-
bargaining agent were chosen, the employees would no
longer have the right to speak for themselves in matters
connected with their employment and that the Company
could not deal with them on these matters because, under
the law, the Union had the sole right to do their talking for
them, and, if they did not like the way the Union
represented them, there was not a thing they could "do
18 The disaffection of the Respondent's employees as disclosed
by the election and employee disaffection, in some cases
confessed to Tobin, are proof that the employees grasped the gist
of Tobm's remarks
1' "Words are not pebbles in alien Juxtaposition; they have only
a communal existence , and not only does the meaning of each
interpenetrate the other , but all in the aggregate take their
purport from the setting in which they are used, of which the
relation between the speaker and the hearer is perhaps the most
important part What to an outsider will be no more than the
vigorous presentation of a conviction to an employee may be the
manifestation of a determination which is not safe to thwart."
Learned Hand, Jr , N L R B v.Federbush Company, 121 F 2d954,
957 (C A 2)
211 It was said in Hoffman-Taff, Inc , 135 NLRB 1319,1321 " .
Bass did not limit his strike references to an economic strike
Further, the record contained no suggestion that at this time a
possible strike, economic or otherwise, was being discussed
among the employees or rumored in the plant , and it appears
beyond a doubt that Bass . . was intentionally threatening the
employees with the loss of their jobs rather than merely abstractly
instructing them in consequences of economic strikes."
21 In Wtnn -Dtxte Stores , Inc., 153 N LRB 273, the Trial Examiner
said : "Respondent 's continual reference to permanent
replacement of employees during a strike . uttered in the
context of its other statements during the interviews , and at a time
when it had not even recognized the Union and no strike threat
existed so far as this record is concerned , was coercive "
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about it individually" amounted to a threat that the
employees would lose substantial benefits.22
As noted above, the Supreme Court teaches that the
existence of interference must be "determined by careful
scrutiny of all factors, often subtle. " (Emphasis
supplied.)23 Frequently, by reason of the subtleties
employed, it is difficult to categorize the indicia of
unlawful antiunion propaganda. However, there seems to
emerge from the cases24 on this subject a proposition that
may be expressed thusly: if the antiunion propaganda
arguably falls within the proscription of Section 7 of the
Act, it is unlawful and exceeds the permissive limits of
Section 8(c) of the Act. Hence, if the antiunion propaganda
"arguably" interfereS25 with, restrains, or coerces
employees in the exercise of rights guaranteed by
Section 7 of the Act (that is to say that an employee's
response26 to such propaganda is less than the
untrammeled expression of a freedom of choice for a
bargaining representative), the propaganda encroaches
upon the rights guaranteed employees under Section 7 of
the Act and is in violation of Section 8(a)(1) of the Act.27
There seems little doubt that Tobin's remarks "arguably"
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act.
Tobin's peroration augured of futility if the Union were
chosen and the withdrawal of the Respondent's past
generosity. The Respondent promised a continuation of
the rewards to be derived from individual bargaining vis-a-
vis the evils attendant upon its bargaining with the Union.
By its expressed inclination and hostile attitude the
Employer threatened that the choice of the Union meant
trouble "in great big capital letters."
In the specifics noted above, as well as in Tobin's
remarks taken as a whole, Tobin interfered with
employees' rights as guaranteed by Section 7 of the Act.
Tobin's remarks were delivered with the intent and
purpose and had the effect of interfering and could be
reasonably interpreted by the employees as an attempt to
interfere with their rights to self-organization.
C. After November 8, 1965, the Union received no more
authorization cards.
On November 9, 1965, employee Stinnett appeared at
Tobin's Irvington, Kentucky, store and told Tobin that he
would like to have his union authorization card back.
Tobin advised him, "I don't know whether they will give it
to you or not, but you can ask for it back if you want it
back."
D. On November 10, 1965, the Respondent received a
letter from the Union's counsel informing the Employer
that the Union presently represented "a majority" of the
Employer's employees in a unit of "All linemen,
repairmen, cable splicers, installers, servicemen, and
helpers." In the letter the Union demanded that the
Employer recognize the Union as "bargaining
representative." The Respondent, by its counsel,
responded to the letter on November 11, 1965.26 The
Respondent wrote that it entertained a "good-faith doubt"
that the Union represented a majority of the employees
described in the Union's letter and that the Respondent
was "not by any means certain that the unit described ...
[was] an appropriate unit for the purposes of collective
bargaining." The Respondent further pointed out that "no
useful purpose would be served" by submitting the cards
to be checked by a mutual third party under the conditions
stated in the Union's letter "since a mutual third party
could not know the circumstances under which the alleged
authorization cards were procured, the validity of said
cards could not be tested by the examination and cross-
examination of witnesses under oath, and thus the mutual
third party would not and could not know whether such
cards were lawfully procured and valid." It was further
stated that the Respondent could not lawfully recognize
the Union "unless and until that organization had been
duly certified by the National Labor Relations Board as
the result of a Board-conducted secret ballot election, as
the collective bargaining representative in an appropriate
unit of the Company employees." The Union failed to
respond to the letter.
On November 16, 1965, the Union filed a petition for an
election. On December 7, 1965, the parties agreed to a
stipulation for certification upon consent election which
was approved by the Regional Director on December 10,
1965. The appropriate bargaining unit described in the
stipulation was as follows:
All employees employed by the Brandenburg
Telephone Company in or in connection with the
construction, installation, operation and maintenance
of its telephone system in Meade, Hardin, and
Breckenridge Counties, Kentucky, except office
clerical employees, and all guards and supervisors as
22 In Graber Manufacturing Company, Inc, 158 NLRB 244,
246-247, it was stated.
Section 9 (a) of the Act , which makes the representative
chosen by a majority the exclusive bargaining representative
of all, expressly provides that "any individual employee or a
group of employees shall have the right at any time to present
grievances to their employer and to have such grievances
adjusted, without the intervention of the bargaining
representative , as long as the adjustment is not inconsistent
with the terms of a collective - bargaining contract or
agreement then in effect Provided further, That the
bargaining representative has been given opportunity to be
present at such adjustment "
The employees, accordingly, have a right to present their own
grievances to their employer and need not permit the union to talk
for them to their exclusion The employees ' statutorily protected
right to present their own grievances and thus speak for
themselves is undoubtedly a right cherished by many employees
and Respondent 's statement that if the Union became their
representative it would talk to the Employer about their own job
affairs to their exclusion amounted to a threat that they would lose
a substantial benefit
23 International Association of Machinists v N L R B , supra
29 I have examined all the cases cited by the Respondent
is "`Interference is no less interference because it is
accomplished through allurements rather than coercion "'
N L R B v Bailey Co., supra, 279
26 It is the employee's "arguable " response to an employer's
antiunion propaganda which is controlling. "Since it is the policy
of the Act to protect employees in a free choice of bargaining
representative, the law looks to what the listener-employees
reasonably could have inferred from what was said and done by
one authorized to engage in the anti-union preelection campaign "
Hendrix Manufacturing Company v N.L R B, 321 F 2d 100, 104
(C.A 5)
27 This seems to be the sense of the court's remark,
"Statements . in the nature of a threat to prevent unionization
of employees constitute a violation of Section 8(a)(1) of the Act.
