Southern Paper Box Co.

National Labor Relations Board - Board Decisions

Nov 8, 1973

207 N.L.R.B. 56 (N.L.R.B. 1973)

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Paper Box Company and United Paperwork-
ers International Union, AFL-CIO. Case
26-CA-4073
November 8, 1973
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On May 20, 1971, United Papermakers and
Paperworkers, AFL--CIO,' was certified as the
exclusive representative of Respondent's employees
following an election held pursuant to a Decision
and Direction of Election and the subsequent
resolution of Respondent's objections, which were
overruled.2 Thereafter, on October 22, 1971, the
National Labor Relations Board issued its Decision
and Order in the instant case,3 finding that Respon-
dent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the certified Union. The
Board, accordingly, ordered the Respondent, upon
request, to bargain collectively with the Union.
Respondent refused to comply with this Order,
contending that the Board's certification of the
Union was invalid.
On January 31, 1973, the United States Court of
Appeals for the Eighth Circuit issued its decision4
denying enforcement of the Board's order without
prejudice to a renewal of the Board's enforcement
petition, after further consideration by the Board.
The court held that two of Respondent's objections
to the election based on union and employee conduct
prior to the election raised issues which should have
been resolved by the Board upon a hearing. Accord-
ingly, the court remanded the case to the Board.5
On March 28, 1973, the Board issued an order in
which it reopened the record, remanded the case for
further hearing consistent with the opinion of the
court, and directed the Administrative Law Judge,
upon conclusion of the hearing, to prepare and serve
on the parties a supplemental decision containing
findings of fact, conclusions of law, and recommen-
dations. Pursuant to notice, a supplementary hearing
was held on May 16 and 17, 1973, before Adminis-
trative Law Judge Benjamin B. Lipton.
On June 26, 1973, the Administrative Law Judge
issued the attached Supplemental Decision. Thereaf-
I On May 5, 1972, the original Charging Party, United Papermakers and
Paperworkers, AFL CIO, merged with International Brotherhood of Pulp,
Sulphite and Paper Mill Workers. The Charging Party 's name in the instant
case was amended upon the unopposed motion of the Union at the May 16,
1973, hearing.
2 Case 26-RC-393 1; decision not printed in NLRB volumes.
3 193 NLRB 881.
4 N.LR.B v. Southern Paper Box Co, 473 F.2d 208 (C.A 8, 1973).
5 Respondent presented six objections to the election on appeal to the
ter, the Respondent filed exceptions to the said
Decision and a supporting brief. The Union refiled
its brief to the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and, to the extent consistent herewith, has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his Recommendation.
Respondent objects to the conduct of the election,
in part, on the ground that, although no actual
violence of any sort occurred, threats made by fellow
employees created an atmosphere which rendered a
free election impossible.
In determining whether such an atmosphere did, in
fact, exist the Administrative Law Judge discussed in
detail all the record testimony. He discredited the
testimony of Reed, Ellis, and Hoover as to alleged
threats by Lawson, who was at that time employed
by Respondent and described by Reed as a small or
short boy. These alleged threats by Lawson included:
(a) according to Reed, who had already signed a
union card, that Lawson, who normally walked
ahead or behind her during her two-block walk home
from the plant, came alongside and was speaking
-apparently to an unidentified boy companion-of
getting another employee and a supervisor to support
the Union by "something like blow up his truck and
burn his house and take care of [them]"; (b)
according to Ellis, saying at the timeclock that he
was going to use an open pocketknife which he was
pointing toward Hoover, who was in front of him
and unaware of the incident; telling Ellis and Hoover
at the timeclock several days later that he was
carrying a gun, and then looking over at Hoover and
saying he "didn't want to catch a certain party out at
night by herself"; and (c) according to Hoover,
sitting in her parked car at lunchtime, asking her to
sign a union card-which she declined to do-and
saying she "stood a pretty good chance of losing her
job if she did not," plus saying, several weeks later,
that if she "wasn't for it, he'd catch [her] out away
from there." 6
court Objections 1, III , IV, and V, concerning alleged union nusrepresenta-
tions of wage rates and benefits, were found by the court to be insufficient
to warrant hearing and are not in issue.
