Commercial Letter, Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1972

200 N.L.R.B. 534 (N.L.R.B. 1972)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commercial Letter, Inc. and Lithographers and Pho-
toengravers International Union, Local 252,
AFL-CIO. Case 14-CA-5952
November 28, 1972
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 4, 1971, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding in which it found that Respon-
dent violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, by refusing to
bargain with the Union after it was certified by the
Board, and ordered Respondent to take specific
action to remedy such unfair labor practice. Subse-
quently, the Board filed a petition with the United
States Court of Appeals for the Eighth Circuit for
enforcement of its Order. Thereafter, on January 18,
1972, the court handed down its decision2 denying
enforcement and remanding the case to the Board
for a hearing on the issues raised with respect to the
validity of the election, based on the Union's alleged
misconduct, and subsequent certification. On March
22, 1972, the Board issued an Order reopening the
record and remanding the case for a hearing before
an Administrative Law Judge.3 The Board's Order
directed the Administrative Law Judge to receive
evidence in accordance with the court's opinion, and
further ordered that, upon conclusion of such
hearing, the Administrative Law Judge should
prepare a Supplemental Decision.
On August 2, 1972, Administrative Law Judge
Anne F. Schlezinger issued her Supplemental Deci-
sion, attached hereto, in which she concluded that
the Union's conduct did not, and was not intended
to, interfere with the employees' free choice in the
election. The Administrative Law Judge further
found that Respondent refused to bargain with the
certified Union in violation of Section 8(a)(5) and (1)
of the Act, and recommended that the Board
reaffirm its requirement that Respondent bargain
collectively with the Union, as set forth in its
Decision and Order, 188 NLRB No. 132. Thereafter,
Respondent filed exceptions to the Supplemental
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the court's opinion, the
record, and the attached Supplemental Decision in
light of the exceptions and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge and to reaffirm its original Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Commercial Letter, Inc., St. Louis, Missouri, its
officers, agents, successors, and assigns, shall take the
action set forth in the original Decision and Order
herein.
1 188 NLRB No. 132.
2 455 F.2d 109.
3 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER , Trial Examiner : On March 4,
1971, the National Labor Relations Board issued a
Decision and Order ' in the above-entitled proceeding in
which it granted the General Counsel's Motion for
Summary Judgment and ordered the Respondent, Com-
mercial Letter, Inc., to bargain collectively with Lithogra-
phers and Photoengravers International Union , Local 252,
AFL-CIO, herein referred to as the Union , which had
been certified following an election held in Case
14-RC-6453. The United States Court of Appeals for the
Eighth Circuit, in an opinion dated January 18, 1972,2 held
that certain issues which the Respondent sought to raise
with respect to the validity of the election conducted in the
representation case on August 5, 1970, and the subsequent
certification warranted a hearing. The court accordingly
denied enforcement of the Board 's Order and remanded
the matter to the Board for a hearing on these issues. The
Board directed , in an Order dated March 22 , that the
record in this proceeding be reopened and a hearing held
before a Trial Examiner for the purpose of receiving
evidence in accordance with the court 's opinion, that the
Trial Examiner thereafter prepare and serve on the parties
a supplemental decision, and that , following the service of
such supplemental decision upon the parties , the provisions
of Section 102.46 of the Board's Rules and Regulations,
Series 8, as amended , shall be applicable.
Accordingly , a hearing was held before the Trial
Examiner at St. Louis , Missouri , on June 12 and 13, 1972.
All parties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross -examine
witnesses , and to introduce evidence relevant to the issues
raised by the court 's opinion. Counsel waived the presenta-
tion of oral argument at the close of the hearing.
Subsequent to the hearing, briefs were filed by the
1 188 NLRB No. 132.
2 455 F.2d 109.
200 NLRB No. 90
COMMERCIAL LETTER, INC.
Respondent on July 20 and by the Union on July 21,
1972,3 which have been duly considered.
Upon the entire record in this matter and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. The Regional Director's Supplemental Decision
and Certification of Representative
Following the election held on August 5, 1970, the
Respondent4 filed timely objections asserting that it
"understands that on the evening preceding the election,
the Union gave $51.00 to one employee and may have
given money to other employees. The full circumstances of
such payment or payments were made to influence the
votes of the recipient or recipients to attend an election eve
electioneering meeting. A switch in one vote would have
been sufficient to affect the result of this election."5
The Regional Director, after an investigation, issued a
decision finding that employees subpoenaed by the Union
to appear at the hearing in the representation case were
reimbursed for the time spent at the hearing for which time
they were not paid by the Respondent, that this did not
"amount to the bestowal of a tangible economic benefit
such as has been found objectionable,"6 that no evidence
had been disclosed that any employees were required to
attend a preelection meeting in order to be reimbursed for
time lost attending the hearing, and that no conduct had
been disclosed by the investigation which constituted
grounds for setting aside the election. The Regional
Director accordingly certified the Union. On September
11, the Respondent filed a Request for Review with the
Board, which issued a telegraphic order on October 26,
1970, denying the request on the ground that it raised no
issues warranting review.
2. The Board Decision
In its Decision and Order, the Board found no merit in
the Respondent's contentions that it was deprived of due
process by the denial of a hearing on its objections to the
election, granted the General Counsel's Motion for
Summary Judgment, denied the Respondent's cross Mo-
tion for Summary Judgment, found, on the basis of
admitted conduct, that the Respondent had violated its
duty to bargain collectively with the Union, which had
been certified, in violation of Section 8(a)(5) and (1) of the
Act, and ordered the Respondent to cease and desist from
such activity and to take certain affirmative action to
remedy the unfair labor practices found, including the
requirement that the Respondent bargain collectively with
the Union.7
3 The time for filing briefs was extended , pursuant to the request of
counsel for the Respondent, from July 6 to July 21, 1972.
