Gulf Coast Automotive Warehouse Co., Inc.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gulf Coast Automotive Warehouse Company, Inc. and Retail Clerks Union, Local No. 455 Char- tered by United Food and Commercial Workers International Association, AFL-CIO. Case 23- CA-6382 March 12, 1980 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 13, 1977, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, by refusing to bargain with Retail Clerks Union, Local No. 455, chartered by United Food and Commerical Workers Interna- tional Association, AFL-CIO. The Board ordered Respondent to cease and desist from refusing to bargain and to bargain upon request of Local 455. Respondent thereupon petitioned the United States Court of Appeals for the Fifth Circuit to review the Order of the Board, contending that the Board's Order should be set aside upon the ground that the Order is based on an invalid certification. Respondent argued that the Board had improperly refused to hold an evidentiary hearing on its objec- tion contending that the Union had promised to waive initiation fees for employees who signed union authorization cards prior to that election, thereby violating the rule set forth in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973), and, further, that the Board improperly overruled its objection and certified the Union. The Board filed a cross-application for enforcement of its Order. On February 5, 1979, the court issued its decision2 in which it denied the Board's application for en- forcement, set aside the Board's Order, and re- manded this matter to the Board for an evidentiary hearing on Respondent's objection. On May 11, 1979, the Board remanded this pro- ceeding to the Regional Director for Region 23 and directed that a hearing be held before an ad- ministrative law judge for the purpose of taking evidence on Respondent's objection in accordance with the court's remand. In addition, the Board di- rected that, upon the conclusion of the hearing, the Administrative Law Judge should issue a decision I 230 NLRB 881. 2 Gulf Coast Automotive Warehouse Company, Inc v N.L.R.B., 588 F.2d 1096 (1979). 248 NLRB No. 58 containing findings of fact based upon the evidence received. On November 7, 1979, Administrative Law Judge Timothy D. Nelson issued the attached De- cision 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to reaffirm its prior Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby affirms as its Order the Order heretofore entered in this proceeding on July 13, 1977 (reported at 230 NLRB 881). DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge: This remanded case was heard by me in Houston, Texas, on June 18, 1979. It arose as follows: on August 13, 1976, in Case 23-RC-4391, pursuant to a petition filed by Retail Clerks Union, Local 455, chartered by Retail Clerks International Association, AFL-CIO (the Union),' a secret-ballot election was held among a unit of fulltime and part-time employees employed in the warehouse of Gulf Coast Automotive Warehouse Com- pany, Inc. (Respondent). The Union won that election by a vote of 28 to 6. Respondent filed objections to that election which included the claim that the Union had promised to waive initiation fees for employees who signed union authorization cards prior to that election, thereby violating the rule set forth in N.L.R.B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). Following an in- vestigation thereof by the Regional Director for Region 23 of the National Labor Relations Board, and without holding an evidentiary hearing thereon, the Regional Di- rector overruled the employer's objections and certified the Union as the exclusive collective-bargaining repre- sentative of Respondent's warehouse employees. Respondent tested that certification by refusing to rec- ognize or bargain with the Union. Thereafter, in the in- stant Case 23-CA-6382, the General Counsel moved the Board for summary judgment upon its complaint that Respondent was unlawfully refusing to bargain with the Union in violation of Section 8(a)(5) of the National Labor Relations Act, as amended (Act). On July 13, l Pursuant to the Union's unopposed motion made at the hearing, the Union's name was amended to read as it presently appears above. This reflects a recent merger between the former Retail Clerks International Association and the Amalgamated Meat Cutters and Butcher Workmen of America. GULF COAST AUTOMOTIVE WAREHOUSE 381 1977, the Board issued a Decision and Order granting the General Counsel's Motion for Summary Judgment, finding that Respondent violated Section 8(a)(5) and (1) of the Act, and ordering Respondent to recognize and bargain in good faith with the Union. 