6 The Administrative Law Judge noted Hoover's positive denials that she
had signed a card or given the Board agent an affidavit, both of which were
in evidence . We do not adopt his further conclusion, after discrediting
Hoover generally, that the alleged threats by Lawson-other than job loss-
if made, do not "rise to the level of actual threats."
207 NLRB No. 3
SOUTHERN PAPER BOX COMPANY 57
Concerning alleged threats by employee Keaton,7
there was conflicting testimony. The Administrative
Law Judge credited employee Andrews' account of a
threat to Williford about job loss if the Union came
in, an account which, unlike that of Williford, did
not include the alleged statement by Keaton that the
Williford family gas station "could be burglarized or
broke into."8 The Administrative Law Judge also
credited employee Valentine on the basis of plausi-
bility. Valentine denied making an alleged threat to
employee Henry, who was originally Respondent's
witness at the investigatory stage of these proceed-
ings and was neither called as a witness nor
questioned by Respondent at the hearing. Direct
examination of Henry by counsel for the Regional
Director reveals that Henry was extremely unsure of
any threat by Valentine. On cross-examination by
counsel for the Union, Henry testified: "he may have
told what I said, but I don't think he said much of
anything."
Upon review of the entire record, we find no basis
for reversing these credibility resolutions of the
Administrative Law Judge concerning alleged threats
by Lawson, Keaton, and Valentine, as urged by the
Respondent.
Concerning the bomb prank incident involving
James Whisnant, we see no merit in Respondent's
contention that the timing, a month before the
election, necessarily related to organizational activity
because there had been no such occurrence before
that activity or since. That Whisnant considered the
prank as a joke is evidenced by the fact that he did
not even search the vehicle after reading the
cardboard sign saying there was a bomb in the nose
of the trailer. We agree with the Administrative Law
Judge that there is no basis on which to attribute the
prank to the Union or any employee, or conclude
that it was related to the pending election. We further
agree with the Administrative Law Judge's analysis
of the incident involving D. L. Harkey, a supervisor,
that Charles Vaughan, in discussing newspaper
reports concerning an organizational drive at a
neighboring plant, told Harkey that if anyone
crossed picket lines, "they wouldn't do it but once."9
A remark of this sort to a supervisor, without other
employees present, could not have affected the vote.
There remains for our consideration the Harris
incident which the Administrative Law Judge viewed
as a threat, although he found it ambiguous and not
directed to an employee. According to employee
Mons, Supervisor Hall-who before being made a
supervisor on March 1,1 had signed a union card
7 We correct to read "April 6" instead of "April 16" the date of the
lunchroom incident involving James Keaton
' Inasmuch as the Administrative Law Judge'has credited Andrews, we
do not reach, nor do we concur in, his further opinion that Keaton's alleged
-walked into the printing department about 2 weeks
before the election , whereupon employee Harris
commented to Mons that if "Hall didn't change his
mind about the Union he would burn his house
down." We disagree with the Administrative Law
Judge that the threat "was ambiguous as to whether
he was speaking for or against the Union" inasmuch
as the record establishes that Harris was a well
known union sympathizer , but agree that it was not
directed at any employee . However, assuming
Harris' remark was intended as an implied threat to
Mons, despite specifying the house of Hall , we would
not, on that alone , conclude that the election was
conducted amid an atmosphere of fear or reprisal
which rendered a free election impossible . Accord-
ingly, we affirm the Administrative Law Judge's
finding that Objection II should be overruled.
Concerning Objection VI, the Administrative Law
Judge found that Brown , the International represent-
ative of the Union , responded to employee remarks
at a February 1971 union meeting , concerning the
1970 bonus cut and President Karcher 's trip to
Europe several months before the bonus announce-
ment, by saying : "Well, that 's probably where the
rest of your bonus went ." He also found that Brown
made similar statements before the election at the
homes of two employees . On March 11 , Respondent
posted a question and answer bulletin which includ-
ed the reason for the bonus cut of the previous year.
