(concurring).
I concur in Part I of the majority’s opinion relating to the “bonus money” objection. I reluctantly concur in Part II of the majority’s opinion and in ordering enforcement of the Board’s order directing Southern Paper Box Company to bargain with the United Papermakers and Paperworkers, AFL-CIO. My reluctance stems not from a disagreement with the majority but is occasioned by what I view as an abdication by the Board of its responsibility to assure that the results of a representation election reflect the free choice of all employees.
The present Board rule that nonparty misconduct must create an atmosphere of general fear and reprisal before an election will be set aside seems to me, as it did to the Board at an earlier stage in its history, a dereliction of its duty to assure that all employees are able to make a free and uncoerced decision as to a bargaining representative. See G. H. Hess, Inc., 82 N.L.R.B. 463, 466 (1949) wherein an earlier Board stated:
An election serves its purpose only if it affords an opportunity for all employees to register a free and uncoerced choice of bargaining representative. Manifestly, this purpose has failed of achievement where, as here, an employee has been the object of threats of bodily harm designed to thwart the exercise of a basic right guaranteed by the Act, i. e. the right to cast a ballot foi or against a bargaining representath e. We would be derelict in our duty, indeed, if, under these circumstances, we did not safeguard this right. (Emphasis in original.)
The employer in this case has a real basis for complaint. Threats and intimidation were employed by’ known union sympathizers in an attempt to influence employees’ votes. The employer’s attempt to have a hearing upon his objections was thwarted by the Board’s refusal to hold a hearing, necessitating this court’s remand in the prior enforcement proceeding. N. L. R. B. v. Southern Paper Box Co., 473 F.2d 208 (8th Cir. 1973). The employer was then hindered by the two-year delay between the election and Board hearing and by unnecessarily restrictive rulings of the Administrative Law Judge from fully developing its evidence of the threats and general atmosphere of the plant immediately prior to the election.
The Board, instead of taking a mild view of threats and intimidating tactics falling short of creating a general atmosphere of fear and reprisal, should take a strong stand against the use of any intimidating tactics employed by either party or its adherents. While Board elections are not lightly to be set aside, neither are they inviolate. More important in the election context than the interests of the Board, employer, or union in having a conclusive result is the right of each individual employee to freely express his selection or rejection of a representative without coercion.
Yet, while my views differ from those of the present Board on these policy matters and the weight of the evidence in this particular case, I am not at liberty to substitute my judgment for that of the Board. Therefore, I concur.