This is so even though the statements may not be directly
coercive, if they can be reasonably so construed by the
employee " N L.R B v Electric Steam Radiator Corp , supra,
736
28 Tobin testified that the reply letter was read to him over the
telephone
BRANDENBURG TELEPHONE COMPANY 835
defined in the National Labor Relations Act, as
amended.
The election was conducted on January 14, 1966.
E. Objection 129 and the unfair labor practices related
thereto: The following testimony was adduced in reference
to objection 1, and certain related allegations in the
complaint.
Employee Ray Dean Bullock testified that sometime
between November 15 and 26, 1965, Tobin informed him
that the Union was engaged in organizational activities.
Bullock "wondered who started it."36 Tobin replied that
employees Miles and Aebersold had started the Union and
that if Bullock had signed a card "he wished that [he]
would get it back."31 Tobin said that "the phone company
was a good place to work he wished to keep it that way and
that [Bullock] would have a permanent job32 there from
the time [he] started and that [he] would not be laid off
on rainy days."
Tobin admitted the conversation with Bullock. Tobin
testified that Bullock wanted Tobin "to tell him that he
would be worked everyday and wouldn't be laid off at any
time at all." Tobin replied that he could "not tell him
that." Bullock persisted and Tobin said, "You won't lose
much. We'll treat you right." As the conversation
continued Tobin said, ". . . you know we can't make
changes as long as the union organizing process or the
Union is trying to be organized.... You know somebody is
trying to do that." Bullock asked, "[W]ho is it," Tobin
responded, "I think its Jerry Miles and Aebersold. They
worked on it." Tobin testified that during the conversation
Bullock asked whether he would lose time on rainy days.
Some time later Bullock accosted33 Tobin for a loan of
$3,000 to consolidate all his debts and to buy a new pickup
truck. According to Tobin he responded that "it just
wouldn't do for [him] to loan [Bullock] that kind of
money and the union organizing campaign going on like it
is....
Bullock testified that on January 11 or 12, 1966, as he
was preparing to go out to work from the Brandenburg
parking lot (Tobin fixes the time as January 13, the
morning before the election), Tobin observed that the "big
day is coming up Friday" and asked "how Bullock
stood."34 Bullock responded, "You know about how I
stand." Tobin said, "Well, give me all the help you can."
Tobin testified that he said, "Well, tomorrow is the big day
coming up." Bullock replied, "Yes, it is." Tobin
commented, "Well, I sure hope it turns out all right." To
which Bullock countered, "Well, I do too." According to
Tobin this was the entire conversation.
Larry D. Singleton testified that sometime before the
election in January 1966, Tobin called him into his office
and said, "Son, how long have you been working here?"
Singleton responded that he did not know exactly how long
it had been. Whereupon Tobin said, "You have got a raise
since you have been here, haven't you?" Singleton
answered, "Yes, sir." Tobin said, "You didn't need the
Union to get that for you, did you?" Singleton answered,
"No, sir, I didn't."
According to Tobin he saw Singleton in the hall a few
days after Christmas and asked him to step into his office.
Tobin asked him, "How are you making it?" Bullock
answered, "Well, pretty good." Singleton then said, "I am
going to get married and I am going to need more money."
Tobin said, "Well, you haven't been here but a little while,
have you?" Singleton couldn't remember how long he had
been there, whereupon Tobin said, ". . . it was just this
year and we have given you a raise. You didn't ask for it
and didn't anybody have to help you get it. The Union
didn't help you get it and I imagine you will make it all
right. I wouldn't worry about it."
On January 7, 1965, according to Singleton, Tobin called
him aside and said, "I guess you know the big day is
coming up Friday." Singleton answered, "Yes, sir."
Thereupon Tobin said, "How do you feel about it?"35 or
"What do you think about the Union" or something of that
nature. Singleton said that he didn't know. Before Tobin
left he said, "Well, see what you can do for me." Tobin
places the conversation on January 13, and testified that
he walked up to Singleton and said, "Well, tomorrow is the
big day," Singleton answered, "Yes, sir." Tobin said,
"Well, I hope everything comes out all right." Singleton
responded, "I do too."
Tobin testified that around November 30, 1965, he
visited the Vine Grove branch in response to a request by
Max Ewart transmitted to him through Supervisor Marion
Henderson.36 According to Henderson, Ewart had asked
him a number of questions Henderson had been unable to
answer. Tobin arrived with his daughter, Mary Ann, a
director, about 1 o'clock in the afternoon. Henderson,
Larry Martin, G. T. Lewis, and Ewart were present. After
a few casual remarks Tobin (according to his testimony)
said, "Well, I am here, does anybody want to ask me
anything?" Ewart said, "Well, I am interested in job
security.... I like to be sure I am going to have a job," to
which Tobin responded, "It looks to me like you don't
have to worry about that. It looks to me like your job is
secure enough. You have been here a long time. There is
no reason why you should think you are going to leave....
24 I have considered only the incidents which occurred after
January 14 , 1965 (the date upon which the representation petition
was filed), to determine whether the Union's objections to the
election should be sustained See Goodyear Tire and Rubber
Company, 138 NLRB 453
30I attach no significance to the fact that Bullock may have
asked who started the Union since Tobin, in his speech of
November 8, 1965 , solicited questions from the employees about
union activities . Moreover , Tobin should have known that his
comment would have given rise to Bullock 's question
31 Tobin denied this remark. Because of Tobm's attitude on the
witness stand , his interest in the proceedings, and his appetency
to keep the Union out of the Respondent's establishment, where
there is a substantial conflict between the testimony of Tobin and
other witnesses, I have discredited Tobin I have also considered
the demeanor of the employee witnesses , most of whom testified
under obvious stress, in making this finding
3' Tobin was asked, "Did you or did you not on this occasion
promise Bullock a permanent job9"
A Well, he was really hired as a permanent employee to
start with and I kept telling him not to worry about it
73 It seems reasonable to assume that Bullock visited Tobin in
response to the invitation in Tobin 's speech , to wit " the door
to my office is always open to you "
34 While Bullock seemed uncertain whether Tobin asked him
how he "felt" or "stood," I do not consider that there was such a
variance in the meaning between the two words in the context
used as to cause me to doubt the veracity of Bullock
15 Tobin specifically denied that he had asked Singleton how he
felt about the Union
36 Any findings relating to this incident pertain only to the
objections to the election
298-668 0-69-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is nothing, everything shows that it's all right. I
don't see why you would be worried about that." Tobin
added, "If we all perform, we will have job security and I
don't care what it is or what's going on, anybody that don't
do their lob will not have job security."
Next Ewart said, "Well, I would like to have a classified
job." Tobin responded that the telephone company was
too small to have classified jobs and that everybody
needed to be able to do everything.