2 Respondent petitioned the United States Court of Ap- peals for the Fifth Circuit for review of the Board's Order directing it to bargain with the Union and the Board cross-petitioned for enforcement of its Order. On February 5, 1979, the Fifth Circuit denied the Board's application for enforcement, set aside the Board's Order, and remanded this matter to the Board for an evidentiary hearing on the Employer's objections to the election on the above noted Savair issue.3 Pursuant to the Fifth Circuit's remand, the Board, by unpublished Order dated May 11, 1979, remanded this proceeding to the Regional Director for Region 23 for the purpose of arranging a hearing on Respondent's Savair objection before an administrative law judge and to issue notice thereof. The Board further ordered that the Administrative Law Judge prepare and serve on the parties a decision containing findings of fact based upon the evidence received pursuant to the provisions of its Order, conclusions of law, and recommendations. That hearing was held pursuant to due notice, and all parties appeared through counsel or through representa- tives and were given full opportunity to examine and cross-examine witnesses and to introduce evidence bear- ing on Respondent's Savair objection. Accordingly, pursuant to the Board's Order, upon the entire record herein, including my observation of the de- meanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. INTRODUCTION In Savair, supra, the Court held that it is objectionable conduct warranting setting aside the results of an elec- tion when a union tells employees during an organiza- tional campaign that they will not have to pay union ini- tiation fees if they sign authorization cards for the union before the election. The Court reasoned that such initi- ation fee waivers to only employees who sign authoriza- tion cards before an election permit the union "to buy endorsements and paint a false portrait of employee sup- port during its election campaign." 4 At the hearing, Respondent called three employee wit- nesses in support of its objection that the Union had en- gaged in such impermissible preelection waivers of initi- ation fees. The Union called three union representatives as witnesses. In substance, the Union's witnesses denied that the Union had ever, on any occasion, told employ- ees that initiation fees would be waived for preelection card signers. As shall be seen from the discussion below, with one minor exception, the Union's witnesses flatly contradicted the testimony of Respondent's witnesses. 5 2 230 NLRB 881 (1977). 3 Gulf Cart .4uoroive Wachosc Compan, Itce . L. R.h, 588 F2d 1096 (5th Cir 1979) " 414 U S 272 274, fn 4 a The exception being the testimony of Respondent's itness Salas, who attributed Savair- iolati e inducements to an unnamed card solicitor, The case turns on credibility and it is my ultimate con- clusion, based primarily upon the demeanor of the re- spective witnesses and the manner in which they testi- fied, that Respondent's witnesses were not believable in material portions of their testimony. A. The Testimony of Michael White It is undisputed that Respondent's warehouse employ- ee Terry McDaniels, who was not called as a witness, made an initial contact with the Union for the purpose of achieving representation in the warehouse unit. A meet- ing was scheduled and took place on or about May 5, 1976," at a coffeeshop. McDaniels invited Zone Foreman Michael White, who did testify, to that meeting. White recalled that Bob Comeaux, C. B. Smith, Isabelle Sellard, and Arlene Carrow were present for the Union.7 It is not disputed, as White testified, that one of the union agents (Comeaux, according to White) told White and McDaniels that it would be necessary to have authoriza- tion card signatures from over 51 percent of employees in the warehouse unit before the Union would be entitled to recognition, and that the agent brought out a contract which the Union had with a Kroger store for purposes of illustration of what the Union could do for Respon- dent's employees. One of the agents also told White and McDaniels to pass out authorization cards during breaks and lunch periods and during off-duty hours. After estab- lishing this background, Respondent's attorney asked White as follows: Q. With respect to gathering the cards, what if anything did the Union give you in terms of a sales talk? A. We were told that there would be no tuition [sic] fee as long as the employee signed a card before the election and those that did not sign until after the election would have to pay the fee. After clarification through a leading question that White meant "initiation fee" rather than "tuition fee." White was asked by Respondent's counsel: Q. Who gave you that instruction? A. I would say it would be Bob Comeaux. White further testified that there was nothing said by the union representatives regarding the Union's "prac- tices with respect to initiation fees" and that there was nothing said in that meeting regarding the Union's "con- stitution or bylaws." White thereafter stated that he and McDaniels passed out authorization cards during breaks and lunch hours and after hours during the next few days and, between them, secured 25 to 30 cards. White recalled personally collecting "about 15" cards. Asked how he "went about doing it," White replied: thereby making it impossible for the Union to adduce directld) onlradic- tor) testimony Unless stated otherwise all dates hereinafter are in 1976 ' Carrou and Smith credibl) testified. and I find, that also presenlt at the meetinlg s .as John Gourlay. field assistanl tI the president of the Lnlon, international hods 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I approached the employee and asked them if they wanted to join the Union, and I was asked, you know, did this card mean that they are joining or to represent them, and I told them that