4 The Respondent and the Union were designated in the representation
case proceeding as the Employer and the Petitioner respectively.
The Respondent objected, at the opening of the hearing and in its brief,
to the instant hearing being held in the complaint rather than the
representation case . The proceeding was remanded , however, to a Trial
Examiner , and the representation case issues involved were fully litigated.
See Bufkor-Pelzner Division, Inc., 197 NLRB No. 140.
5 The tally of ballots showed that of 12 eligible voters, 7 voted for, and 5
against, the Union. Allen Oglander , president of the Respondent , testified
3. The Court's Remand
535
The Court opinion states in part as follows:
The representation case hearings were held on June
5, and June 19, 1970. The Union subpoenaed eight
employees to appear at one or both of these hearings.
There is nothing in the record to indicate the extent to
which these employees testified at the hearing except
the ambiguous statement contained in the Regional
Director's Supplemental Decision and Certificate of
Representation that "some of them testified." This
statement could easily be read to mean that not all of
them testified. These employees were paid various sums
of money by the Union allegedly in reimbursement for
wages lost while attending the hearings . Six of the
employees were paid on or about July 21, 1970, the
seventh was paid on or about July 28, and the eighth
was paid on the evening of August 4 (the evening
before the scheduled representation election) by a
check, postdated to August 5, 1970. The Regional
Director found that none of the employees were paid in
excess of what they would have earned had they
worked instead of attending the hearing; as to the delay
in paying the eighth employee, he found no intent to
influence the employee's vote by the election eve
postdated check in the amount of $54.78.
The Board has approached the problem of gifts or
payments by labor or management on a pragmatic
basis, based on the broad standard of whether the
payment was intended to or would influence the
election and thus impair a free choice on the part of the
employees. A union's preelection payment or gift made
to prospective voters in a representation election is
ground for setting aside the election. General Cable
Corp., 170 N.L.R.B. 1682 (1968); Wagner Electric
Corp., 167 N.L.R.B. 532 (1967); Teletype Corp., 122
N.L.R.B. 1594 (1959). However reimbursements of
employee's out-of-pocket expenses with an express
disclaimer of intent to influence votes were found
permissible in Federal Silk Mills, 107 N.L.R.B. 876
(1954). [Footnote omitted.]
The questions raised here are obvious. Did the
employees actually attend the hearing? How long were
they at the hearing each day? Did they receive
compensation from any other source during that period
of time? Were their witness fees and expenses also paid
by the Union as the summoning party as required by
the National Labor Relations Act, and the regulations?
[Footnote omitted.] What did the employees think was
the purpose of the payments? Perhaps the most
that the Respondent has about 100 employees and that he did not think any
of them were represented by a union.
6 Citing Dit-MCO, Incorporated, 163 NLRB 1019.
T The violations found by the Board include , in addition to refusing to
bargain collectively with the Union as the exclusive representative of an
appropriate unit, refusing to furnish the Union with requested information
pertaining to conditions of employment of unit employees , bargaining
directly and individually with unit employees , unilaterally announcing and
thereafter granting wage increases to unit employees , unilaterally altering
the lunchtimes of unit employees , and unilaterally instituting and granting a
profit-sharing retirement plan for unit employees.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relevant question would be why did the Union
subpoena eight employees , a number that would give
them a majority in the unit of 12 and how did it choose
the employees it wished to attend ? The answers to all
these questions have relevance to the intent of the
Union in making the payments as well as to the effect
that the payments might have on the employees' free
choice and the election process. If the payments were
grossly disproportionate to the time spent , it seems
clear that the payments would have a tendency to
influence the election results. Collins & Aikman Corp. v.
NLRB, 383 F .2d 722, 729 (4th Cir. 1967). [Footnote
omitted .) "There can be no question but that freedom
of choice may be seriously interfered with by economic
inducements ." NLRB v. Gilmore Industries, Inc., 341
F.2d 240 , 241 (6th Cir. 1965).
Here the circumstances in which the payments,
ostensibly reimbursement for expenses, were made are
obviously of vital importance in determining whether
or not they were made for the purpose or with the
intent to influence the election . These payments on
their face are questionable . They raise substantial
factual issues that should be further investigated,
calling for an adversary hearing . There is no showing
who testified , the necessity for that testimony , the time
taken in testifying, and whether the employees spent
full time at the hearings or used the occasion for a
limited vacation . This practice of subpoenaing a
majority of employees in a representation unit and
paying them in excess of a nominal amount is
insidiously harmful , subject to potential abuse and
should not be encouraged . See Federal Silk Mills, supra,
n. 2.
This court has also held that "the timing and the
proportionate impact of the objectionable activity on
the outcome of the election weigh heavily ." NLRB v.
Blades Mfg. Co., 344 F.2d 998 , 1003 (8th Cir . 1965).
Thus the timing of the final payment to the eighth
employee is critical and needs to be explored in greater
depth than the Regional Director's investigation
provided.
The mere fact the payments were made causes the
election to be suspect. . . . The intent of the Union in
making the payments, as evidenced by the steps that
they took or failed to take to prevent any misconcep-
tion on the part of those receiving the payments is
certainly a substantial and material fact. Federal Silk
Mills is clearly no precedent for these payments.
The cause is remanded to the Board for hearing on
the issues discussed. We express no opinion on the
merits ....8
8 The Court opinion is quoted at length to indicate not only the specific
queries posed but also "the issues discussed" which were remanded for
hearing, were litigated in this proceeding , and are discussed herein.