Ewart then "brought up something about the closed
shop" to which Tobin responded, "Well, I don't think that
I could agree to a closed shop in this day of being so sure
and trying so hard not to discriminate against the people."
Tobin commented, "The way I see it is it don't make any
difference to me whether they are black, white, red or
yellow, whether they are Democrat, Republican,
Methodist, Baptist, Catholics or what, they can have a job
with us if they do their job right and perform right and I am
not going to discriminate against them." He further stated,
"I am sure not going to agree unless I have to that a man
can't work for us unless he belongs to a union."
Tobin produced a copy of a contract between the Union
and the General Telephone Company in Elizabethtown,
together with a list of the Respondent's employees and the
amount of money each was earning. He laid the contract
on the table and said, "If you boys want to look at it there
you can." The employees examined both the contract and
the list. A comparison disclosed that some of the
Respondent's employees were receiving more than some
of those covered under the contract.
During the discussion Ewart commented to Tobin,
"Well, Mr. Tobin.... you tell us one thing and the Union
tells us another thing. I just don't know who to believe.
Now, who can we believe?" Tobin testified, "I told him
that he had been working for me 2 or 3 years and that he
had quit at one time, he had looked around a few days and
came back and wanted to work again and I hired him back,
talked to him about how he should do and tried to get him
straightened out on not having quite so much temper and I
tried to always answer his questions; that I had never
yarned to him about anything. I always answered him to
the very best of my ability and that I couldn't
see-understand why he would believe somebody that he
had known only a short time in preference to me when he
had that kind of experience with what I told him."
On cross-examination, Tobin testified that he told Ewart
that he "didn't have to have a union to get [pay raises];
that [he] advanced him unusually fast in wages because
he had been a good man and had been a good worker and
he turned out work extra fast ... and that he hadn't had a
union, it hadn't been necessary, that [he, Tobin] tried to
give him what [he] thought he deserved." Tobin also
commented that "they had known [him] for months or
maybe years and they had never found that [he] had ever
told them one thing that wasn't so."
The testimony of other witnesses was in substantial
agreement with that of Tobin except as follows:
Larry Martin testified that after the employees looked at
the differences in wage scales, Tobin "wanted to know
why [they] would want a union." George T. Lewis
testified that Tobin said that "he didn't know what the
Union could do for us that we couldn't do for ourselves."
Tobin testified, ". . . at different times when different
ones would ask me questions and say things to me, if it
came to the point where it was practical to say that I would
say that `I don't believe the Union can do anything for you.
We want to treat you right. We want to do everything for
you that we can. We don't have to be made to do the things
that we can do and we think is right to do."', This
statement was made at his store to a number of the
Respondent's employees and elsewhere. Tobin also said
that he had made statements to employees that "we
couldn't change benefits until this election was over...."
Supervisor Henderson recalled a conversation with
Ewart, in November 1965, of which Ewart testified.
According to Henderson, as Ewart and Lewis approached
him, he heard a remark that the Union had promised to get
them a new winch truck and "they would like to get them
some more benefits, some holidays, more holidays and
sick leave." Henderson joined in the conversation and
said, "[I]n my opinion, the Company had just as much
right to ask to take away any of the benefits if the Union
went in, as they did to ask for more ..."
Henderson also recalled a conversation with Larry
Martin around the first of December, of which Martin
testified. According to Henderson, Martin told him he had
signed a union authorization card. Henderson remarked,
"I didn't care whether he did or not, I didn't think it would
do him any good anyhow."
I find that apropos of the enviroment created by the
Respondent's antiunion campaign, the Respondent
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act and
thereby violated Section 8(a)(1) in the following particulars,
to Wit: 37
(1) Tobin created an impression of unlawful
surveillance of employees' protected concerted activities
in the latter part of November 1965, in the conversation
with employee Bullock by revealing to him the names of
employees who were purported to be union sponsors.
(2) Tobin, during the conversation referred to above,
unlawfully solicited Bullock's withdrawal from the Union
by telling Bullock that he "wished" that Bullock would
"get" his union card back if he had signed one.
(3) Tobin, during the conversation referred to above,
unlawfully promised a benefit to employee Bullock, to wit:
that he "would have a permanent job"; he "would not be
laid off on rainy days"; and he would be treated "right."
(4) Tobin, in the first part of January 1966, prior to the
election, unlawfully interrogated employee Bullock as to
how he stood in reference to the union election and
unlawfully solicited his support for the Respondent by his
statement, ". . . give me all the help you can."
(5) Tobin, sometime in January 1966, before the
election, unlawfully called employee Larry Singleton into
his office and impressed upon him the futility of selecting
the Union as his bargaining agent by stating to him that he
did not need the assistance of the Union to receive benefits
from the Respondent and that he received a raise without
the Union's help.
(6) Tobin, during the incident referred to above,
promised Singleton a benefit, to wit: that Singleton would
"make it all right." (The latter was in reference to the
additional financial burden which would be occasioned by
Singleton's approaching marriage.)
(7) Tobin, in January 1966, prior to the election,
unlawfully interrogated employee Singleton as to what he
felt and thought about the Union and unlawfully solicited
3' Findings 8, 9, 10, 11, and 14 are confined to the objections to
the election
BRANDENBURG TELEPHONE COMPANY
his support by his statement, "... see what you can do for
me."
(8) Tobin, at the Vine Grove meeting of November 30,
1965, promised employee Ewart a benefit in the nature of
job security when, in response to Ewart's inquiry, he
stated, ". . . you don't have to worry about that. It looks to
me like your job is secure enough."
(9) Tobin, at the Vine Grove meeting referred to above,
unlawfully interrogated employees when he asked
employees why they wanted a union.
(10) Tobin, at the Vine Grove meeting referred to above,
interfered with employees' organizational rights when he
advised employees he did not know what the Union could
do for employees which they could not do for themselves.
(11) Tobin, at the Vine Grove meeting referred to above,
impressed employees with the futility of choosing the
Union as a bargaining agent in that he said that they did
not need the Union to get a pay raise.
(12) Tobin, during the election campaign, advised
employees of the futility of choosing the Union as
bargaining agent by advising employees: "I don't believe
the Union can do anything for you. We want to treat you
right. We want to do everything for you that we can. We
don't have to be made to do the things that we can do and
we think is right to do."
(13) Henderson created the impression that the
Respondent would withdraw benefits presently enjoyed
from employees if they selected a union as their bargaining
agent when he told employee Ewart, in November 1965,
that the Respondent had "just as much right to ask to take
away any of the benefits if the Union went in, as the
[Union] did to ask for more."
(14) Henderson impressed employee Larry Martin of
the futility of selecting a union by his statement to him
around the first of December 1965, that he did not "think it
would do him any good" to have signed a union card.$3
Each of the foregoing findings have not been considered
in isolation but have been weighed upon the basis of the
Respondent's entire course of conduct and evolved from
the record as a whole.
