Bomber Bait Co., Inc.

National Labor Relations Board - Board Decisions

May 20, 1974

210 N.L.R.B. 673 (N.L.R.B. 1974)

BOMBER BAIT CO., INC. 673
Bomber Bait Company, Inc. and Retail, Wholesale and
Department Store Union, AFL-CIO. Case
16-CA-5210
May 20, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 13, 1973, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the Administrative Law
Judge's rulings, findings, and conclusions, only to the
extent consistent herewith.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act by threaten-
ing employee Jack Richardson, the principal protag-
onist of the Union, that if it "came in" he would not
benefit therefrom because "he would not be there
long enough." For reasons given below, we find
merit in Respondent's exception to this finding.
Following the organizational campaign, which was
commenced in May 19731 by Richardson and led in
mid-June to the parties stipulating to a consent
election,2 Respondent on July 20 called a meeting
attended by its work force of 65 to 70 employees.
Respondent President Van Calvin Ellis, the only
speaker, made the following statements: There would
be no promises or threats, and if the employees
"went union" he would negotiate with it. The
employees did not need a union because Respondent
was doing everything for the employees that could be
done. Production had been down for the past several
months.
When Ellis invited questions, employee Sandra
King asked Ellis how the Union hurt Respondent.
Ellis replied that production had dropped. King, who
was sitting next to employee Judy Muller,3 whispered
to the latter that Ellis did not answer her question
"because he probably did not have an answer."
Muller laughed and looked up at Richardson. Ellis
thereupon came over to Richardson whom he
accused of laughing at him. When Richardson
repeatedly denied the accusation, Ellis made some
remarks the exact nature of which are conceded by
the Administrative Law Judge to be in dispute.
According to Muller, Ellis told Richardson, "You
needn't to [sic] laugh because if the union goes in it
won't help you because you won't be here that
long." 4 Muller also testified that Ellis then addressed
the employees to the effect that they did not need a
union and he did not see why the employees wanted
one.
Richardson testified as follows on cross-examina-
tion by Respondent counsel: Ellis told him, "You
won't benefit from it. I'll promise you that." 5 Ellis
then turned toward the employees and said, "You
don't need a union. You don't want a union."
An additional exchange took place on further
cross-examination:
Q. And you heard every word he [Ellis] said,
didn't you?
A. Yes, sir.
Q. And you have told us every word he said?
A. Yes, sir, I told it just like it was.
Q. And then he walked back to where he had
been talking?
A. Yes, sir.
Q. You have told us every word he said,
haven't you?
A. Yes, sir, right there whenever he was
talking to me.
Q. Whenever he was talking to you?
A. Yes, sir.
Q. Well, did you hear him say anything else
when he wasn't talking to you?
A. Well, he said, "I'll repeat that you don't
need a union. You don't want a union."
Q. All right. Now, [counsel for the General
Counsel] said in his opening address [at the
hearing] that Mr. Ellis said to you, "You won't be
here long enough to find out." Or, "You'll be the
first to go." He didn't say that to you, did he?
A. What I understood him to say was just
exactly what I told you.
Q. And you heard every word he said, didn't
you?
A. Yes, sir.
The Administrative Law Judge credited the testi-
mony of both Richardson and Muller. In so doing, he
found (1) that, despite "some variance," their
accounts were for the most part consistent, and (2)
that sometimes a participant [Richardson] in an
event may not be able to recall the event as
accurately as an observer [Muller].
1 All dates refer to 1973 unless otherwise indicated 4 Ellis and several other Respondent witnesses , who were not credited by
2 As indicated in the Administrative Law Judge 's Decision , the record the Administrative Law Judge , denied that he made this statement.
does not disclose why the election did not subsequently occur S This was denied by Respondent witnesses.
3 Richardson was seated behind them
210 NLRB No. 109
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In our judgment, Muller's uncorroborated testimo-
ny as to the purported statement of Ellis-that
Richardson "won't be there long enough" to benefit
from the Union-does nbt provide an adequate basis
for finding that Respondent engaged in unlawful
conduct in violation of Section 8(a)(1) of the Act.