Judge Lay, in a concurring opinion, agreed that a hearing should have
been granted on the issue of the Union 's intent in making the payments, but
refused to "endorse the majority opinion's condemnation of the union's
4. The Representation Case Hearing
The hearing in the representation case opened at 10 a.m.
on June 5, 1970.9 Marvin Mantei, an official of the Union
who organized the Respondent's employees, was the first
witness, testifying briefly (about 2-1/2 pages of transcript)
as to the Union's status as a labor organization. The next
witness was Oglander, president of the Respondent, whose
testimony took the remainder of that day and part of the
second day of hearing. In the afternoon of the first day the
Hearing Officer stated:
Pursuant to an off-the-record discussion, it has been
agreed that the hearing will not close today, but will be
continued until 9 a.m., Friday, June 19. There are a
number of witnesses who are present in the room who
have been subpoenaed by the Petitioner in this case.
Mr. Schuchat has indicated to me that those individu-
als may leave at this time, if they wish to, but that they
will be subject to the subpoena to appear on the 19th,
unless they are notified otherwise by the Petitioner who
has subpoenaed them.
The interrogation of Oglander continued until the hearing
was recessed at 4 p.m. On June 19, Oglander resumed his
testimony. He was followed by Milton Leibach, Dominic
Bommarito, Medford Mackley, and Joyce Tate, employees
called by the Union, and William Goodall, a supervisor
called by the Respondent.
The transcript of the entire hearing, which closed at 3:40
p.m. on June 19, contains 206 pages. Counsel for the
Respondent stated near the close, "May I ask for a brief
recess. There have been some witnesses , a whole string of
them, I don't know whether they have been subpoenaed,
but they have been sitting here for a day and a half of
hearings. I think the record should show they have
withdrawn from the hearing room within the last few
minutes, so I fully expected this to go on much longer than
it has, and I'd like a few minutes to decide what my next
procedure will be." A 10-minute recess was granted,
following which the Respondent presented one additional
witness, Goodall. After his testimony was concluded,
counsel for the Respondent indicated that he needed a
continuance to recall a witness "who testified earlier who
was not released" to identify a document. During the
ensuing discussion, the Hearing Officer commented that
"All of the witnesses who were present in the room were
subpoenaed by the Union. . . . I do not know whether
they were released or not. It was completely within the
option of the union to release them." At that point counsel
for the Union stated, "I released them all." No continu-
ance was sought as the document in question was admitted
on the basis of a stipulation of the parties.
5. Evidence Presented at the Instant Hearing
A. The subpoenas served by the Union
Schuchat, one of the Union's attorneys, testified at the
reimbursement of employees for expenses incurred in attending a represent-
ation hearing," which issue he found was "not really before us," or the
characterization of the Union's conduct by such descriptions as "suspect"
and "insidiously harmful."
9 The transcript of that hearing was introduced in evidence herein, with
agreement of all the parties , as one of the Respondent's Exhibits.
COMMERCIAL LETTER, INC. 537
instant hearing that it was his decision to subpoena 10
employees for the representation case hearing; that he
requested that number of Board subpoenas; that it was his
opinion that all 10 would be needed to make out a prima
facie case in the event the Respondent did not present
witnesses as to the appropriate unit; that any of these
employees might have been called upon to testify as to job
classifications and functions in view of the unit issues
raised at a conference with the Respondent; and that it was
desirable to have those employees who might not testify
hear the unit testimony of the Respondent's witnesses and
indicate the inaccuracies, if any, in this testimony. Mantei
testified that the Union considered that all those subpoe-
naed might be called to testify about their jobs, and that
another purpose in having them present, in view of the unit
disputes, was "to keep the company honest" as to job
categories when its witnesses testified.
The petition for an election filed by the Union stated
there were 10 employees in the unit sought. As Mantei
testified, however, the Union could not have determined
the number of employees the Board would include in this
unit in view of the issues as to employees who performed
various functions, as to the unit placement of certain
categories, and as to the supervisory status of some
individuals.10 Two additional employees believed by
Mantei to be in the unit, Schreiner and Baity, were not
subpoenaed because they were deaf.
Subpoenas, placed in evidence by the Respondent at the
instant hearing, were issued by the Union to Oglander,
president of the Respondent, and to employees Boice,
Bommarito, Davis, Gurley, Kniest, Leibach, Lewis, Mack-
ley, Root, and Tate. The employees who testified on the
second day of that hearing were Bommarito, Leibach,
Mackley, and Tate. Boice and Lewis quit their jobs
between the June 5 and 19 hearings, and were not present
at the June 19 or the instant hearing. Of the remaining
eight employees who were subpoenaed, Bommarito, Davis,
Gurley, Kniest, Root, and Tate were present at the instant
hearing. All testified except Kniest, who appeared but
whom all counsel agreed to excuse because of a physical
problem. Three of those who testified herein, Bommarito,
Davis, and Root, were employed elsewhere at the time of
the instant hearing.
Credited testimony and the record as a whole show that
the employees had been advised in advance that they
would be subpoenaed and told where to obtain their
subpoenas, and that they were not told what their
testimony would cover, if called to testify, but assumed or
understood it would be about their job duties. The record
also shows, and I find, that all the employees who received
subpoenas, except Bommarito who was away on vacation,
were present throughout the hearing on June 5, including
some who went to work early in the morning prior to going
to the hearing; 11 that all eight who were still employed by
the Respondent, including Bommarito, appeared at the
hearing on June 19; that, according to credited testimony
in this matter of Davis, Gurley, Root, and Tate, and the
evidence in its entirety, all eight returned after the
luncheon recess, which was from 11:55 a.m. to 1:30 p.m.; 12
and that they left at various times between their return
from the luncheon recess and the close of the hearing at
3:40 p.m. Some of them checked before leaving with
Schuchat, who testified herein that he advised them they
could remain or leave as he had decided that the four
employees who testified had established the Union's prima
facie case. Some employees left because others with whom
they rode to the hearing were leaving. Many of them went
to the plant to pick up their paychecks.13 There is no
evidence that anyone suggested they return to work that
afternoon, and none did.