F. Objection 2 and the unfair labor practices related
thereto: During the election campaign, the Respondent
sent a series of letters to the employees under the
signature of J. B. Tobin, manager, which letters were
introduced to support allegations in objection 2 and
certain allegations of the complaint. The letters will be
considered in their chronological order.
The letter of November 23, 1965: In the letter of
November 23, 1965, Tobin advised the employees that the
Union had filed a petition for an election and that he
thought it "only fair" that he tell the employees "exactly
how we feel on the subject of unions, and the attempt of
these troublemakers of the Electrical Workers Union to
come in here and organize our employees." Tobin warned,
"WE DO NOT WANT A UNION AT BRANDENBURG
TELEPHONE COMPANY!! We intend to oppose the
efforts of Electrical Workers Local 369 to organize our
employees by every lawful means available to us. It will
always be a policy of this company to resist the efforts of
outside troublemakers, particularly when their main
purpose is to get their hands in your pockets and your pay
checks for union dues, plus initiation fees, fines and
assessments." Tobin asserted that it was the
Respondent's "sincere belief that a union can do nothing
for you that you can not do for yourself, or that this
837
company will do for you voluntarily," that the "Union can
hurt you more than it can help you," and that it was "bad
for both the Company and the employees." In the letter
was expressed the hope that the employees would vote
against the Union. The employees were reminded that
they would be required to pay dues and that "unions can
cost you money in other ways." Tobin rhetorically queried,
"Do you understand that if you vote the Union in, you will
be giving up the right to speak for yourself in all matters
pertaining to your employment and putting in the hands of
these outsiders the sole right to speak for you, and thus
putting yourself at their mercy?" Tobin pointed out that
the Union "can take you out on strike as they did the
employees of the telephone company in Glasgow,
Kentucky, in June of this year" and, if they do, "you can
not draw unemployment compensation and the Company
can permanently replace any striking employee with a
permanent replacement." Tobin again reminded the
employees that it was the Respondent's belief that the
Union was "bad" for the employees and that it would be a
"big mistake" for the employees to "vote this union in."
The letter ended with the statement "If you have any
questions about this union matter at anytime which you
would like to discuss with me, I hope you will not hesitate
to see me. I will welcome the opportunity to talk to you
about this subject and to answer any of your questions."
The letter of December 8, 1965: In the letter of
December 8, 1965, Tobin informed the employees that the
Respondent had agreed that the "NLRB may hold an
election on Friday, January 14, 1966." Tobin warned the
employees that "[e]veryone that works at Brandenburg
Telephone Company, whether they are eligible to vote in
the election or not, can be hurt by the kind of trouble the
electric workers could cause if they win this election."
Tobin pointed out that the Respondent would, for this
reason, mail copies of its letters to all employees. In the
letter Tobin explained, "You will now have to decide
whether or not you want this union to come in here and
stand between you and me and the other members of
management in our relationship of each other." The letter
refers to the Union's "main interest in life" as trying "to
get their hands in your pockets for initiation fees, union
dues, fines, assessments, and other charges." While noting
that he understood that the Union had "made a lot of false
promises," Tobin wrote, "I never have made you a
promise I couldn't keep. I never have lied to you. I don't
intend to do so now." Tobin ended his appeal with the
thought that he had "every confidence" in the employees
"own good judgment" that they would vote "NO" on
January 14, 1966.
The letter of December 14, 1965: In the letter of
December 14, 1965, Tobin reminded the employees in
capital letters that if the Union won the election, "THE
LAW SAYS VERY CLEARLY THAT WE WOULD NOT
HAVE TO AGREE TO ANY OF THE UNION'S
DEMANDS OR MAKE ANY CONCESSIONS TO THE
UNION." Tobin pointed out that collective bargaining was
a "TWO WAY STREFT" and that "the Company has just
as much right under the law to make demands on the
Union as the Union has to make demands on the Company
and this includes the right to demand reductions in
benefits if we felt that such reductions are necessary or
justified in light of the union 's demands on us." Tobin
wrote that the only way the Union could force the
Company to agree to its demands was by strike and that its
38 Cf Kayser-Roth Hosiery Co , Inc , 158 NLRB 28.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawyers had told it that if a strike occurred the Company
had a right, under the law, to operate its business with
replacement employees. Tobin made clear that it would be
the Respondent's "intention in the event of strike to hire
permanent replacements for strikers." Employees were
reminded that "strikers can not draw unemployment
compensation in Kentucky." Tobin commented, "I can tell
you this, union or no union, strike or no strike, we could
not and we would not agree to anything with the Electrical
Workers Union or any other union which would put
Brandenburg Telephone Company in a position where we
could not give our customers good, prompt, efficient
sex vice or operate this company properly and efficiently."
"There is only one thing the professional union dues
collectors and organizers can guarantee you, and that is
TROUBLE. Union organizers have to have TROUBLE in
order to justify asking you to pay them initiation fees,
dues, fines and assessments. If there isn't any trouble, the
union organizers will usually manufacture the same. They
are experts at causing trouble." The letter ended with the
paragraph: "Don't you think it is better to be safe than
sorry. The only sure way for you to be safe-thc only way
for you to be sure that the Electrical Workers Union won't
cause any trouble here-is for you to vote 'NO' on Friday,
January 14."
The letter of December 27, 1965- The letter of
December 27, ]965, commenced with the challenge,
"Since we all know that the Electrical Workers Union
would want to get their hands in your pockets and in your
pay checks, and could also take you out on strike if you
vote for them on January 14, don't you think you should
ask yourself `How much could it cost me?' and `Can I
afford it?' if you are thinking about `buying' this union in
the NLRB election on January 14?"
After discussing the union's initiation fees, dues, fines,
and assessments, Tobin commented, "I can guarantee you
that if the Electrical Workers Union is voted in at
Brandenburg Telephone Company, ITEM NO. 1 on their
list of contract demands will be for a union shop and
check-off. Under a union shop contract, all employees are
required to belong to the Union and pay initiation fees and
monthly dues to the Union in order to hold their jobs.
Under a check-off, the employer is required to deduct
initiation fees and dues from the employees' wages and
pay them over to the Union." Tobin pointed out that if the
employees were on strike, they would not draw wages or
unemployment compensation, that there would be no
obligation of the Company to continue in effect any of the
employees' employment benefits such as paid vacations,
paid holidays, pension plan, hospital and medical
insurance, and paid sick leave. Tobin wrote, "Most serious
of all, however, is the fact that a strike could cost yourjob.
The law is very clear that Brandenburg Telephone
Company would have the right to hire permanent
replacements for strikers, and once a striker has been
permanently replaced, he ceases to be an employee. To
put it plain, once a striker is permanently replaced, he
loses his job."
Tobin enclosed a leaflet showing how long it would take
an employee "just to get even" in the event of strike.
The letter ended with the admonition "PLAY IT SAFE,
PROTECT WHAT YOU ALREADY HAVE, AND VOTE
`NO' ON JANUARY 14."