Also, the Administrative Law Judge found that
Respondent was aware of employee sentiment
linking the bonus cut and the overseas vacation of
Karcher, crediting former Supervisor Harkey that he
reported such sentiment to Respondent 's vice presi-
dent more than 2 weeks before the April 9, 1971,
election . Thus, ample time was available for Respon-
dent to respond but it did not see fit to deny any
relationship between the bonus cut and the vacation
that went before, or to supply economic data
supporting the cut . Contrary to Respondent's con-
tention, we do not find Brown's remarks ' to be
"campaign trickery" but merely a typical response in
line with then current employee speculation, to
which Respondent could have addressed itself had it
desired to do so.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Southern Paper Box Company, Little Rock, Arkan-
sas, its officers, agents, successors, and assigns, shall
statement, according to Williford's version, "would reasonably be regarded
as a vague predict" rather than a threat."
9 That Vaughan, who did not testify, also rererred to newspaper reports
to the effect that people had cars turned over "and stuff like that" is not
clear from the record. It appears that Harkey made the statement
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take the action set forth in our original Order dated
October 22, 1971, as amended November 1, 1971.
SUPPLEMENTAL DECISION
BENJAMIN B. LIPTON, Administrative Law Judge: This
proceeding was conducted before me on May 16 and 17,
1973, in Little Rock, Arkansas, for the limited purpose of
providing a formal hearing on certain objections-to an
election involving United Paperworkers International
Union,' pursuant to a remand of the United States Court
of Appeals for the Eighth Circuit.2 In Case 26-RC-3931,
the Board had certified the Union as the exclusive
representative in a production and maintenance unit
following an election held on April 9, 1971,3 and the
subsequent resolution, after administrative investigation, of
various objections filed by Respondent .4 Thereafter,
Respondent refused to honor the Union's certification, and
the Board issued its Decision and Order on October 22,
1971, finding Respondent in violation of Section 8(a)(5) of
the Act .5 The Eighth Circuit denied enforcement of the
Board's Order and remanded the case for hearing on
issues, delineated by the court, as arising from Respon-
dent's Objections II and VI. On March 28, 1973, the Board
ordered the record reopened for hearing "in accordance
with the Court's remand." 6
In consideration of the pertinent orders and documents,
the briefs filed herein by Respondent and Union, the
record at the reopened hearing,7 and my observation of the
demeanor of the witnesses, I make the following:
Findings and Conclusions
I OBJECTION II
As the court noted, Respondent indicated it had
affidavits to show that five affiants or other employees had
been threatened by still other employees with loss of jobs,
property damage, and physical violence unless these
threatened employees continued to support the Union, and
that such threats were communicated to at least 15
employees. For, the purpose of the hearing, the court
specifically laid down that the tests are to determine (a)
whether the alleged threats were in fact made; (b) how
broadly they were communicated, and whether they created
an atmosphere of fear and reprisal so as to render a free
expression of choice impossible .8 Before examining the
relevant evidence taken at the hearing , it should be
observed that Respondent persistently sought to adduce
matters not relied upon in its allegations before the Board
and the court, or in a purely exploratory search for
evidence 2 years after the events; 9 attempted to show
general elements of "atmosphere" without first establishing
the specific threats alleged; and sought to introduce remote
hearsay evidence to establish certain of the alleged threats
without offering the - direct testimony of the employees
immediately involved or undertaking to show that the
primary witnesses were not available.10
A. Richard Lawson
Several incidents involve alleged misconduct by Lawson,
then employed as a "scrapper" but who since left his
employment with Respondent and, as agreed by all parties,
was not available as a witness.
(1) Hazel Reed 's testimony : She was returning from
work to her home two blocks from the plant. "These boys
were either ahead of me every day, or behind me every
day, to and from work. And this one day one of them
walked ahead of me and one of them walked behind me,
and they was talking about they was going to `do in'
Virdon Winston's house and car, and A. G. Henry."
(Henry was an employee of Respondent, and Winston
Virden, as properly named, was a foreman.) Then she
stated that Lawson" was walking "up next to" her but she
did not know the name of his companion, except that he
also worked as a scrapper -in the plant. The two "boys"
were talking about getting employees to support the Union,
and Lawson said "something like blow up his truck and
burn his house and take care of" Virden and Henry.