the card only represented them for the Union to come in for bar- gaining purposes to negotiate a contract or some- thing like that. And they asked about what the Union could do and it was like better benefits, and I think we told them paid holidays, you know, stuff that we would try to get. And I also stated that if you signed up now you wouldn't have no fee to pay, and if you signed up after the election you would have a fee. After this 2-day card solicitation interlude, White and McDaniels met again on May 7 with the same union rep- resentatives at the same coffeeshop. White testified that this second meeting was rather brief, and that the union representatives told him that the Union "needed a few more cards . . . to make our 51 percent .... " Asked by Respondent's counsel whether anything further was said "with respect to initiation fees," White replied: We were told the same thing about those who signed up before wouldn't have the fee and those after would. Asked again who made that statement during the second meeting, White replied: "I still believe that was Bob Co- meaux." White did not recall any further details regard- ing the second meeting. Within the next few days, so White testified, he and McDaniels gathered additional authorization card signa- tures. Again asked what he recalled about conversations while he was attempting to gather additional cards, White replied: Nothing other than what I stated before about better benefits and paid holidays and tuition [sic] or the fee, by paying after you sign up, I mean after the election, you would have to pay the fee. "About a week" after the second coffeeshop meeting with the union representatives, White stated that he at- tended a general organizing meeting held by the Union at a Ramada Inn which was also attended by the same union representatives identified earlier.8 White stated that the meeting was attended by between 35 and 40 em- ployees. Summarizing, White stated, "That meeting was just an open meeting for everybody to ask their own questions, you know, as to what they could expect to get into a contract. It was discussed whether, you know, they would get, how much money, or what they wanted in the contract as far as money, benefits, holidays, better working conditions." White acknowledged, at this point, that the Union did not have a majority of persons in the I Based ot( Ihe credible recollections of the Uni non'\ s itneses. corrobo- rated h the date on the authorization card signed b Respondent's II- ness Sharlene Herring (ho estified about the same "first Ramada Inn meeting" referred to by White) I find that he meeting occurred on May 19 unit signed up on authorization cards at that time. Asked first by Respondent's counsel whether there was "any discussion about signing additional cards at that meet- ing," White first replied, in substance, that more cards were passed out and were signed by persons at the meet- ing. When pressed further by Respondent's counsel whether "anything was said about initiation fees" at the meeting, White replied, "I don't recall it being said as to where I remember it, no." After a lengthy colloquy in White's absence, White re- turned to the stand and was asked whether anything was said regarding union dues at the meeting. Replying affir- matively, White was then asked whether Comeaux had said anything regarding initiation fees. This time White replied affirmatively and elaborated, saying: Other than what I have stated before, that's all I re- member, that he said that those who signed before the election would have no fees and those after would. White finally described a further "general meeting" of warehouse unit employees held approximately a week after the earlier one, likewise held at the Ramada Inn, and with about 35 to 40 employees in attendance.9 White reported that, in addition to the other union representa- tives previously named, International Representative Mi- chael Woods was also in attendance. Summarizing "what was discussed" at that meeting, White stated: This one was more or less basically the same thing that was discussed prior to the first one, but there was talk of striking, if necessary, and then the union contract, itself. When pressed by Respondent's counsel regarding wheth- er anything was said "about union cards or initiation fees," White replied, "I don't recall." While recalling that Woods did most of the talking at that meeting, White repeated that he did not recall Woods saying any- thing regarding initiation fees. B. Testimony of Dora Salas Salas testified, in substance, that "around the first week of May" she was approached at work by a fellow employee (whose identity she did not know then nor when she testified) who asked her to sign a union au- thorization card. Salas testified as follows regarding what was said to her by the unnamed individual before she signed the card: I was told to sign this card in order for the Union to represent us in negotiations or whatever, and so I just took the card and I asked, you know, I was kind of undecided, and he said, "Well, if you sign now you will not have to pay later on any fees, but if you wait until after the election then you would have to pay." The Union's witnesses credibly recalled that the "second Ramada I meeting" was on May 27 1 so find GULF COAST AUTOMOTIVE