The letter of January 3, 1966. The January 3, 1966,
letter was on the subject of job security. Tobin told the
employees that the Union could not guarantee "job
security." "Job security depends on how well we serve our
customers. It depends on all of us working together-not
pulling apart, as these outside union troublemakers could
cause us to do." Tobin said that there was job security at
the Company and just as the employees did not need any
union to get it for them, they "don't need to pay initiation
fees, dues, fines and assessments to any union to help keep
it."
Tobin commented, "Doesn't it make you just a little
nervous to think how much power George `Legs' Wode
and his union would have over you if they were voted in at
Brandenburg Telephone Company? Do you think your job
would really be very secure with them having the power of
economic life and death over you? Who would you rather
trust when it comes to `fob security'-'Legs' Wode or J. D.
Tobin?"
Tobin listed employee benefits and remarked, "Here
again, you didn't have to pay any outsiders to come in here
and talk with us about giving you these benefits. You don't
need to pay outsiders to help you keep them." The letter
ended with this paragraph, "Don't you think it is better to
be safe than sorry? Do you want these outside
troublemakers and professional union dues collectors of
the Electrical Workers Union to come in here and possibly
disrupt this organization and jeopardize your steady
employment? The best way to play it safe-in fact the only
way to play it safe is for you to vote 'NO' in the NLRB
election on Friday, January 14."
The letter of January 5, 1966: In the letter of January 5,
1966, Tobin pointed out that the Union' s business
manager, George "Legs" Wode, according to the Union's
bylaws was "a DICTATOR with a death-grip on the
union's members." The letter also commented about the
Union's find procedures. At the bottom of the letter was
printed "BE SMART I PROTECT WHAT YOU HAVE!!
VOTE,`NO' ON JANUARY 14TH ! ! !"
The letter of January 8, 1966: The letter of January 8,
1966, was composed of questions and answers. Tobin
responded to a question , "No, the Company will not cut
wages or cut, any employees benefits if the Union loses the
election. Neither will the Company discharge anyone
because at one time they were in favor of the Union. I will
give you my personal guarantee and word of honor on this.
We aren't looking for reasons or excuses to fire people. On
the contrary we have always done our best to provide
steady work for you and this hasn't always been easy to
do." In answer to another question , Tobin said, "Yes, you
certainly do give up the right to speak for yourself if the
Union wins the election next Friday. We would have to
deal only with the Union about matters concerning your
employment and we could no longer talk with you
personally about them, no matter how much you as an
individual might want to talk with us about them." The
letter further implied that the union business manager
would not let the employees have "anything to say about
your affairs if this union is voted in ." In answer to a
question as to what wage increases and other benefits the
employee would receive if the Union won, Tobin replied,
"ABSOLUTELY NONE !" Tobin further commented, if
. . the ... Union wins the election, your wages and all
other benefits would be frozen under the law, while the
Company and Union were negotiating , and negotiations
sometimes extend over a period of many months. The only
right the Union would gain under the law by winning an
election is the right to sit down and talk with us-to
`bargain collectively,' as the law puts it. We would not
have to agree to any of the union 's demands , and I will tell
BRANDENBURG TELEPHONE COMPANY 839
you now, that we would have no intention of agreeing to
any demands which are unreasonable, or which would
keep us from giving our customers good service, or which
would put us in a position where we could not operate
Brandenburg Telephone Company efficiently and
profitably. The only weapon the Union has to try to make us
agree to any such demands would be to take you out on
strike."Tobin warned the employees that "We would have
Just as much right under the law to demand a reduction in
benefits as the Union would have to demand that we
increase them. From what I have heard of the Electrical
Workers, I have no doubt they would agree to a reduction
in benefits if the Company would agree to a union shop,
where everyone had to belong to the Union and pay dues
and initiation fees to the Union in order to work at
Brandenburg Telephone Co." Employees were reminded
that if the Electrical Workers took them out on strike, they
would lose their wages during the strike and could lose
their jobs if the Company hired permanent replacements
for them. Employees were referred to the Glasgow strike
as proof of such statement. Tobin asserted that "the truth
is that whenever the union troublemakers want a strike
vote they have their own ways and means of getting one."
The letter ended with the answer: "THE ONLY WAY
YOU CAN BE SURE the Electrical Workers Union
doesn't cause any trouble here is to vote against the Union
in the NLRB election next Friday...."
The letter of January 12, 1966• In the January 12, 1966,
letter, Tobin again reminded the employees, "If the Union
wins this election, your affairs will then be in the Union's
hands, and you would no longer have the right to speak for
yourself in matters pertaining to your employment. The
Union would do your talking for you from that point on."
Tobin emphasized again that the only thing which the
Union could guarantee the employees is 'TROUBLE."
Tobin made clear, "I believe a union would be a bad
influence and could prevent us from working together. I
honestly feel that you would be making a great personal
mistake by voting the Union in. I sincerely feel, that you
would be doing yourself and the Company an injustice. In
all the years we have been in business , we have tried to
show you by deeds, and not just words, that if this business
is successful we want you to share in that success. For
this, the benefits which you now enjoy as an employee of
Brandenburg Telephone Company is certainly pioof of
this." Tobin defined the issue before the employees in
these words, ". . . you will have an opportunity on Friday
to choose whether you want your affairs run by the Union,
or whether you have confidence that we will always strive
to voluntarily give you the best possible employment
benefits, wage and working conditions, without your
having to strike or walk a picket line for them, or pay any
initiation fees, dues, fines and assessments to outsiders to
merely come in here and talk with us about them." The
letter ended with the paragraph: "WE DO NOT WANT
THE ELECTRICAL WORKERS IN BRANDENBURG
TELEPHONE COMPANY. When you go into the voting
booth on Friday, I hope you will vote against the Electrical
Workers by making `X' in the right hand square on the
ballot under the word `NO."'
A postscript was added-
"I believe the enclosed newspaper article will be of
interest and importance to you. It tells what happened in
Glasgow. Don't let this happen here! !" The newspaper
article dated July 29, 1965, described acts of violence
which occurred at the South Central Rural Telephone
Cooperative, Inc., Glasgow, Kentucky, while a strike was
in progress. The article contained a picture of shattered
door glass.39
I view the foregoing letters as extensions of Tobin's
remarks of November 8, 1965. I find that these letters,
which are coercive in character for the same reasons as
those referred to in connection with Tobin's speech of
November 8, 1965, encroach upon employee rights
guaranteed by Section 7 of the Act and thus are violative
of Section 8(a)(1) of the Act.90
G. During the election campaign period, the Employer
delivered pay checks to employees in envelopes upon
which was printed election propaganda One envelope
bore the following printed matter:
HAVE THE UNION ORGANIZERS FOR ELECTRICAL
WORKERS UNION TOLD YOU THAT IF THEY TAKE YOU
OUT ON STRIKE, THE COMPANY CAN HIRE PERMANENT
REPLACEMENTS FOR ALL STRIKERS? and WHAT DOES
THE ELECTRICAL WORKERS UNION DO FOR STRIKERS
WHO HAVE BEEN PERMANENTLY REPLACED?