Lawson did not say anything to her, and she did not know
where he was looking when he uttered the threat . She "felt"
that it was intended to apply to her. From this day until the
I The name appears as amended pursuant to the Union 's unopposed
motion granted at the hearing The charge herein had been filed by United
Papermakers and Paperworkers, AFL-CIO, which effectively merged with
International Brotherhood of Pulp, Sulphite and Paper Mill Workers,
AFL-CIO, as of May 5, 1972.
2 N L R B v. Southern Paper Box Co„ 473 F.2d 208 (CA. 8, 1973).
3 In the election, 83 votes were cast for, and 72 against , the Union, with 4
ballots challenged.
4 The Board denied Respondent's request for review containing specific
exceptions to the Regional Director's supplemental decision and cer tifica-
tion of March 11, 1971.
5 193 NLRB 881
6 The evidence uncovered by the Regional Director in his investigation
of Respondent's Objections II and VI was made available to the parties at
the hearing.
7 The hearing was conducted generally in accordance with the
procedures applicable in nonadversary proceedings-particularly in placing
upon the Respondent the burden of going forward with evidence in support
of its election objections Respondent's position that the Board or the Union
had the initial burden of producing evidence on the objections in issue was
rejected Bill's Institutional Commissary Corporation, 186 NLRB 597, fn 5.
And see N.L.R B v Griffith Oldsmobile, Inc., 455 F.2d 867, 870 (C.A. 8,
1972); Shoreline Enterprises ofAmerica, Inc. v. N.L.R.B., 262 F 2d 933 (C.A.
5, 1959)-holding that the "heavy burden" of proof is on the party seeking
to overturn the election.
8 In so holding , the court recognized "that neither Union nor employers
can prevent misdeeds or misstatements by persons over whom they have no
control, and that a rule giving the same weight to conduct by third persons
as to conduct attributable to the parties would substantially diminish the
possibility of obtaining quick and conclusive election results . Nevertheless,
representational elections will be set aside where nonparty misconduct has
taken place and such conduct is shown to have created an atmosphere of
fear and reprisal ..." citing Manning, Maxwell & Moore, Incorporated v.
N.LR.B., 324 F2d 857, 858 (CA. 5, 1963) And see Modine Manufacturing
Company, 203 NLRB No. 77.
9 In the Manning case, id at pp. 858-859, see also the holding that
evidence offered in the complaint hearing of additional preelection threats
as basis for objections need not be admitted where not shown to be newly
discovered and previously unavailable
io See Addison Shoe Corporation, 184 NLRB 333 (fn. 1), remanded 450
F.2d 115 (CA. 8, 1971). I do not construe the latter opinion of the court,
cited by Respondent in its brief, as requiring the admission of any sort of
hearsay testimony in a Board nonadversary formal hearing of this type. The
present case is distinguishable , especially in view of the broad nature of the
"atmosphere" allegation, the character of the testimony sought to be
adduced in relation to the issues , and the need reasonably to control the
evidence within the specific areas delimited by the Court.
11 Whom she described as a small or short "boy-"
SOUTHERN PAPER BOX COMPANY 59
election was over, she carried a gun in her purse at work
and at home. She did not report the threat to anyone.12
Before this incident' she had signed a union card.
Thereafter, when Lawson tried to give her a card, she told
him she already had one. Lawson asked her to pass the
card to another woman, and she did so.
It- is my distinct impression from Reed's testimony and
her demeanor that she was greatly exaggerating the facts
and the extent of her fears. The story lacks plausibility, and
I do -not believe it as given. Reasonably, any person in the
stated circumstances would have reported the matter to the
employer or the police or conveyed some warning to
Virden and Henry of such a serious threat. Nor is it
convincing that she would have thought herself the object
of the threat. Among other things, she disclosed that she
had previously signed a union card and had cooperated
with. Lawson in passing a card to another employee.13 In
any case, it was not established that the ostensible threat
was communicated to other employees.
(2) Alma Jean Ellis testified to an incident 1 week before
the election while she, Mae Ollie Hoover, and Lawson were
in a group waiting to clock out at the end of the workday.