Counsel for the Respondent questioned why, if the
Union considered it necessary to subpoena so many
employees, it did not arrange to have them go to work on
an on-call basis. Schuchat, who testified that he has
practiced labor law for many years and been involved in
numerous Board proceedings, responded that employers
frequently request that employees he has subpoenaed to
testify on workdays be put on an on-call basis, but that no
such request was made by the Respondent for the hearing
on June 5 or 19. Schuchat and Mantei both testified that
one reason the subpoenaed employees remained so long at
the hearing was because neither of them anticipated the
length of Oglander's testimony.
B. Payments made by the Union
Mantei as well as Tate and other employees testified
credibly and without dispute that a question was raised, at
Union meetings before any hearing was scheduled, about
payment for time lost from work by employees called to
testify for the Union if a hearing were held. Mantei
explained at these meetings that it was the Union's policy
to reimburse individuals for time thus lost from work, up to
8 hours a day at their hourly rate if they were not paid for
this time by their employer, and that the procedure for
obtaining such payment involved coming to the Union's
headquarters and making out a "Lost Time Voucher."
Mantei testified at the instant hearing that this has been
the Union's established policy for many years, that it is
applicable not only to attendance at hearings but also to
various other endeavors undertaken on behalf of the
10 The Regional Director's Decision and Direction of Election sets forth
the unit positions of the parties, his determinations as to the unit issues, and
the bases therefor . He found appropriate a unit of lithographic production
employees including pressmen , cameramen, strippers , and opaquers;
included employees Root and Tate , and excluded cold typesetters,
varitypers , typists, and proofreaders , contrary to the contentions of the
Respondent ; excluded bindery employees contrary to the contentions of the
Union; and ruled on supervisory issues.
11 Oglander testified, on the basis of payrolls and time cards , that on
June 5 Root worked 1.8 hours, Davis 1.3 hours, and Mackley 1.6 hours, and
were paid for this time . The work schedule for most employees was 8:30 to
5.
12 1 found unconvincing, and do not credit , Oglander's testimony that
most of the eight did not return after the luncheon recess. Moreover, as
noted above, counsel for the Respondent stated near the close of the June
19 hearing that "a whole string" of witnesses who had been sitting there "for
a day and a half of hearings . . . have withdrawn from the hearing room
within the last few minutes."
13 Root testified that:
We were there to a certain point that last day. I didn't hear anybody
testify, but I believe it was Mr. Oglander that said that our checks were
waiting for us down there and that if we weren't needed that the Union
would allow us to go down and pick up our checks , I believe we could.
No other employee testified to such a statement by Oglander . On the other
hand , Oglander, who was present throughout the instant hearing and who
testified , did not deny that he made this statement.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union including participation in negotiating committee
sessions, presentation of grievances, civic and charitable
activities, and training seminars. The Union made no
proffer of witness fees or mileage to the employees it
subpoenaed. Mantei testified that he did not know this was
required, and Schuchat testified that he was aware of this
requirement but did not pay or offer to pay such fees
because of the Union's policy to pay for lost time.14
Mantei was out of town on June 19, the second day of
the hearing, and a good deal of time after that, which
delayed preparation of the "Lost Time Vouchers." Upon
his return he telephoned some of the employees and told
them to come to the union office to make out their
vouchers. Most of them did so on July 13. Tate testified
that she did not recall why she did not do so on July 13
with the others, and that she prepared a voucher on July 22
after Mantei reminded her "that I had some money that
was due to me and for me to come down and sign for it so I
could get it." Root explained that he delayed in submitting
his voucher because "I had other arrangements after work
that I couldn't go down there."
There are in evidence, as exhibits of the Respondent,
"Lost Time Vouchers" signed by, and checks in payment
made out to, Bommarito, Davis, Gurley, Kniest, Leibach,
Mackley, Root, and Tate. The vouchers are dated July 13,
1970, except Tate's which is dated July 22 and Root's
which is dated July 24. The checks are dated July 21 except
Tate's which is dated July 24 and Root's which is dated
August 5. No vouchers were submitted by or payments
made to Boice or Lewis who had left the Respondent's
employ before the June 19 hearing. Mantei testified that
they would have been paid for attendance at the June 5
hearing but he was unable to locate Lewis, who had
moved, to tell her the money was available, and he got in
touch with Boice who told him to keep the money. Mantei,
who handled the "lost time" payments, was present at the
hearing on June 5 but was out of town and therefore not
present on June 19. Schuchat was present on both hearing
days but was not involved in making these payments.
Credited testimony and the record as a whole show, and
I find, that Bommarito was away on a paid vacation on
June 5. He attended the June 19 hearing and testified in the
afternoon, remained for a time after he testified, and then
went to the plant to get his paycheck. As he knew from
Union meetings he had attended about the "lost time"
payments, he made out a "Lost Time Voucher" claiming,
and was paid for, 8 hours. Tate was subpoenaed for one of
the hearing days. She was on vacation but in town on the
other hearing day, attended the hearing on both days, and
testified in the afternoon of the second day. Her "Lost
Time Voucher" claimed, and she was paid for, only 8 hours
as she was on vacation time paid by the Respondent on the
other day she was at the hearing. Davis went in to work
early on the first day of the hearing as he had been asked
to come and get out some of the work, and was paid by the
Respondent for that time. He left after the luncheon recess
on the second day of the hearing and went to the plant to
get his paycheck but did not go back to work. Although he
had been told the "Lost Time Voucher" was for payment
for time lost because of the hearing, he testified that he put
15 hours on his voucher although he did not in fact lose 15
hours because he thought when he made out the voucher
that he had. Mackley and Root also worked in the morning
of June 5 before going to the hearing and were paid for the
time, but testified they were not sure how long they
worked. Mackley made out his voucher, and was reim-
bursed, for 15 hours. Root made out his voucher and was
reimbursed for 16 hours. The vouchers and checks of
Gurley, Kniest, and Leibach are for 16 hours.