Another envelope revealed:
THE PAYCHECK IN THIS ENVELOPE INCLUDES YOUR
HOLIDAY PAY FOR THANKSGIVING DAY, YOU DIDN'T
NEED A UNION TO HELP YOU GET HOLIDAY PAY ! YOU
DON'T NEED TO PAY A UNION TO HELP YOU KEEP IT ! !
A third envelope disclosed this wording:
IF YOU HAD BEEN ON STRIKE LAST WEEK , YOU WOULD
NOT HAVE DRAWN THIS PAYCHECK OR ANY
UNEMPLOYMENT COMPENSATION BENEFITS. HOW
MUCH WOULD THE ELECTRICAL WORKERS UNION
HAVE PAID YOU FOR WALKING THE PICKET LINE? BE
SMART!! VOTE FOR YOURSELF!! VOTE `NO' ON
JANUARY 14!!!
The wording on a fourth envelope advised the employees:
THIS ENVELOPE CONTAINS YOUR PAYCHECK, IT ALSO
CONTAINS AN IMPORTANT MESSAGE TO YOU.
The important message was as follows:
THE MONEY IN THIS ENVELOPE IS YOURS. IT AMOUNTS
TO $5.90 PLUS 1% OF YOUR GROSS WAGES FOR
DECEMBER . IF THE ELECTRICAL WORKERS UNION
WINS THE ELECTION TODAY, THEY COULD DEMAND
THAT WE AGREE TO DEDUCT UNION DUES AT THIS
RATE FROM YOUR PAY EACH MONTH AND SEND IT TO
THEM. YOU CAN KEEP THE ELECTRICAL WORKERS
UNION FROM GETTING THEIR HANDS IN YOUR POCKET
AND IN YOUR PAYCHECKS BY VOTING AGAINST THEM
'" On the news article was printed in a box, "THIS
HAPPENED AT GLASGOW i 1 DON'T LET IT HAPPEN AT
BRANDENBURG I I VOTE `NO'ON FRIDAY, JANUARY 14 1 1 t"
a" The following excerpt from The Trane Company, 137 NLRB
1506, 1510, is singularly apposite and supports the finding made
herein
Thus, the letters to employees conveyed the message that
the Employer had a unilaterally established wage and
employee benefit policy, that benefits had been accorded in
the past and would be accorded in the future on the basis of
this policy without the intervention of a union, that the policy
would not be changed even if a union were selected to
represent the employees, and therefore the selection of such
a representative was an unnecessary expense and futile
Such an attitude is not inconsistent with good-faith
bargaining, it is also reasonably calculated to have a coercive
effect upon employees who, no more than the generality of
mankind, are inclined to indulge in futile acts There is no
more effective way to dissuade employees from voting for a
collective-bargaining representative than to tell them that
their votes for such a representative will avail them nothing
[Emphasis supplied J
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IN THE ELECTION TODAY. TO PROTECT YOUR MONEY
AND THE RIGHT TO SPEAK FOR YOURSELF-PLAY IT
SAFE.
And in large red letters:
VOTE'NO'TODAY!!!
The gimmick of fictitiously deducting dues from the
employees' paychecks may not be disassociated from the
Respondent's overall campaign strategy. The fictitious
dues deduction was an additional means of impressing
Respondent's employees with the futility of choosing the
Union as a bargaining agent since the charge therefore
would constitute, in reality, a payment for "nothing." That
this was the Respondent's purpose appears from messages
printed on other paycheck envelopes; i.e. "You didn't
need a union to help you get holiday pay! You don't need
to pay a union to keep it !" The constant reminder that the
employees did not need a labor union to share in the
Respondent's openhandedness was tantamount to a
promise that the Respondent's hands would remain
outstretched and open if the employees rejected the Union
but that its clenched fists would appear if the Union
emerged victorious.
The fictitious union dues deductions, as well as the
messages appearing on the employees' paycheck
envelopes, dramatized the futility of choosing the Union
and the needless expense involved in such choice and was
calculated to have a coercive effect on the Respondent's
employees. The Respondent's conduct in this regard
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act and
constituted a violation of Section 8(a)(1) of the Act. See
Crown Laundry & Dry Cleaners, Inc., 160 NLRB 746,
Peachtree City Warehouse, Inc., 158 NLRB 1031, The
Trane Company, 137 NLRB 1506.
H. Objection 4 and the unfair labor practices related
thereto: In 1957 the Respondent inaugurated a bonus
policy which provided for paying a Christmas bonus to its
employees in the amounts of $25 for those with 3 or more
years of service, $15 for those with 2 to 3 years of service,
and $10 for those with less than 2 years of service with the
Company.
According to Tobin in the summer of 1965, prior to the
advent of the Union, after seeing the Company's figures
for the month, Tobin remarked to Supervisors Brown and
Wardrip, "If we can keep this up I would like to give
everybody 2 weeks extra pay at Christmas time." In the
latter part of November 1965, Tobin decided to grant the
employees an extra Christmas bonus of 2 weeks' straight-
time pay, which would be in addition to the regular
Christmas bonus paid in the past. Tobin stated his reasons
for giving the extra bonus as follows:
... our men had been doing extra well, had been
doing a good job. We had done a lot of construction.
We had completely finished our Battletown exchange,
cut it over to one and four party service. We finished
our Payneville exchange. We done a lot of work in the
Irvington exchange, and we done some little bit in the
Brandenburg exchange. We had made good money
that year in `65. I felt like we could afford to do it, so
we did it or were going to do it.
Tobin consulted the Respondent's counsel as to whether
he could grant the extra bonus to the voting unit as he
wanted to do. Tobin, referring to his counsel, testified,
"You said we could give it to all employees other than the
voting unit if we wanted to, but to give it to them and say
nothing about it and not advertise it, not a to-do about it,
not say anything to any of them about it. Just give it to
them and let that be all of it."
Extra bonus checks together with the regular bonus
checks were delivered to employees who performed work
outside the voting unit. Employees in the voting unit
received only the regular bonus. No publicity was given to
the distribution. On the envelopes in which the bonus was
distributed was printed "Merry Christmas."
The total amount of extra bonus actually paid was
$3,254. It would have amounted to $7,407 if the extra
bonus had been paid to voting unit employees. According
to Tobin the bonus "was only going to cost the Company
half [$3,703.50] because half was going to come out of the
income tax."4'
The Respondent's operating and surplus or margin
analysis shows for net income or margin, 1964, $74,723.96;
1965, $81,629.46; unappropriated earned surplus
beginning 1965, $142,156.08; end of 1965, $222,235.54.
Based upon these figures there appears little doubt that
the Respondent could have paid the extra bonus in 1964
without imperiling the financial stability of the Company.
Thus doubt exists whether the Company's improved
financial condition was the real motive for Tobin's
Christmas generosity.