Lawson was in front of and facing Ellis and Hoover, who
were approximately , alongside each other.14 He was
holding a pocket knife 15 "kind of down," with his thumb
on the open blade pointed toward Hoover. Ellis slapped or
hit Hoover on the back and said, "Mae, he's got a knife."
Ellis then asked him, "what are you going to do with that
knife?" He said, I'm going to use it," and " more or less
looked at Mae." Ellis and Hoover walked out of the plant
together, and no further mention was made of te knife.
Hoover testified in effect that she was completely unaware
of the incident at the time. It was not until the next day
that she learned about it from Ellis.16 On the information
she received, Hoover stated that Lawson "had a knife in
my back and I was in front of him and he was next to me
and [Ellis] was behind him."
Ellis also testified that, 2 or 3 days thereafter, Lawson
told her and Hoover at .the timeclock that he was carrying
a gun around. He "just looked over at [Hoover] and said
he didn't want to catch a certain party out at night by
herself." This occurred during a conversation in which
Lawson indicated he was going to vote for the Union.
Hoover was not questioned concerning this incident.l7
The quality of the above testimony is extremely poor.
There is no evidence in the case of actual violence by
Lawson (or by any other employee). Concerning the knife
and' gun incidents, the circumstances described are too
vague, inconsistent, and implausible to provide a sufficient
basis for holding that threats of force by Lawson were
made or reasonably to be understood. Further, it is not
shown that these incidents were discussed by Ellis and
Hoover with other employees or reported to any authori-
ties.
t2_ Previously she testified she "believes" she told employee Mae Ollie
Hoover, and also her mother and father.
13 An inconsistency is apparent and unclarified in Reed's testimony that,
prior to the election, Charles Fowler had asked her why she was against the
Union and she gave him certain reasons.
14 Ellis gave confusing and changing testimony as to the respective
positions at the timeclock
15 A "regular little pocket knife "
- (3) The testimony of Hoover raises considerable doubt
as to her reliability in view of her positive denials that she
signed a union card and that she had given an affidavit to a
Board agent, although the facts of the union card and
the affidavit were clearlyestablished.
Hoover testified in substance: About 1 month before the
election, she had a conversation with Lawson in her parked
car at lunchtime . He asked her to sign a union card, and
she declined. About 2 weeks later, Lawson told her that if
she was not going to be for the Union, she would lose her
job. He also said that if she "wasn't for it, he'd catch [her]
out away from there." She responded, "well, we'll see how
that works out."
Described in Hoover's affidavit, Lawson's assertion was
that she "stood a pretty good chance of losing her job" if
she did not sign a card. The alleged statement that he
would "catch" her "away from there" was not mentioned.
And Hoover further averred that "before the election, I
was never threatened over the union , that is, I was never
told anything would happen to me if I backed out."
Faber Hall, a supervisor, testified that a couple of weeks
before the election Hoover came to him in tears. She said
that Lawson told her she would lose her job if she did not
vote for the Union. Hall did not report this to "any top
management." Winston Virden, a supervisor, testified that
Hoover told him before the election of her conversation
with Lawson in her car at the parking lot. She said Lawson
told her if she did not vote for the Union "something
would happen." 18-
I do not credit Hoover generally. Even if made, l would
not find that such statements by Lawson rise to the level of
actual threats, 19 or that she was intimidated thereby. Nor
were the alleged statements communicated to other
employees.
B. James Keaton
Jimmy Andrews, an employee, testified concerning a
conversation in the lunchroom 2 weeks before the election.
He was seated with several persons at a table. Employee
Katie Williford said she did not know how she was going
to vote. Standing nearby, Keaton, an employee, remarked
that "if she didn't vote for that she could lose her job if the
--union went in." Williford told Keaton she did not believe
-he knew what he was talking about, and she was going to
see her boss-about it.