Contrary to the Administrative Law Judge, the
"variance" concerning the foregoing crucial state-
ment is substantial as Richardson's version differs
sharply from that of Muller. Thus, Richardson's
replies during the course of intensive cross-examina-
tion clearly reveal that he "heard every word"
uttered by Ellis and that the latter did not make the
statement attributed to him by Muller. In view of
Richardson's explicit, unequivocal, and complete
account of the July 20 encounter, we disavow the
Administrative Law Judge's speculation that Rich-
ardson may have been too involved as a participant
to recall whether Ellis made a threat which cast
doubt on the security of his job.
However, even assuming arguendo that Ellis did
make the statement in question, we are of the
opinion, in the absence of any other indication of
animus or evidence that the statement was heard by
Richardson himself or any of the assembled employ-
ees other than Muller, that it was too ambiguous as
well as too isolated and minimal6 to warrant a
finding that it violated the Act.7
Accordingly, we find that the General Counsel has
failed to establish by a preponderance of the
evidence that Respondent violated Section 8(a)(1) of
the Act. We shall therefore order that the complaint
be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
9 Walgreen Co, d/b/a Globe Shopping City, 203 NLRB No 36 , American
Federation of Musicians, Local 76, AFL-CIO, 202 NLRB No. 80.
7 Member Fanning does not subscribe to these findings as the statement
attributed to Ellis, if in fact it had been made , would have constituted a
clear threat of discharge which goes to the heart of the Act and thus is too
serious to be characterized as "minimal ." Even if the threat is regarded as
"isolated" in the absence of any other unlawful conduct , Member Fanning
would accord no weight to that factor in view of the gravity of the threat
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: Upon an
original charge filed July 5, 1973,1 by Retail, Wholesale
and Department Store Union, AFL-CIO (herein the
Union), against Bomber Bait Company (herein the
Respondent or Company), the General Counsel of the
National Labor Relations Board , through the Regional
Director for Region 16, issued his complaint and notice of
hearing dated August 16. The complaint alleges, in
essence , that the Respondent violated Section 8(a)(1) of the
National Labor Relations Act, as amended (herein the
Act), by threatening its employees with loss of benefits
including loss of employment if they became or remained
members of the Union or gave any assistance or support to
it. By its duly filed answer , the Respondent denied the
commission of any unfair labor practices.
At the trial, which was held before me in Gainesville,
Texas , on September 26, all parties were present and full
opportunity was afforded them to introduce relevant
evidence , to examine and cross-examine witnesses, to argue
orally on the record , and to submit briefs . Subsequent to
the hearing , helpful posthearing briefs were submitted by
counsel for the General Counsel and by counsel for the
Respondent, which have been duly considered . Upon the
entire record, including arguments of counsel and my
observation of the demeanor of the witnesses ,2 I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Respondent , a Texas corporation , is engaged in the
manufacture of fish lures and accessories at its Gainesville,
Texas, facility. During an annual period, Respondent, in
the course and conduct of its business operations,
purchased materials valued in excess of $50 ,000 which
were shipped to its Gainesville facility from points outside
the State of Texas . During the same period of time,
Respondent sold and distributed fish lures and accessories
valued in excess of $50 ,000, of which products valued in
excess of $50,000 were shipped from its Gainesville facility
to points outside the State of Texas.
Upon the foregoing facts , which were admitted by
Respondent, I find that the Respondent is now, and has
been at all times material , an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits , and I find that
at all times material the Union has been a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The sole issue in this proceeding is whether , by certain
conduct engaged in by Company President Van Ellis
during a speech to employees on July 20, Respondent
interfered with , restrained, and coerced employees in the
exercise of their Section 7 rights, in violation of Section
8(a)(1) of the Act.
i All dates hereinafter refer to the calendar year 1973 unless otherwise 2 Cf Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161.