On the day when the extra Christmas bonus was
distributed, in the presence of employee Lewis, employee
Ewart asked Supervisor Henderson, "What is this about
the Christmas bonus?" Henderson replied, "Mr. Tobin
had told me earlier that his attorney, Mr. Smith, had
advised him not to give the Christmas bonus to the people
other than the office personnel and supervisors."
Henderson commented further that Smith had advised
Tobin not to give the bonus "because it might be held
possibly against us, it might be against the law to do this."
According to the credible testimony of employee Martin,
Henderson also said that "if it hadn't been for the Union,
what was going with the Union ... if it hadn't been for
that, why, [the employees] might have all gotten ... the
extra bonus."
Ewart became angry when he did not receive the extra
bonus and returned the bonus he did receive to the
Company. That evening Ewart and Lewis paid Henderson
a visit. Ewart informed Henderson that "he had been to
see a couple of people, that he realized that Mr. Tobin was
right, that he couldn't give employees under the Union
restrictions a bonus and he said he wasn't going to vote for
the Union. He didn't think it was going to get in anyhow.
On the next Monday morning Ewart told Henderson that
he wanted Henderson to ask Tobin to talk with him. Tobin
came to Vine Grove and talked to Ewart. After each had
observed that the incident had caused each to "show out a
little bit," Tobin remarked, according to his testimony, "I
guess we are even so let's just start over now." Ewart
volunteered, "Well, I'm glad you did and I hope you do."
Ewart continued, "I think they are going to lose it
anyway." Whereupon Tobin said, "Well, that's all right, I
hope that you don't vote for it but that's your privilege."
The conversation then drifted to other matters.
The regular bonus check was returned to Ewart. Ewart
credibly testified that Tobin explained that he would have
"' Tobin testified, " if you can cut it half in two when the
Government is going to give half, it makes it easier "
BRANDENBURG TELEPHONE COMPANY
liked to have given the extra bonus but "he couldn't do it
on account of the election."
Tobin was unalterably dedicated to the proposition that
the Union should be barred from the Respondent's
establishment; he vigorously participated in the pursuit of
ways and means to defeat the Union and to discourage the
employees from selecting the Union as their bargaining
agent. The "itch," which beset him, motivated him to
search for devices and gimmicks to defeat the Union. His
speech of November 8 is an example. Tobin's paternal
attitude, his remarks, his letters, his behavior as revealed
on the witness stand, and his entire campaign stance
convinces me that the Christmas bonus was conceived and
proffered as a means of thwarting the employees' choice of
a bargaining representative. Had his scheme been
accommodated, voting unit employees would have
received the extra Christmas bonus, but Tobin's scheme
ran counter to the advice of the Respondent's counsel. To
overcome this obstacle a new machination was effected,
which, it is contended, falls within the letter of the law.
A part of the new scheme was to avoid an honest
disclosure to Respondent's employees of what was
occurring. Employees were left to speculate as to why
some employees received the bonus and others not. When
the matter came to light, several employees were told that
"if it hadn't been for the Union" voting unit employees
also would have received the bonus. Thus the Employer
placed the onus for the withholding of the extra bonus
upon the Union and its representatives. By shifting the
onus for its not instituting the purported bonus to the
Union, the Respondent sought to disparage and undermine
the Union by creating the impression that the Union stood
in the way of the voting unit employees getting the extra
bonus. Moreover, the Respondent did nothing to dissipate
the thought that, if the Union were defeated, the extra
bonus would be forthcoming. The Respondent deliberately
allowed the situation to stand obscured so that maximum
antiunion reaction could develop.
The granting in part and the withholding in part of the
extra Christmas bonus was a practical lesson in what the
employees could expect by way of the voluntary bestowal
of benefits, if the Union were rejected, a lesson which the
Respondent sought to teach through its election
propaganda. In coercive effect there is little difference
between what was contrived by the Respondent in the
instant case and in American Paper & Supply Company,
Container Division , 159 NLRB 1243, 1244.42
The Respondent's withholding of extra bonus payments
to voting unit employees was calculated to interfere with
and discourage the employees' choice of the Union as their
union in its efforts to become the bargaining
representative and was violative of Section 8(a)(1) of the
Act. Cf. McCormick Longmeadow Stone Co., Inc., 158
NLRB 1237. Likewise Henderson's statement that if it
hadn't been for the Union, voting unit employees would
42 The Board, in American Paper & Supply Company,
Container Division, said,
The natural effect of the announcement was to convince
the employees that they did not need a union in order to
obtain wage increases or other improvements in their
conditions of employment Moreover, by shifting to the Union
the onus for its not instituting the purported planned wage
increase , the Respondent sought to disparage and undermine
the Union by carrying the impression that the Union stood in
the way of the employees in getting a wage increase Thus,
Respondent held out to the employees a benefit they would
be receiving but for the Union
841
have received the extra bonus, and Tobin's remark to
Ewart that he would have liked to have given the extra
bonuses but "he couldn't do it on account of the election,"
interfered with employee rights guaranteed by Section 7 of
the Act and were in violation of Section 8(a)(1) of the Act.
American Paper & Supply Company, Container Division,
supra.
1. Having found that the Respondent engaged in
violations of Section 8(a)(1) of the Act between the date of
filing the petition for the election and the date of the
election, I find that the Respondent unlawfully interfered
with the employees' exercise of a free choice for or against
a bargaining representative. "Conduct violative of Section
8(a)(1) is a fortiori conduct which interferes with the
exercise of free choice in an election." Dal-Tex Optical
Company, Inc., 137 NLRB 1782,1786.
Had the conduct of the Respondent described above
been less than violative of Section 8(a)(1) of the Act, I
would nevertheless have found unlawful interference with
the election.43 The activities of the Respondent, by its
conduct described above, lowered the standard of
campaigning to the point where the uninhibited desires of
the employees could not be determined in the election.
The Respondent injected itself into the campaign to the
point where the laboratory conditions imposed by the
Board44 necessary for the conduct of a free election were
destroyed. The Respondent obviously mistook its role.
Representative elections are primarily for employees and
not for employers.45 The Employer's interest and his great
concern are "very unsubstantial ." N.L.R.B. v. National
Mineral Company, 134 F.2d 424, 426 (C.A. 7). Moreover,
the issue which was to have been decided was whether on
the basis of the employees' judgment the Union involved
"will, if it achieves majority status and is accorded its
statutory role as the employees' representative, be able to
represent employees effectively in light of the existing
economic realities." Brunswick Corporation, 147 NLRB
428, 433. As stated in N.L.R.B. v. Sunbeam Electric
Manufacturing Co., 133 F.2d 856, 860 (C.A. 7), "The issue
was whom would the employees have for their bargaining
agent ." The issue which was developed by the Respondent
was whether the employees should be represented by the
Union or Tobin. Thus, the Respondent created a false
issue, for the employees could not choose Tobin to
represent them. Cf. N.L.R.B. v. Sunbeam Electric
Manufacturing Co., supra, 860.