Williford then 'testified that at her work station one
night, Keaton asked her if she was going to vote, and she
said, no. He told her, "if the union gets in, you will be
sweeping floors." She responded, "I don't want to hear no
more on the subject." A week later, about April 16, the
lunchroom incident took place. Keaton asked her "again"
if she was voting for the Union, and she answered
negatively. He said if she did not vote for the Union that
is Ellis "could have sworn" Hoover heard her remark about the knife at
the time of the incident
17 Hoover's testimony was heard by Ellis . Ellis gave no affidavit
is This is, of course, hearsay in attempting to evidence a threat Hoover
described no threat in her own account of the car conversation, supra
79 Prediction of job loss is discussed below ; the other statements are too
vague.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she would be sweeping floors, that she "might not be
there," 20 and that a gas station operated by her family
"could be burglarized or broke into." She told Keaton she
"didn't think he knew what he was talking about," and
"didn't think he had any control over" her job.21 That day
she talked to her night foreman, a supervisor, concerning
this incident. She could not identify the persons at the
lunch table other than Andrews. She did not vote in the
election. Keaton was no longer employed, and did not
testify. There were no affidavits in the Board's file from
Andrews or Williford.
Clearly different versions were given by Andrews and
Williford, both Respondent's witnesses, and I am inclined
to credit only that of Andrews.22 I find that Williford, and
employees generally, were capable of evaluating the
source, i.e., Keaton, as lacking in authority to affect their
jobs.23 Moreover, it was not shown that Keaton's state-
ments were heard by or spread to employees other than
Andrews.
C. Richard Harris
Paul B. Mons, a' maintenance mechanic, was working in
the printing department 2 weeks before the election when
Supervisor Faber Hall walked in. Mons testified that
employee Harris told him, out of Hall's presence, if "Hall
didn't change his mind about the union that he would bum
his house down." 24 I do not credit Mons that he told it to
Hoover on the same day. In his affidavit to the Board, he
stated that he "did not repeat it to Hall or anyone else
before the election."
I find that the threat was not directed against an
employee and was not within the awareness of employees
other than Mons. As expressed, Harris' statement is
ambiguous as to whether he was speaking for or against the
Union.25
E. Otis O. Valentine
A. G. Henry, an employee, was called by counsel for
the Regional Director on the basis of an affidavit obtained
in the investigation of Respondent's objections. Henry
testified that, about 1 month before the election, employee
Valentine asked him if he was for or against the Union. He
answered he was against it. Valentine then said, in effect,
that he "should be careful because there are people around
here that might do anything." He added that if Henry kept
his mouth shut everything will be all right. Shortly
thereafter, Valentine told him that "if it went union," he
would see that Henry did not work there any more. Henry
related the conversation to his boss, Supervisor William R.
Motley, and did not know whether he told anybody else in
the plant. Motley commented that he did not know how
they could cause him to lose his job.26
I am constrained to credit Valentine on the basis of
plausibility. In any case, I would find the statement-con-
cerning people around here who might do anything-as
too vague to constitute a threat. Similar to the Keaton
remark, treated above, I could find that Henry, particularly
after the assurance he received from Motley, could well
assess Valentine's lack of power to cause the loss of any
job. And these alleged threats were not revealed to any
other employees.
F. Charles Vaughn
The Regional Director's counsel also developed through
D. L. Harkey, a former supervisor, that Vaughn once told
him, if anyone crossed picket lines "they wouldn't do it but
once." Vaughn also referred to newspaper reports to the
effect that people had cars turned over "and stuff like
that." Made to a supervisor, this type of hypothetical
comment could not have affected any employee votes in
the election.
D. James J. Whisnant
Whisnant, an over-the-road truckdriver for Respondent,
testified that, before the election, he checked the rear
section of his truck after it was loaded on company
premises. He found attached to an inside wall a large piece
of cardboard with writing on it to the effect that there was
a bomb in the nose of the trailer. He took down the piece
of cardboard and tore it up. He made no search for the
bomb and did not report the matter to any authorities. He
imagined "it was a prank or someone trying to have some
fun." After he returned from his trip several days later, he
discussed the incident with other drivers and the dispatcher
in the vein that it was a joke. In his affidavit to the Board,
there is no mention of the bomb notice. -
The bomb prank is not attributable to the Union, or to
any employee, or related in any way to the pending
election.
20 Elicited on redirect by a leading question.
21 Tending to show absence of intimidation.
22 That the gas station "could be burglarized" would, in my opinion,
reasonably be regarded as a vague prediction , rather than a threat that
Keaton himself would carry out.