indicated
BOMBER BAIT CO., INC. 675
B. The Facts
A union campaign commenced among the employees of
Respondent in May, and it is undisputed that employee
Jack Richardson was foremost in that campaign. It was he
who made the original contact with the organizer of the
Charging Union, met with him, secured union authoriza-
tion cards, and solicited a substantial number of other
employees. On the basis of the signed cards, the Union, on
or about May 30, filed a petition seeking an election.3
Thereafter, about the middle of June, a meeting was held
among representatives of the Company, the Union, and the
NLRB, in which the parties stipulated to a consent
election, and Richardson attended that meeting on behalf
of the Union.4
On July 20, shortly before 4:30 p.m., the employees were
notified by loudspeaker that there would be a meeting in
the warehouse of all employees to commence at 4:30 p.m.5
The employees (approximately 65 to 70) gathered in the
warehouse in a sort of semicircle, some sitting on boxes or
chairs, and others standing in the back. Among the
officials of the Company there were Van Ellis, the
president, John Martin, the executive vice president, and
its attorney, Allen Schoolfield, Jr. Ellis was the only
speaker at the meeting, and he advised the employees that
he had come in from Canada specifically to tell them his
side of the story; that there would not be promises or
threats and that if they "went union" he would negotiate
with the Union; he advised them of the benefits which had
occurred since he assumed control of the Company several
years prior; he further advised that the employees did not
need a union to represent them because the Company was
doing everything for employees that could be done; finally,
he advised the employees that production had been down
for the past several months.
About this point during the meeting, Ellis asked if there
were any questions. Employee Sandra King asked, "How
did the Union hurt Bomber Bait?" Ellis responded that
production had drcpped since January, and turned away.
King, who was sitting next to her sister-in-law, Judy
Muller, whispered to the latter that Ellis did not answer her
question. She further opined that "he didn't answer
because he probably didn't have an answer," and grinned.
Muller laughed and looked up at Jack Richardson, who
was sitting behind them, and he grinned.6 At that point,
Ellis came over to where Richardson was sitting and
accused him of laughing at Ellis. Richardson denied the
accusation, and Ellis repeated it. Richardson again denied
it and stated that he was not laughing at Ellis but "at those
ladies." At this point, Ellis uttered some remarks, the exact
nature of which are in serious dispute. According to
Richardson, Ellis stated, "Well, you won't benefit from it.
I'll promise you that. I'll repeat that you don't need a
union. You don't want a union." Muller, a witness for the
General Counsel, testified that in addition to Ellis'
statement to Richardson that he would not benefit from a
union, further stated that it would not help him "because
you won't be here long enough."
3 Case 16-RC-6327
4 The election, although scheduled, has never been held for reasons not
fully disclosed by the record However, such reasons are not, in any event,
relevant to the issue in this proceeding
The version given by three witnesses (aside from Ellis)
for Respondent was in substantial variance from that of
the two witnesses for the General Counsel. They (the plant
manager, a foreman, and an employee) were unanimous in
testifying that Ellis only told Richardson that it was not
funny because "it (the Union) would hurt Richardson as
much as anybody." Ellis described the incident as follows:
A. Well this meeting took place in the warehouse,
as each employee has been describing.
Well, now, each employee has been describing different
deals.
It was a hard meeting to handle. There were 65 to 70
employees. It was hard to get their attention and hold
their attention.
Now, I roam quite a bit , Your Honor . I believe you
asked this.
Well, anyway, I had to move around to see everyone,
and, like I say, try to hold their attention.
Well, as I was coming back from what, as LeRoy calls
it, the east part and walking this way and I caught the
gentleman laughing.
I then walked over to him, and I did, I am sure, point
my finger at him.
I told him, I said, "This is not a damn bit funny. This is
a serious, serious matter."
I remember saying that, just to to the exact T.
Now, whether I said exactly, "This will hurt you as
much as anyone else," well , that I won't swear to.
I know, though, that I did point my finger and say,
"This is not a laughing matter . This is not funny. This is
a serious meeting."
Q. (by Mr. Schoolfield) What did Mr. Richardson
say?
A. Well, I told him that he was laughing, like I say,
and I didn't see anything funny about it.
Then he said, "Van, I am not laughing at you."