The Respondent's injection of itself in the election
interfered with the employees' right to freely chose a
bargaining representative. In N.L.R.B. v. Kentucky
Utilities Company, 182 F.2d 810, 812 (C.A. 6), the court
cited with approval the following language from N.L.R.B.
v. Sunbeam Electric Manufacturing Co., supra, 860.
Who is to represent the employees as bargaining
agent and the manner of selection are matters which
belong exclusively to the employees. The statute has
49 " in the appraisal by the Board of the bases for refusing to
certify an election deemed contaminated , it is not required to rely
only on conduct which would qualify as an unfair labor practice
under Section 158 of the Act Cf Foreman & Clark, Inc v
N L R B, 215 F 2d 396, 409-410 (9 Cir 1954), cert den. 348 U S
887, 75 S Ct 207, 99 L Ed 697 "N L R B. v Clearfield Cheese Co ,
322 F 2d 89 (C A 3)
44 See General Shoe Corporation, 77 NLRB 124
45 "It is the agent of the employees that is being chosen, and
not the agent of the employer " N L R B v National Mineral
Company, 134 F 2d 424,426 (C A 7).
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made it so, and it is the duty of the employer to keep
hands-off and maintain a strictly neutral attitude.
Moreover, rather than to have submitted only objective
considerations to its employees, the Respondent dwelt
upon its subjective reaction to the employees' future
choice of the Union by creating an aura of fear in respect
to what the employees might expect by way of reprisals
from the Respondent if they chose the Union. The
Respondent made clear that the Union would not be able
to represent employees effectively because it would not
give the Union a fair chance to succeed as a bargaining
representative. Tobin wrote the employees that the
Respondent would "resist the efforts of outside trouble
makers."
I find that by reason of unlawful interference the
election, conducted on January 14, 1966, should be set
aside and held for naught.46
J. The Showing of Interest: Fifteen employees signed
seemingly valid union designation cards on November 5
and 6, 1965. The demand for recognition and bargaining
was served on November 10, 1965. On that date 27 eligible
voters were in the unit which the parties had agreed upon
as appropriate in the stipulation for certification upon
consent election executed by the parties and approved by
the Regional Director. I find that such unit is appropriate.
The Respondent claims that the 10 cards which were
signed at the Ritz Restaurant are invalid for the purpose of
establishing majority interest . To prove this point the
Respondent called as witnesses several employees who
signed cards at the Ritz Restaurant. Their pertinent
testimony is summarized below:
Jack Simmons: Simmons testified that Union
Representative Reesor said that "the cards had to have 51
percent for an election to be held for the Union to
represent the men." Simmons read the card before
signing.
Lee Parr Ktng: Lee Parr King testified that he heard
Reesor say that "we had to have the majority signed before
they could do anything. We had-they had to have 51
percent signed to petition for an election." King read the
card before signing.
Russel Vandiver: Russel Vandiver testified that Reesor
said that "we had to have 51 percent ... [b]efore they
could do anything to have an election...." Vandiver said
he did not remember the exact words. Vandiver read the
card before signing.
Henry Duncan. Henry Duncan testified, "Well, I wasn't
paying too much attention when they were talking. He was
talking about the cards, you know, and he wanted us to
sign the cards to get us an election."
General Counsel' s witness Martin, who attended the
meeting at the Ritz Restaurant, testified that Reesor "told
us that these cards were not for, to get the Union in, but
were for the Union to represent us to get an election to get
the Union," and that "[t]here wasn't anything they could
do until after the election."
Upon the basis of the foregoing testimony, which
preponderates, I am of the opinion that the 10 employees
who signed union designation cards at the Ritz Restaurant,
signed upon oral representations that such cards would
not be used other than for election purposes, although it
was not made plain to the employees that the cards would
not be used for the purpose unambiguously set forth on the
card. While it is my view that signed designation cards are
the best evidence of the signatories' intent, absent a
showing of fraud or coercion, nevertheless, I deem myself
bound by Board precedent which, if my interpretation is
not in error, would require a holding that the 10 cards may
not be counted to establish the Union's majority status.
See Jefferson Wire and Cable Corp., 159 NLRB 1384.
Thus, I find that the General Counsel has not established
that at all times since November 6, 1965, a majority of the
employees in the unit described above had designated or
selected the Union as their exclusive bargaining agent for
the purposes of collective bargaining with the Respondent
as alleged in the complaint. Accordingly, I recommend the
dismissal of those allegations in the complaint alleging
violations of Section 8(a)(5) of the Act.
K. Since the Respondent was not obligated to bargain
with the Union on and after November 6, 1965, it is
recommended that paragraph 9(d) of the complaint be
dismissed, to wit:
Since on or about May 1, 1966, the Respondent
unilaterally granted wage increases to its employees
without bargaining with the Union, for the purpose of
undermining the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations set forth
in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
The Respondent's wrongful withholding of 1965 extra
Christmas bonus payments caused employees in the
voting unit to be deprived of bonuses which had been
intended for them. To rectify this situation, I recommend
that the Respondent pay each employee within the voting
unit , who was on Respondent's payroll at the time the
bonus was paid, a bonus equal to that which he would have
received had not the Respondent unlawfully withheld such
bonus from him. In this manner, the effects of the
Respondent's unfair labor practices may be dissipated and
the Respondent will be dissuaded from utilizing the
withholding of bonuses for the purpose of demonstrating to
its employees the futility of choosing a bargaining agent
and the advantages in respect to rousing its generosity by
rejecting the Union.
Furthermore, in accordance with the Board's decision in
H. W. Elson Bottling Company, 155 NLRB 714, it is
recommended that the Union be given an opportunity to
present its views to the voting unit employees assembled
on company time and premises. It is further recommended
that, upon the request of the Union, Respondent shall
make available to the Union and its representatives at a
mutually agreeable time within 3 months of the
Recommended Order herein, suitable facilities such as are
customarily used for employee meetings so that the Union
46 "If an election were won by the employer through illegal a right to have such election set aside " N L R B v Plaskolite,
conduct and in violation of law, the Union was wronged and it had Inc , 309 F 2d 788, 790 (C A 6)
BRANDENBURG TELEPHONE COMPANY
may speak to the voting unit employees assembled on
company time. Such facility shall be available for one 1-
hour meeting.
It is further recommended that, upon the request of the
Union made within 1 month from the date of the
Recommended Order herein, the Respondent immediately
grant the Union and its representatives reasonable access
for a 3-month period to its bulletin boards and all places
where notices to employees are customarily posted.
Conclusions of Law
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By interfering with , restraining , and coercing
employees in the exercise of their rights guaranteed them
843
by Section 7 of the Act , Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The Respondent unlawfully interfered with the
representation election conducted on January 14, 1966;
said election should be vacated and a second election
directed.
5. All employees employed by Brandenburg Telephone
Company in or in connection with the construction,
installation , operation , and maintenance of its telephone
system in Meade, Hardin , and Breckenridge Counties,
Kentucky , except office clerical employees, and all guards
and supervisors as defined in the National Labor Relations
Act, as amended , constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9 (b) of the Act, as amended.
[Recommended Order omitted from publication.]