C. Payment made to Root by the Union
(1) Root's subpoena
Root testified that his feeling about the Union was
"negative . . . all along just about." He admitted that he
had signed a card 15 and that "I would-well, I guess then
I'd have to say yes, at that time I was probably more in
favor of it." He also testified that he was not interested in
attending meetings of the Union but was kept informed
about its activities by conversations with other employees,
particularly Tate with whom he talked frequently. Root
testified that he heard, he thought from other employees,
that he would get a subpoena; that he thought he was not
told what the testimony would be about but understood it
was about job classifications; that he supposed he had
indicated to Mantei and his fellow employees before then
that his feelings about the Union were "Probably nega-
tive"; and that he nevertheless went to where employees
told him the subpoenas were being served and obtained
one.
(2) Root's attendance at representation case
hearing
Root testified that he attended "both days for the entire
hearing." He also testified that he went in to work early for
about an hour on June 5. After asserting that he was
present for the entire afternoon on the second day of the
hearing, he admitted that "We were there to a certain
point." He testified that "I didn't hear anybody testify,"
and then that he heard Leibach, Mackley, and Bommarito
testify, but not Tate. He testified that Gurley left before he
did but, when counsel for the Respondent repeatedly
suggested in his questions that Gurley left before noon,
answered, "He went to eat lunch with us, he came back, he
left before the afternoon was over." Asked to repeat the
answer because counsel did not hear it, he stated, "He went
to lunch with us, he came back, and he left before the
afternoon session began, I believe." He testified further
that he did not believe anyone else left at that time. Just
before Root left at "a certain point," he testified, Oglander
suggested the employees could pick up their checks, and he
went to the plant to pick up his check "a little after 4,
something like that."
14 Sec. 102.66(g) of the Board's Rules and Regulations provides with 15 The cards of Root and Davis, dated April 16, 1970, were apparently
regard to representation proceedings that "Witness fees and mileage shall be the first ones signed . The cards of Bommarito, Gurley, Kniest, Leibach,
paid by the party at whose instance the witness appears." Mackley, and Tate are dated April 27, Boice's June 4, and Lewis 's June 24.
COMMERCIAL LETTER , INC. 539
(3) Root 's voucher
Root testified that he did not fill out a "Lost Time
Voucher" when the others did on July 13 "Possibly
because I didn ' t know about it , or if I was told, I had other
arrangements after work that I couldn ' t go down there"
and that he did not attend Union meetings but learned
from conversations , he believed with Tate , about the others
getting paid for time lost from work and how he could go
about doing so. He finally called Mantei and, as he
testified , said "I wanted to see him and talk with him about
the Union , about how they could help us , help myself, and
I would like to talk to him about it person to person." He
did not remember whether he mentioned getting paid.
Root , as arranged on the telephone , went to Mantei's office
on Friday , July 24, where , he testified , the conversation
covered "all sorts of stuff . We talked about the Union, we
filled the voucher out, things in general , I suppose, but
mostly pertaining to the Union ." He could not recall what
was said about lost pay, but believed he was the one who
raised it . He also believed that he told Mantei he was
"uncommitted ," that Mantei made no response to this, and
that he said he would like to fill out a voucher and did.
The "Lost Time Voucher" form has spaces for the date
paid and the check number which are furnished by the
bookkeeper . The applicant fills out the spaces calling for
the date , hourly rate of pay, reason for the lost time, and
signature . In addition , Mantei testified , he told those
preparing the forms to add their social security numbers
and addresses , and they furnished the data needed to
compute the withholding taxes. Mantei also testified that
he informed Root as to the information to be furnished on
the voucher , that Root made it out and handed it back to
him, and that he turned it over to the bookkeeper without
examining it, that he went out of town on July 25 and did
not return to his office until late in the day on August 3,
and that upon his return he was told by the bookkeeper
that certain information had been omitted from Root's
voucher . He did not recall , when he testified , exactly what
had been omitted , but maintained that it was information
the Union could not provide ; that such items as social
security numbers or addresses could probably be furnished
from union records but not the amount of time lost, hourly
rate , or signature ; that one or more of these items must
have been missing or Root would have been mailed a
check as some other employees were ; and that he heard
Root testify that his social security number or address was
missing, which might have been the case , but other data
must also have been missing . Mantei also testified that he
could not send the form to Root to be completed as the
Union 's established policy was not to let such forms get out
of the office ; that Root, like all the others claiming pay for
lost time , had to complete the form in the Union 's office;
that checks could be mailed but only on the basis of
completed forms, or could be delivered in person but only
if Mantei was present as he was the only Union
representative who could identify these employees. Mantei
testified that he took the word of the individual submitting
a "Lost Time Voucher" as to the amount of time lost and
rate of pay.
Credited testimony shows that Mantei told several
employees with whom he had conversations on August 3 or
4 that Root 's voucher was incorrect or incomplete, that if
Root came in and corrected or completed the voucher he
would receive his check , and that these employees should
so inform Root . And Root testified that Tate "told me that
I had left off some statement or address or something off
of my voucher and this is why that they could not mail the
check to me, that I had to go down and complete it." At
another point he testified that the only time he recalled
hearing about the voucher was on the night before the
election and that he did not recall what Tate said about it.
He testified later that he believed Tate told him Mantei
said something was left out on the voucher and that he
assumed he left the address off when Tate said the check
could not be mailed . Root also testified that later that day
Kniest told him "That my check was waiting for me down
at the Union hall" and that he could get it by coming down
that night , but then that he "couldn't really say" that
Kniest asked him to come down that night , and that Kniest
"might have" told him there was to be a meeting that night.
Root also testified that Tate did ask him to attend the
meeting that night. Asked by counsel for the Respondent
whether , between the time he filled out the voucher form
on July 24 and August 4 , the date of his conversations
referred to above , anyone communicated with him about
why his check was not forthcoming , he replied, "Possibly."