23 Cf., N L.R.B. v. Griffith Oldsmobile, Inc., supra concerning employee
statements that union membership would be a requirement for holding a job
as not constituting grounds for voiding the election
G. Conclusion
In view of all of the foregoing, I conclude that
Respondent failed to sustain its "heavy burden" of
establishing that threats were made which created an
atmosphere of fear and reprisal so as to affect the free
choice of employees in the Board election. Accordingly, it
is recommended that Objection II be dismissed.
OBJECTION VI
The objection alleges that the Union through its agents
"purposely deceived the employees by stating that the
employer's president had misappropriated company funds,
using them for his personal enjoyment, and thus deprived
employees of benefits to which they were entitled." The
court indicated that the crucial questions are whether or
not a certain statement attributed to a union representative
24 Harris was not employed by Respondent at the time of the hearing, he
did not testify. Hams had driven to and from work in a car pool with Hall
and others.
25 Hall testified he had signed a union card in January 1971 and
attended some union meetings. One month before the election, on March
11, 1971, the Regional Director formally found, on a disputed issue, that
Hall was a supervisor.
26 Motley was not questioned on this subject.
SOUTHERN PAPER BOX COMPANY 61
was in fact made, and whether or not Respondent had an
opportunity to respond.
Reed, Andrews, Hoover, and Mons testified that a
statement concerning Respondent's president was made at
a union meeting'at the Rose Motel, chaired by Waylon
Brown, an International representative of the Union. I
accept Brown's testimony that the only meeting at the
Rose Motel took place on February 2, 1971.27 Andrews
gave this version, which I credit as substantially accurate:
Someone inquired whether the bonus would be cut out if
the Union came in. The reply was that present benefits
would not be cut. Someone indicated that the bonuses to
employees in 1970 were smaller than they were in previous
years. Then someone said that Respondent's president,
Raymond Karcher, had made a trip to Europe. Brown28
remarked, "well, that's probably where the rest of your
bonus went." Hoover also stated that Brown used the word
"probably," while Mons indicated he had no clear
recollection of the way it was expressed by Brown. Reed
could not identify the source of the remark, but the
substance of her testimony was similar to that of Andrews.
Mrs. Charlie Metcalf and Whisnant each testified, in
substance, that during a visit by Brown to their respective
homes before the election, Brown told them that the bonus
was cut because Karcher had taken the money for a trip to
Europe. Brown testified he "could have" made the
statement with the qualifying term such as "probably," but
he definitely told no one that Karcher did take the bonus
money for a tour to Europe.29 The distinction may be of
minor consequence. However, since Andrews and Hoover
specifically recalled the word "probably" in the context, it
appears plausible to me that Brown was consistent as to the
form in which he framed such remarks concerning
Karcher. I find that, in this manner, such statements were
made by Brown at the February 2 meeting and at the
homes of Metcalf and Whisnant.
The established practice of Respondent was to pay
yearly bonuses to the employees about September or
October, expressly predicated upon the extent of its profits,
as shown in the fiscal year ending June 30. In 1969, the
employees received the equivalent of 2 weeks' pay; this
amount was cut approximately in half in 1970. In June
1970, President Karcher went on a cruise to Europe. In
September or October, Respondent explained to the
employees by letter accompanying each payment that it
was sorry the profit this year did not justify a larger bonus.
The amount of.the annual profit was not disclosed to the
employees. As Respondent was aware, the employees
openly discussed their discontent with the bonus reduction.
Before the Union appeared on the scene (about Decem-
ber), it was spoken among the employees that Karcher
used the difference in the bonus money to finance his trip
to Europe. During the campaign, after issuance of the
direction of election (on March 11, 1971), Respondent
posted on the bulletin board a series of questions and
answers, which included the following:
If the Company is not doing so well and had to cut
bonuses-then where did they get the money to buy all
that expensive new equipment?
Answer:
We borrowed from the bank, just like you do if you
need to buy a car or any other large purchase. We had
to do this to keep up with our competition to provide
you as much job opportunity as possible.