WAREHOUSE 383 Salas also testified regarding similar "rumors" about initiation fees which she had heard (apparently from her sister-in-law). C. Testimony of Sharlene Herring Herring, a bookkeeper for Respondent during the union organizational drive, saw Terry McDaniels with union authorization cards but apparently was not solicit- ed by McDaniels to sign one. She testified that she did sign such a card at the Union's "first meeting" (i.e., the same one described earlier by White which is found to have occurred on May 19). Herring recalled that ap- proximately 50 to 55 employees attended that meeting. She stated further that Comeaux, C. B. Smith, Arlene Carrow, and Isabelle Sellard were the union representa- tives in attendance. Without identifying which individual or individuals she was describing, she stated: "They kept, you know, kind of rushing us to sign them, you know, and standing around us to get us to sign them." Asked by Respondent's counsel whether anything was said by anyone regarding "initiation fees," Herring replied: Oh, yeah, they said that as far as initiation fee, there wouldn't be one before, if you got it, if you signed a card then, that the initiation fee would be none, and then if you were new and came in and signed a card then after the election, then you would have to pay an initiation fee. Herring thereafter identified Comeaux as the speaker who made those remarks. She also testified on direct examination that she attend- ed another meeting "about the end of May" at the same place, again attended by about 50 employees.'° In addi- tion to the union representatives named as appearing at the first meeting she also recalled that Woods attended for the Union. When he was asked "What was discussed at that meeting?" Herring replied, More or less the same thing that was discussed after the first one. It was better, you know, we would get better pay and better benefits, and the same thing about the initiation, that if you signed a card, you know, now, there wouldn't be an initiation fee. If you sign a card now there wouldn't be any initi- ation fee and then if you came in after the election, you would have to pay. Herring was unable to attribute the foregoing remarks to any particular person at the second meeting, however. She further testified that she attended other union meet- ings thereafter but did not recall that the subject of initi- ation fees was ever again discussed. On cross-examina- tion, confronted with her affidavit given to the Board during the investigation of Respondent's objections to the election, Herring retrenched and amended her testi- mony to say that she did not recall there being any men- '" Found t hbe hc a. 27 meting a the Ramada Inn dl rhed e:rll- er by While tion of initiation fees except at the first of the two meet- ings which she described (i.e., the one on May 19). D. Testimony of the Union's Witnesses 1. Arlene Carrow Arlene Carrow, a newly employed organizer for the Union, was in attendance at the May 5 and 7 meetings between the Union and employees White and McDaniels in the coffeeshop. In addition to the persons named by White as being in attendance at the May 5 meeting, Carrow said that John Gourlay, field assistant to the Union's divisional director, was also present. Carrow, Isabelle Sellard, and C. B. Smith were, in Carrow's words, "brand new on the [Union's] staff' and were re- ceiving training in organizing from Gourlay. Carrow tes- tified that the subject of initiation fees was not raised at either the May 5 or 7 coffeeshop meetings with White and McDaniels. With respect to the May 19 and 27 general organizing meetings held at the Ramada Inn, Carrow also recalled that Gourlay was present for the Union in addition to herself, Sellard, and Comeaux. She recalled that Smith was not present at the first May 19 meeting. Carrow stated that the subject of initiation fees was not raised at the May 19 meeting. With respect to the May 27 meeting, Carrow stated that that meeting included Union Representatives Co- meaux, Michael Woods, Isabelle Sellard, and herself. She did not recall whether Smith was in attendance. She definitely recalled that Gourlay was not there. She testi- fied that there was no mention of initiation fees at this May 27 meeting either. Carrow did recall, however, that the subject came up at a later Ramada Inn meeting. According to Carrow the subject arose as follows: The question was asked about do they have to pay initiation fees and stuff like that, and Mr. Woods ex- plained to her that no one would be asked to join this Union, no one would be asked to pay union dues or initiation fees. After-what he did explain to them was that after ratification of the meeting, after ratification of a contract signed by the Compa- ny and by the Union, that those employees that joined the Union before 30 days after ratification would be, would not have to pay an initiation fee, and those that signed up for the Union after that 30 days after ratification would therefore pay an initi- ation fee. 2. C. B. Smith Smith corroborated Carrow's recollection as to the presence of Gourlay at the May 5 coffeeshop meeting with White and McDaniels. He likewise recalled that Gourlay was present at the May 7 coffeeshop meeting with White and McDaniels. He testified that the subject of initiation fees did not arise during either such meeting. On cross-examination, however, Smith acknowledged that he may have not been present during the entire second coffeeshop meeting on May 7. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith was not present at the "general" meeting with Respondent's employees on May 19 at the Ramada Inn. He did attend subsequent general organizing meetings, however, including on May 27, and on approximately five other occasions, the last one being on August 12. Smith recalled that the subject of initiation fees did arise "at a couple of the meetings that was conducted by Mike Woods ..." (and after the May 27 meeting). Smith further recalled that a question arose about the union policy re- garding initiation fees after Respondent put out some campaign literature on the subject. According to Smith: Mr. Woods explained the fact that after a contract had been ratified and signed by both the Company and the Union, 30 days after that no one-during the first 30 days, no one would be required to pay an initiation fee. Anyone choosing to join this Union 30 days after a collective-bargaining agreement had been reached between the Company and the Union, they would be required to pay an initiation fee. ' 3. David Michael Woods This witness, referred to throughout the record as Mi- chael Woods, has been employed by the Union or its In- ternational since 1972, with one 3-month break in service 3-1/2 years earlier. For the past few years he has been an International representative doing organizing work in a nine-state area. He spent about a third of his time as an organizer for the International within the Houston area, involved in about 25 or 30 organizing programs. Accord- ing to Woods, since he first became employed by the Union in 1972, the Union has had a standard "practice" concerning initiation fees as follows: Anybody wishing to join the Union within 30 days after the ratification of a contract, we waive the ini- tiation fee if they join in that period of time. If they don't join within the 30 days, they will be required to pay the initiation fee. Elaborating, Woods stated that this practice applied to "anybody within the bargaining unit" without regard to whether or not they had been employed prior to the rati- fication of a union contract. Woods recalled that in his capcity as director of orga- nizing for the Union, he attended all "general" employee meetings with Respondent's employees from May 27 and thereafter. In one such meeting he recalled the issue of initiation fees being brought up by one of the warehouse employees. On that point Woods testified: The question that was brought up, as I guess earlier has been testified to, the Company had put on cam- paign of literature regarding dues, fines and assess- ments and whatnot. i i As Smith recalled it. Wooids, x as "talking aiboult itilltioII fees i ref- erence to propaganda fr,,it literature put iou bh the Cormpanl refer- ring to the high dues aid the high salaries aid the ice cr, and nice clotlhes ad Ihc iitiation fees that ' charged by uniitns An employee brought up, "What about the large initiation fees that we have to pay?," and I an- swered the question, as stated before, "The general policy that we have within the local union and the international." d* * * I * I told that employee and the rest of them while we were in a group at that meeting the same thing, that if they were there or employed during the time that the contract was ratified, anybody there at that time, within 30 days thereafter, would not be re- quired to pay an initiation fee. Anybody there after that 30 days would be required to pay an initiation fee. Woods' recollection was that that subject came up "at one or two of the meetings" immediately following this first appearance at the May 27 meeting, linking that testi- mony to his recollection that "the Company didn't start their campaign until that time." II. CONCLUDING FINDINGS Focusing for the moment on the testimony of White and Herring, it is plain that, if credited, either of their accounts would sustain Respondent's objection under Savair. In its post-hearing brief, Respondent devotes most of its argument to the proposition that, if White and Her- ring are credited, then it does not matter, as the Union has argued, that Woods may have dispelled any earlier misapprehensions among Respondent's warehouse em- ployees about the Union's policy with respect to the waiver of initiation fees. Without reiterating its argument on that latter point, I agree with Respondent to that extent. Thus, were I to conclude that White and Herring testified truthfully and accurately, I would find that Re- spondent had sustained its burden of establishing that the Union was responsible for statements made to substantial numbers of employees in the prospective voting unit which violated the Savair strictures. After careful study of their testimonial demeanor, however, I formed the distinct impression that both White and Herring were untruthful witnesses. Both of them seemed studiedly vague on material points of testi- mony, being seemingly unwilling to attribute specific statements to specific agents of the Union, and relying instead on conclusionary characterizations. Neither did either witness indicate any ability to recall the context