Asked if he recalled, he replied , "I can't say exactly; no, sir,
I can't." And asked then if he might have known before
August 4 there was some problem in connection with his
voucher , he replied , "Not really , I don't think ." When he
was later asked by counsel for the Union if he heard
anything between July 24 and August 4 about not getting
his check , he replied , "I don't believe too much until that
day I was down there . . . Until the 4th."
(4) Root's attendance at the August 4 meeting
As noted above , Root testified that Tate asked him on
August 4 to attend the meeting that evening and that
Kniest "might have" mentioned there was to be a meeting.
He testified further that he was "Reluctant . . . at first" to
attend, that he said he had other plans and would not go to
the meeting, and that he later told Tate he would go but
intended nevertheless to go to baseball practice and not to
the meeting . When he went to the parking lot after work,
however, his car , with which he had been having trouble,
would not start . Some of the employees helped him try to
get the car started but without success . When they left to
go to the meeting, Root , admittedly without telling them he
had planned not to go , rode to the meeting with one of the
employees who had been helping him work on his car.
Bommarito promised to return with him after the meeting
to work further on the car.
Mantei testified that when Root arrived on August 4
Root completed the voucher form so the check could be
made out, that the check was later given to Mantei by the
bookkeeper and handed over by him to Root , and that he
could not recall any conversation with Root during the
meeting which lasted about 30 minutes.
Root's testimony about what occurred at the union hall
that evening with regard to his voucher includes the
following:
A. The only thing that I really remember is a lady,
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a young lady, coming in and saying she needed my
Social Security number.
Q. Did you give it to her?
A. Yes, I did.
Q. Did you write anything that evening?
A. I believe so, yes.
Q. What did you write?
A. My Social Security number it looks like. . . . it
was done that night.
Q. You wrote it down there that night?
A. Yes, sir, it was.
Q. Using the same pen?
A. Possibly, yes.
Q. Does that look like a pen that you were using at
that time?
A. Yes.
Q. So you gave her your Social Security number,
and was this at the beginning of the meeting?
A. Yes, I would say pretty-yes, sir.
Q. Did they then bring out the check?
A. Shortly thereafter, yes sir.
Q. So you got your check at the beginning of the
meeting, is that right?
A. No, sir, not right away. I filled out the voucher
form, or finished filling out the voucher form at the
beginning of the meeting, and I would say I received it
midway.
When counsel for the Union later asked Root what, if
anything, was said to him at the August 4 meeting about
getting his check, Root replied, "That I believe I had to fill
out my Social Security number on there." At a later point
Root testified that he did not think Mantei told him on
July 24 to put down his Social Security number; that he
"presumed" if Mantei had told him to do so he would have
written it down at that time; that "I can't be sure, I
suppose" that the number was not filled in on July 24; and
that he was not sure whether he added something to the
voucher on August 4 and might not have added anything
to it. Root finally testified in this regard that on August 4,
"The secretary in the office said she needed my Social
Security number to complete the check," and that he gave
it to her orally or wrote it on the voucher at that time.
Root remained at the meeting which lasted about a half
hour. He took no part in the discussion and had no
conversation with Mantei. After the meeting he rode back
to the parking lot with one of the employees, and
Bommarito helped him for about a half hour to get his car
started.
(5) Root's check
Root testified that Mantei explained, when he filled out
the voucher, that it was "For the two days that I was
subpoenaed for the Union, in their behalf, two days lost
pay, compensation." Root also testified that "I went to
work an hour before the one, so I imagine I got an hour's
pay for that." He admitted that although it was clear to
him that the Union intended to pay him only for the hours
he had lost, he put 16 hours on his voucher because he
forgot he had been paid for the time he worked. Root's
check, like the others, bears the signatures of the union
president and treasurer, indicates that it is for "Lost Time,"
and shows the amounts of the social security and
withholding taxes. The check given to Root on the evening
of August 4 was dated August 5. He testified that he did
not remember if he noticed at the time that the check was
postdated, that he might have, and that no one gave him
any explanation of the date.
Mantei explained in his testimony that the Union at that
time had a part-time treasurer who came in about every
other evening, after working all day as a lithographer, and
made out the checks which he dated the next day. The
credited testimony of Mantei, who maintains the Union's
ledger, and ledger entries which are in evidence, show that
checks numbered 5317 through 5322 were dated August 3;
that no checks were issued dated August 4; that checks
numbered 5323 through 5358, including Root's check
numbered 5358, were dated August 5; that a check
numbered 5359 was dated August 7; and that checks
numbered consecutively thereafter were dated August 11.
Mantei testified that he could not have given Root a check
on the evening of August 4 dated August 4 because of the
check numbering sequence. The testimony shows also that
the check was prepared by the bookkeeper and signed by
the president and the treasurer not at the meeting but in
their offices, and that Root did not question the date on
the check.
(6) Root's participation in the election
The election was held the next day , August 5, from 9 to
10 a.m. The record does not show whether Root cashed his
check before or after he voted . While Root had signed a
union card, he was, as he testified , "uncommitted" to the
Union, his feelings about the Union "were basically the
same throughout the Union 's organizational campaign," he
did not care to attend meetings , he had made his
"negative" attitude toward it known to his coworkers, and
he had told Mantei he was "uncommitted" and that was at
the time the truth "more or less ." Nevertheless , as shown
by the Regional Director 's Decision and Direction of
Election , Root was included in the unit in accord with the
Union's contentions , whereas the Respondent would have
excluded him . Root in his testimony at the instant hearing
volunteered the information that he voted against the
Union.
Root also testified , on examination by counsel for the
Union, as follows:
Q. Mr. Root, did anyone from the company ever
question you about the payment you received?
A. No.
Q. From the Union?
A. No.
Q. No one from the company ever questioned you
about the payment, not a foreman or anyone?
A. Questioned me?
Q. Asked you whether the Union had made a
payment to you.