D. L. Harkey, a former supervisor of Respondent,
testified: "It was all over the plant" that the employees
were unhappy regarding the reduction in the bonus. Three
weeks before the election, one of his employees, Willie
Ward, told him she was upset that the bonus was cut and
"Karcher had used it to go overseas and buy new
equipment." He also heard Ward making such statement
to other employees. Within a day or two, Harkey reported
such information to Vice President Raymond Cardwell.
Cardwell merely said, "it's one of those things." Harkey is
credited against Cardwell's denial. Karcher testified he first
acquired the knowledge, that such a statement was being
made concerning his trip to Europe, when he was so
informed by Traffic Manager Jerry Cardwell on April 9,
shortly following the election held that day. Jerry Cardwell
testified he learned about it for the first time when he
overheard remarks by employees in the lunchroom that
this was the reason the Union won the election. He
immediately notified Karcher.
Karcher testified that he is presently chairman of the
board, president, and general manager of the corporation.
By direct and beneficial ownership, he controls 75 percent
of the stock. The purpose of the incorporation in 1966 was
to give employees an opportunity to participate in the
ownership of the Company. Previously there existed a
partnership consisting of himself and his two sisters.
Conclusion
The bonus cut was widely discussed by employees at the
plant and at union meetings. The remarks reflecting upon
Karcher's trip circulated and were common currency
among employees before the advent of the Union. The
statements to employees on this subject emanating from
Union Agent Brown occurred on and subsequent to
February 2. In the weeks before the scheduled election on
April 9, similar statements were being made by employees
within the specific awareness of at least one supervisor and
a vice president. On its face, without clarification, the
attribution of the bonus difference to the use of Karcher
carried a certain ad hominem implication. With full respect
for the opinion of the court concerned with the question of
providing a formal hearing on prima facie issues of fact, I
consider the litigated record as having illumined the
meaning of the remarks in question regarding the Karcher
sojourn. Karcher had been and, after incorporation,
essentially continued in the eyes of the employees to be
"the Company." The severe bonus reduction was apparent-
ly difficult for the employees to accept understandably,
particularly as the amount of the bonus was linked to the
profit picture, and Respondent, for its own good reasons,
did not attempt to show the employees the precise profit
27 Reed fixed the meeting on February 2; Hoover and Mons placed it
about 3 weeks before the election ; and Andrews, confused on cross-
examination , stated it was at "the Rose City" but after the election.
28 Andrews was not sure it was Brown.
29 Brown did not recall whether the subject was discussed with Metcalf
and denied that it was discussed with Whisnant.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
figures for the year. It is a realistic recognition that
employees sometimes remark about the apparent luxuries
of their employer as having been unfairly derived from the
employees' work efforts. Here, the described statements by
employees, qualifiedly reiterated by Brown, could reason-
ably be construed in a similar vein. The Karcher trip took
place before the fiscal year end and knowledge of the
profits, and preceded by 3 to 4 months the bonus
announcement. In my view, the known context can
scarcely be likened to that, for example, of a trustee
accused of embezzling funds. The indignant language of
the allegation, i.e., misappropriating funds for personal
enjoyment, is plainly overdrawn. In this record, Respon-
dent did not, in argument or evidence, purport to show the
nature of the response it would have made to employees
before the election. If concerned with the ad hominem
innuendo, it seems to me that all Karcher could have done
was,, publicize a denial, which would have served little to
counter the employees' real resentment relating to the fact
of the bonus cut.
In all the circumstances of this issue, as now clarified, I
reach the conclusion that Respondent's Objection VI
should be overruled. I find, against the entire background,
that Brown's, statements pertaining to Karcher and the
bonus were not unknown to the employees, and were not
so misleading, or beyond the employees' own ability to
evaluate, as to materially affect their free choice in the
election. Furthermore, the facts are that Respondent,
through its supervisors, had essential knowledge of the
statements in question over a substantial period preceding
the election, that it did attempt to explain the bonus cut by
its letter and its posting on the bulletin board, and to the
extent it desired to answer the ad hominem implication
against Karcher, it had ample opportunity to do so before
the election.
RECOMMENDATION
It is accordingly recommended that the Board reaffirm
its previous findings that the Union was properly certified
and that Respondent's refusal to bargain with the Union
violated Section 8(a)(5) of the Act.