in which alleged Savair-violative statements were made- again suggesting to me that they had no genuine recol- lection of the events in question. Each of them further required considerable prompting before "recalling" that improper waiver statements were made. 12 a As noted supra. regarding While's account of the Ma) 19 meleting. he first professed no recolleclion of any statemenls about iniliatiiT fees Follos kitng a colloquy among the Adinisirative L.avk Judge and counsel. during Nwhich While aras excused. he rclurned anid ras again sked the same question This ime, inexplicahl . ie ptofessed to recall thait ution agents did speak ahout l ilittion fee a the MiN! 9 meeting his nierel illnfirllled all iilptsiiil sshich I had lreid, firnicd ilhOl \i lhite -- hal he was tilorinig ad shaping his testionii . hsed on his iassunmptions C ijttllcd GULF COAST AUTOMOTIVE WAREHOUSE 385 White, particularly, testified in a wooden manner, rit- ualistically attributing the same Savair-violative "magic words" to vaguely identified union agents in virtually every encounter he had with them. Similarly, I found in- credible White's testimony that he used those same "magic words" in each and every instance of solicitation in which he engaged.'3 I am further moved to believe that White was untruthful by comparing what he said during the original investigation of Respondent's objec- tions with his testimony at the hearing. As characterized by the Fifth Circuit, White's investigative affidavit stated 14 that "as he distributed authorization cards to employees, he repeated the challenged [preelection initi- ation fee waiver] statements, previously told to him by union agents. ... [and that] a majority of employees in the unit returned signed cards to him. [Emphasis supplied.]" Ibid. Of course, \White's testimony at the hearing was substantially different as to the number of employees whom he personally solicited to sign cards. As he ac- knowledged, White's solicitation was directed at fewer than a majority of unit employees. The efforts of White and cosolicitor McDaniels together, according to White, resulted in obtaining fewer than a majority of cards, thereby requiring the Union to seek additional signatures at the May 19 and 27 meetings. I am inclined to draw the inference from this discrep- ancy and from White's testimonial demeanor, that, from the very start, White has shaped his testimony to support a finding that the Union, through White's actions alone, tainted its preelection campaign with Savair-violative statements. And even if this inference were strained due to the limited evidence before me, I cannot ignore White's discrepant accounts in testing my own impres- sions noted above about White's apparent unreliability. In short, White's demeanor and the quality of his testi- mony was so poor that I would place no credence in his accounts of key matters, absent independent, reliable cor- roboration. Turning to Herring's testimony, it was only barely corroborative of White's, and reflected to me the same degree of suspicious vagueness and inconsistency, war- ranting the inference that it was the product of inven- tion. Comparing her testimony about the May 19 and 27 meetings with White's reveals little in the way of reliable corroboration except in their conclusionary statements that Comeaux' s made classically Savair-violative state- ments. Neither were my doubts about Herring resolved about hat Respondenl's counrsel anted to hear-and that he had no genuine recollection that initiation fee saiver statements sere made is Surel. among those employees honl W'hite approached here must have been at least some who ould not have to hear a iitiation- fee aier statement heftre cutting White off in his "sales pitch" and tell- ing hint hat the \tiould ignl union card 14 Whiltes aifidasil stas ilt iitroduced at the hearing I am relying here on he Fifth Circuit's characteriation of its contents 588 F 2d at 1099 Is The record sho, s that the rname "Comcaux" was suggested o White by Respondent's ciu sel as the union agent ho ittered these re- marks White did not deperndenitl recall ConcaLN its the speaker Her- ring agreed that Conieltix nmade the Srtr-solaie statements ithout direct suggestion from Respiondcnt's counsel. but Herring sas also pre- sent during White's prim testnimonn, and I do no diicoauit the likelihood that counsel's earliher suggestion of the name prompted Htrring's tlestimo ny in this regard in her favor by her seeming willingness to attribute im- proper initiation-fee waiver statements to union agents at both the May 19 and 27 meetings. 16 By contrast, each of the Union's witnesses testified with a far greater appearance of sincerity and conviction, and with far greater contextual recall than did White and Herring about the same events. Carrow, particularly, struck me as an alert and attentive person with a genuine memory for the events occurring in the May 5 and 7 cof- feeshop meetings, and in the May 19 and 27 "general" meetings at the Ramada Inn. I was likewise very favor- ably impressed with Woods' demeanor and apparent sin- cerity in testifying about what he admittedly did say on the subject of the Union's policy respecting initiation-fee waivers in one or more post-May 27 meetings with Re- spondent's employees at the Ramada Inn. Regarding Salas, her testimony would not establish, of itself, that Savair-violative statements occurred in more than her own instance of card signing. 