A. No.
Q. No one from the company spoke to you after
the election about the payment that you were given?
COMMERCIAL LETTER, INC. 541
A. Spoke to me. No one asked me, no, sir.
Q. Did you tell someone? Did you volunteer that
information, then?
A. No, I did not volunteer any information.
Q. Let me ask you this, Mr. Root. As far as you
know, did anyone from the company know that the
Union had paid you a certain amount?
A. Yes; I'd have to say yes.
Q.
A.
Who knew?
Don Harbaugh.
Q. Plant foreman. And you say he knew that you
had received this payment?
A. Yes.
Q. How do you know that he knew?
A. I told him.
Q. You did tell him. When was that?
A. The day of the first hearing; the day of the
election, I'm sorry.
Q. How did that come up? Did you just volunteer
that information? Did he ask you about it?
A. No. We were talking about my car and how I
had got it started, where I had went with the people
that I left with. I told him where I went and the reason
that I went.
Root also testified that he could not recall what he said to
Harbaugh but that it was in accord with what he testified
to about the payment by the Union. On examination
thereafter by counsel for the Respondent, Root testified
that the reason he gave Harbaugh "for going to that
meeting" was "For receiving my two days pay." And
further:
Q. What did you tell him about going to that
meeting?
A. He had asked me why I had left the car and
then come back almost an hour later, and I said I had a
meeting to go to.
Q. What else did you tell him?
A. Of course he asked me what meeting, and I told
him that I was going down to the Union 252 to
complete a voucher form to pick up my back pay, not
my back pay, my lost pay.
CONCLUDING FINDINGS
Subpoenas I find, on the basis of the foregoing and the
record as a whole, that the Union subpoenaed 10
employees for the hearing in the representation case
because its representatives were of the opinion that that
many might be required to establish the Union's unit
contentions. All were present at the first day of the hearing
on June 5 except Bommarito who was on vacation, but
none testified because the Respondent's president was on
the witness stand virtually all day. The eight still employed
were present at the second day of the hearing on June 19,
and 4 of them testified. Employees left at different times
16 Sec. 102.66 of the Board's Rules and Regulations, which refers in
paragraph (g) to payment of witness fees, also provides as follows:
(b) Any objection with respect to the conduct of the hearing,
including any objection to the introduction of evidence, may be stated
during the afternoon to get a ride, to pick up their
paychecks, or when counsel for the Union indicated they
could go or stay after he decided the Union had made a
sufficient presentation as to the unit issues.
When the Hearing Officer stated near the close of the
hearing on the first day that the employees subpoenaed by
the Union might be excused but were to return when the
hearing resumed, no objection was made by the Respon-
dent as to the necessity for the number of employees under
subpoena,16 no request was made for these employees to be
placed on an on-call basis, and no suggestion was made
that the employees go back to work that afternoon or go in
to work in the morning prior to coming to the resumed
hearing. On the afternoon of the second day, when
employees were being excused or leaving at various times,
Root testified that Oglander suggested the employees could
go to the plant to get their paychecks. I found Root an
evasive and unreliable witness. I therefore credit his
testimony only where it is not refuted by more credible
witnesses or more reliable evidence. I credit his testimony
about Oglander's suggestion, although it was uncorrobo-
rated, as it was uncontradicted. Whether or not this
testimony is credited, however, there is no evidence that
Oglander or counsel for the Respondent suggested that the
employees return to work after leaving the hearing.
It is thus apparent, and I find, in response to some of the
questions raised in the court opinion, that the Union
subpoenaed the number of employees it did because,
wisely or unwisely, it felt their presence was essential to
establish the Union's unit contentions; that the employees
who were subpoenaed did "actually attend the hearing";
that the nine then available were present virtually all the
first day until the Hearing Officer stated on the record that
they were excused but were to return for the second day;
that the eight still employed were present until the
afternoon of the second day; and that after four of the
eight testified on the second day counsel for the Union
decided that its prima facie case had been established.
Payments for "lost time" I find further that the employees
had been advised at union meetings that if a hearing were
scheduled, and if they were subpoenaed by the Union, they
would be reimbursed for the time lost from work for which
they were not otherwise reimbursed. The record is clear
that all the employees, including Root, understood that the
payments were to cover the work time they lost on the
Union's behalf, up to 8 hours a day at their hourly rate, if
their employer was not paying them for such time. Thus
Tate, who was on paid vacation on one of the two hearing
days, made no claim for that time even though she
attended the hearing on both days. Of the three employees
who worked for between I and 2 hours on the morning of
the first day, Davis and Mackley claimed and were paid for
15 hours, and Root claimed and was paid for 16 hours.
None of those who left early on the afternoon of the
second day returned to work. There is no evidence that
they were asked to do so, or that it would have been
feasible for them to do so that late in the afternoon.
orally or in writing, accompanied by a short statement of the grounds
of such objection, and included in the record. No such objection shall
be deemed waived by further participation in the hearing.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mantei, who was not present on the second day of the
hearing, took the word of those who submitted vouchers as
to the amount of work time they lost.
I find, therefore, on the evidence in its entirety, in
reference to questions posed by the court, that the Union's
payments, in all the circumstances shown by the present
record, were not "ostensibly" but in fact "reimbursement
for expenses" and were so understood by the employees.
They were made in accord with the Union's long
established policy thus to reimburse members for worktime
and wages lost on behalf of the Union, and were not
"grossly disproportionate to the time spent." The record
does not show that the Union conditioned the payments on
the way employees voted or on the outcome of the election,
or that the "intent of the Union in making the payments, as
evidenced by the steps that they took . . . to prevent any
misconception on the part of those receiving the pay-
ments," was to interfere with the employees' exercise of a
free choice in the election.