I said, "You are laughing." Then I said, "It is not
funny. It is not a laughing matter."
I did not threaten him in any way whatsoever.
Q. All right.
Now, you heard the testimony of Mr. Richardson to
the effect that "Don't think this is going to benefit you
any. I promise you that."
A. Yes, sir.
Q. Did you say that to him?
A. No, sir, I did not.
Q. Now, you heard the testimony of Mrs. Muller to
5 Quitting time for the employees was 5 p.m
6 Credited testimony of Muller . King was in the hospital at the time of
the hearing, and did not testify.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the effect that, "If this goes union it won't help you
because you won't be here long enough"
A. Yes, sir.
Q. Did you make that statement to Mr. Richard-
son?
A. No, sir, I did not.
Following the colloquy between Ellis and Richardson,
Ellis returned to the area where he was making the speech,
spoke a few minutes more to all employees, and the
meeting came to an end.
Analysis and Concluding Findings
As is recognized by all parties, resolution of the issue in
this case rests almost wholly upon a determination of the
credibility of the witnesses. This task of a fact finder is
almost always difficult and delicate, and is certainly not
rendered less so by the circumstances of this case. In
making such resolution I have, of course, considered the
demeanor of the witnesses "along with the consistency and
inherent probability of testimony," 7 plus their interest in
the outcome of the proceedings. Finally, I have, consistent
with Board precedent,8 considered as a factor supporting
their credibility, the fact that the two witnesses who
testified on behalf of the General Counsel were current
employees testifying adversely to the interest of Respon-
dent. Further, in making the credibility assessment, I note
that all of the witnesses for the Respondent (aside from
Ellis) attributed to Ellis language which was almost
verbatim, yet could remember little else about the nature of
the incident. Interestingly enough, Ellis conceded that
when he saw Richardson laughing, "it upset me no end,"
and that he could not "swear to" the statement attributed
to him by Respondent's other witnesses. Ellis impressed me
as an excitable individual who, while making his speech, no
doubt adhered to the advice given him not to make threats
or promise benefits, but who, when excited, might well
have exceeded such bounds in a moment of exuberance. As
the court said in Hendrix Manufacturing Co., v. N.LR.B.,9
"it is what he [the employer's agent] said or did, not what
he was told to say, do, or not say or do, that counts."
Accordingly, for the reasons set forth above, I credit the
testimony of Richardson and Muller as to what Ellis said
during the incident in question. In so doing, I recognize
that there is some variance in their testimony as to what
Ellis stated. However, it does not necessarily follow that
one must be discredited in favor of the other since their
testimony is, for the most part, consistent. Moreover, it is
commonplace that one person may truthfully recall more
or less than another about the events that took place. I
have also considered that sometimes participants in any
event may not be able to recall the event as accurately as
an observer. Finally, I may say that both witnesses
impressed me favorably with their direct and forthright
responses to questions under vigorous cross-examination
by counsel for the Respondent. Under all circumstances,
therefore, I find that, on the occasion in question, Ellis
threatened Richardson with the remark that if the Union
came in he (Richardson) would not benefit from it because
he would not be there long enough. I conclude that such
remark, made within the hearing of many employees, in
the context of an antiunion speech , constituted interfer-
ence, restraint , and coercion within the meaning of Section
8(a)(1) of the Act.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
Conclusions of Law
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening its employees with reprisals should
they engage in activities on behalf of the Union, Respon-
dent interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed them by Section 7 of
the Act, thereby engaging in unfair labor practices
proscribed by Section 8(axl) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent engaged in unfair
labor practices, it will be recommended that it be required
to cease and desist therefrom and take certain affirmative
action found necessary to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
4 Universal Camera Corporation v N L R.B., 340 U S. 474. Envelope Co., 147 NLRB 1030, 1036.
8 See Georgia Rug Mill, 131 NLRB 1304, 1305, In 2, enfd as modified, 9 321 F.2d 100, 104 (C.A. 5, 1%3).
308 F.2d 89 (C.A 5, 1962), Astrosystems, Inc, 203 NLRB No. 16. Federal