8 Finally, while not decisive in my discrediting of White, Salas, and Herring, the following considerations seem to me to further undermine the truthfulness of their respective accounts: I. If, as is undisputed, it was the Union's general policy to require no payment of initiation fees from any unit employees employed at any time up to 30 days after a union contract was reached with Respondent and rati- fied by the Union's members, why would the Union sys- tematically announce a different policy-especially one which so plainly runs afoul of the Savair test and which, through widespread communication to employees (as White and Herring would have me believe), would be readily discoverable by Respondent and would constitute an ample basis for upsetting any election victory by the Union'? 2. In a "right-to-work" State, such as Texas, why would the Union recklessly risk violating the Savair rule when it could be presumed that substantial numbers of employees would be unmoved by initiation-fee "waiver" statements in any case, because they could never be re- quired to join the Union in order to keep their jobs. and, therefore, could never be forced to pay an initiation fee? In addition to the considerations just noted. I have studied the record as a whole and have given lengthy I After first testifying glibhl that someone (she couldn't recall sh ho) reiterated an improper s"aiser statement at the Ma' 27 meeting, she just as glibly retracted and amended that teslirnoni hen confronrted i ith her o n nconsistenl affidavit gi, en during the original Ins esigatlon of the hbjections (7 Crediting Woods. as corroborated bh Carrots and C B Smith. ',hat Woods did say on that sthJjecl did nolt iolate the Saiir strictutire Respondent does not argue olhersise (R I reject as unreliable hearsa, Salas arious aittenpt to tlunteer what she had heard "around" (from her sister-in-las) o) the subhject of Initiation fee d ali ers Apart from the ustUImar llnreI lahitl if such tes- timotis, the a i xn \hich sih s estimony from Salai emerged suggested that she ila oerl! eager ito discredit the Unloll' s orgallinitig camnpaign likes ise, her statemenl that she as "kind of unldecided hCefore the lun- named) stlici tor uttered Ihc ffe nse "magic l ords." sIruck ie ais l sl- cere, self-,erl uig. ilad urelilable It is useful to recall here that "an eploec , thouight (or fter- thottJghl,) as lo s \\h he signed a uiln card canlllio[ gatlse he oiS er action f ha\ ig signed .I cardl designaittig a Wtltlit as harglllilig agent " Jt S .I/A. Inc .\ I. R B. 185I F 2d '32, '4. crt ldentied 341 t S 914 (D C Cir 1950) ad cask cited 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and serious consideration to the other "probabilities" for the purpose of testing whether or not my impressions re- garding the unreliability of White, Salas, and Herring ought to be acted upon and, in fact, be critical to my res- olution of these issues. While not insubstantial arguments may be made either way from a consideration of the record as a whole and from consideration of the inherent probabilities of the situation, I have found nothing so persuasive in either area as to warrant setting aside those credibility impressions. Admittedly, the Union's interests in the outcome must be taken into account in evaluating the reliability of the testimony of Carrow, Smith, and Wood. Therefore, had White, Salas, and Herring made a more favorable impression on me, or had their testimony been more reliably corroborated, the fact of the Union's interest in the outcome might well have been decisive in resolving credibility in favor of Respondent's case, not- withstanding the seeming sincerity of the Union's wit- nesses. But, as the Fifth Circuit observed, Respondent bore a "heavy burden"' 9 in seeking to support its claim that the Board's secret-ballot election was so tainted by the Union's alleged preelection misconduct as to warrant ignoring the election results and directing a new election. Based on all of the foregoing considerations, I conclude "' 588 F.2d at 1099. See. also, e.g., Harlan #4 Coal Company v N.L.R.B., 490 F.2d 117, 120 (6th Cir. 1974); N.L.R.R v. Mattison Ma- chine Works, 365 U.S 123 (1961). that Respondent failed in that burden by presenting only the unreliable accounts of White, Herring, and Salas. Having so determined, I hereby render the following: CONCLUSIONS OF LAW I. 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 mean- ing of Section 2(5) of the Act. 3. Respondent failed to show that the Union engaged in conduct preceding the August 13, 1976, election war- ranting setting aside the results of that election. Recommendations Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, and the Board's remanding instructions, it is hereby recommended that the Board enter an Order against Respondent containing the same cease-and-desist provisions and affirmative remedial action provisions as are contained in the original Order of the Board herein reported at 230 NLRB 881, 883 (1977), all in accordance with that portion of the Board's Decision and Order cap- tioned "The Remedy." 20 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.