Payment to Root I find likewise that, in spite of "the
timing of the final payment to the eighth employee," which
has now been "explored in greater depth than the Regional
Director's investigation provided," as directed by the
Court, the evidence does not show that the Union's
payment to Root was designed to influence or interfere
with his free choice in the election. Root had admittedly
been informed by Tate that "lost time" payments were
being made, that Root was eligible to be reimbursed for his
"lost time" for which he was not paid by the Respondent,
and that he should go to the union headquarters and make
out a voucher as all the other employees involved had been
required to do. He had delayed doing so when the other
employees did because, as he testified, he "had other
arrangements after work." He finally called Mantei and
said he would like to discuss the Union with Mantei
"person to person." When he went to see Mantei on July
24, they did discuss the Union, as Root had requested, and
Root then raised the subject of "lost time" and prepared a
voucher.
Mantei could not recall exactly what was omitted from
Root's voucher. His testimony was explicit, however, that it
was one of the items Root had to furnish in person. I credit
this testimony of Mantei, and do not credit Root's various
versions of the matter which included that he heard from
Tate that he omitted "some statement or address"; that he
"filled out the voucher form, or finished filling it out at the
beginning of the meeting"; that he was told by the
bookkeeper that she needed his social security number;
that he filled in the social security number on the voucher;
that he told the bookkeeper what the number was and she
filled it in; that he added nothing on August 4 to the
voucher as he had omitted nothing when he prepared it on
July 24; and that he told his supervisor that he went to the
meeting on August 4 "to complete a voucher form to pick
up . . . my lost pay."
Further, I find no improper significance in the fact that
Root received his check on August 4, the evening prior to
the election. He had not bothered to check with the Union
before that time as to why he had not been paid. Mantei
had been out of town during the interval between July 24,
when Root prepared his voucher, and August 3, and, when
advised by the bookkeeper upon his return that Root's
voucher was incomplete, tried promptly to send word to
Root. There is no indication in the record that Root would
not have been paid earlier if he had completed his voucher
earlier. As to the effect to be given to his presence at the
meeting on the eve of the election, Root admittedly had no
intention of going to the union hall on August 4, and it was
not until he found he could not start his car after work that
he accepted a ride to the meeting with the employees who
had been helping him work on his car.
Mantei and Root had no discussion on the evening of
August 4. As Root testified, their discussion of the Union
on July 24 had been at Root's request, and when he
indicated to Mantei on July 24 that he was "uncommitted"
to the Union, Mantei made no response. Root's check was
given to him when he completed his voucher shortly after
the meeting began. He stayed for the remainder of the 30-
minute meeting but took no part in it. It is a reasonable
inference from all the relevant circumstances, and I find,
that Root went to the meeting on August 4 on his own
volition as a result of his car trouble, not because of
pressure by the Union, and that he stayed at the meeting
after receiving his check in order to get a ride back to
where he left his car and to obtain Bommarito's further
assistance with his car. I find no basis, on all the facts of
this case , for the contention set forth in the Respondent's
brief that the Union required employees to come repeated-
ly to the union office in regard to the vouchers in order to
subject them to the Union's "electioneering."
Further, I find no intent by the Union, in the fact that
Root's check was dated August 5, to influence Root's vote
in the election held on August 5. As Mantei credibly
explained and the ledger entries in evidence show, the
Union's bookkeeping system required that the checks
written on the evening of August 4 be dated August 5.
There is no showing that Root could not, or did not, cash
the check before the election held from 9 to 10 a.m., or
could not cash it after the election however he voted and
whatever the outcome. There is likewise no showing how
the Union could learn which way Root voted in a Board
election, or could assure a prounion vote by paying him for
his "lost time" or by postdating his check. And the fact is
that despite Root's "reluctant" attendance at the August 4
meeting and the "lost time" payment made to him, Root,
as he volunteered at the instant hearing, voted against the
Union.
As the court stated in its opinion, "The Board has
approached the problem of gifts or payments by labor or
management on a pragmatic basis, based on the broad
standard of whether the payment was intended to or would
influence the election and thus impair a free choice on the
part of the employees." 17 Applying the Board's pragmatic
17 With regard to the Board 's standard as applied to "labor or employer in an unorganized plant, with his almost absolute control over
management," see The Louis-Allis Co. v. N.L.R.B., 463 F.2d 512 (C.A. 7, employment, wages, and working conditions , occupies a totally different
June 14, 1972), quoting with approval the opinion in N.L.R.B. v. Golden Age position in a representation contest than a union, which is merely an
Beverage Co., 415 F.2d 26, 30 (C.A. 5, 1969), holding in part that "An outsider seeking entrance to the plant."
COMMERCIAL LETTER, INC. 543
standard, and bearing in mind the closeness of the election
result in this case,18 I am convinced and find, on the entire
record, that the Union's conduct here in issue, including
the number of subpoenas it issued, the payments it made to
employees for their "lost time" in lieu of witness fees and
mileage, and its "lost time" payment to Root made on the
evening before the election with a check dated on the day
of the election, was not intended to and did not "impair a
free choice on the part of the employees." 19
In conclusion, therefore, I would, on the basis of all the
circumstances shown by the present record, affirm the
Board's conclusion that the Respondent has refused to
bargain with the certified Union in violation of Section
8(a)(5) and (1) of the Act, and its requirement that the
Respondent bargain collectively with the Union, as set
forth in the Board's Decision and Order published at 188
NLRB No. 132.
11 See N L R B v Piggly Wiggly Red River Co, Inc, 464 F 2d 106 (July
12, 1972)
19 N L R B v Glover Packing Co, 80 LRRM 3456 (C A 10, June 27,
1972), holding that, for threatening conduct of the type there involved "to
warrant the setting aside of the election , it must not only be coercive in its
effect but must also be so related to the election as to have had a probable
effect upon the employees' actions at the polls [citing N L R B v Zelrich
Co, 344 F 2d 1011 (CA 5, 1965)) "