Idaho Egg Producers

IDAHO EGG PRODUCERS 93 course of their employment to perform services for the Company , and by inducing and encouraging employees of other employers to engage in a concerted refusal in the course of their employment to transport or otherwise handle commodities or to perform services for the Company, an object thereof being to require the Company to recognize and bargain with the Respondent Union as a representative of com- pany employees in an appropriate unit, notwithstanding the fact that Ann Sabino had been certified by the Board as the exclusive representative of all employees in said appropriate unit, engaged in unfair labor practices within the meaning of Sec- tion 8 (b) (4) (C) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The allegations of the complaint that Zachery L. Freedman , as agent for the Respondent Union, engaged in unfair labor practices, have not been sustained. [Recommendations omitted from publication.] Appendix NOTICE TO ALL MEMBERS OF BONNAZ , HAND EMBROIDERERS , TUCKERS, STITCHERS, PLEATERS UNION, LOCAL 66, INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relationg Act, as amended, we hereby notify you that: During the effective period of the certification issued by the Regional Director for the National Labor Relations Board on October 15, 1953 , in Case No. 2-RM-535 , or any other certification by the Board of a bargaining represen- tative, other than the undersigned labor organization, we will not engage in, or induce or encourage the employees of Gemsco, Inc., or of any employer, to engage in, a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on , any goods, articles, materials, or commodities, or to perform any services , where an object thereof is to force or require the aforesaid Company to recognize or bargain with the undersigned Union in the collective-bargaining unit of employees cov- ered by such certification. BONNAZ, HAND EMBROIDERERS, TUCKERS, STITCH- ERS, PLEATERS UNION, LOCAL 66, INTERNA- TIONAL LADIES' GARMENT WORKERS' UNION, AFL, Labor Organization. Dated---------------- By------------ ---- --------- ---------- ----------- (Agent or representative) By---------------------------------------------- (George Triestman) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. IDAHO EGG PRODUCERS and TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS UNION, LOCAL 983, AFL. Case No. 19-CA-924. Jan- uary 6,1955 Decision and Order On March 23, 1954, Trial Examiner Martin S . Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and 111 NLRB No. 12. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Idaho Egg Pro- ducers, Pocatello, Idaho, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 983, AFL, as the exclusive representative of all employees at the Respondent's Pocatello, Idaho, plant, including truckdrivers, but excluding office clericals, guards, professional employees, and supervisors as defined in the Act. (b) Interrogating employees concerning their membership in or activities on behalf of Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 983, AFL, or any other labor organization, in a manner constituting interference, restraint, or coercion in viola- tion of Section 8 (a) (1) of the Act; fostering the impression upon employees that the Respondent was keeping union activities under surveillance ; threatening employees with loss of employment by in- stalling labor-saving machinery in reprisal for union activities; offer- ing and granting employees Saturdays off to induce them to abandon any union; threatening to deprive employees of their Christmas bonus and other privileges customarily enjoyed by them if a union succeeded in organizing the plant; and granting employees paid time off for the purpose of withdrawing from any union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such i As the record , exceptions , and brief adequately present the issues and positions of the parties , we deny the Respondent's request for oral argument 2 In section III B of the Intermediate Report, the Trial Examiner inadvertently re- ferred to Slayden's remarks on October 26, instead of September 26. IDAHO EGG PRODUCERS 95 right may be affected by an agreement requiring membership in a labor organization, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 983, AFL, as the exclusive representative of all employees at the Respondent's Pocatello plant, including truckdrivers, but excluding office clericals, guards, profes- sional. employees, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such un- derstanding in a signed agreement. (b) Post at its plant at Pocatello, Idaho, copies of the notice at- tached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Nineteenth Region, in writing, within ten (10) days from the date of this Order, as to what steps it has taken to comply herewith. In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their mem- bership in or activities on behalf of Teamsters, Chauffeurs, Ware- housemen and Helpers Union, Local 983, AFL, or any other labor organization, in a manner constituting interference, re- straint, or coercion in violation of Section 8 (a) (1) of the Act; foster the impression upon our employees that we are keeping union activities under surveillance; threaten our employees with loss of employment by installing labor-saving machinery in re- prisal for their union activities; offer and grant our employees Saturdays off to induce them to abandon any union; threaten to 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deprive our employees of their Christmas bonus and other privi- leges customarily enjoyed by them if any union succeeded in or- ganizing our plant ; or grant our employees paid time off for the purpose of withdrawing from any union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organi- zation as a condition of employment in conformity with Section 8 (a) (3) of the Act. WE WILL bargain collectively , upon request, with Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 983, AFL, as the exclusive representative of all employees at our Pocatello, Idaho, plant, including truckdrivers, but excluding office clericals, guards, professional employees , and supervisors as defined in the Act, with respect to wages, rates of pay, hours of employment, and other conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement. IDAHO EGG PRODUCERS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding is brought under Section 10 (b) of the National Labor Relations Act, 61 Stat . 136, herein called the Act, and is based upon a charge filed by Team- sters, Chauffeurs, Warehousemen and Helpers Union , Local 983, AFL, herein called the Union, against Idaho Egg Producers, herein called Respondent.' The General Counsel of the National Labor Relations Board thereafter issued a complaint dated January 12, 1954, against Respondent, alleging that it had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. Copies of the charge, complaint , and notice of hearing thereon were duly served upon Respondent. In substance, the complaint alleged that Respondent on and after September 22, 1953, had failed and refused to bargain in good faith with the Union as the exclusive representative of its employees in an appropriate unit and that Respondent had un- lawfully questioned and interrogated its employees concerning their union activi- ties; had threatened employees with loss of holidays and loss of a Christmas bonus if the Union organized the plant ; had promised employees Saturdays off, shorter hours, and additional overtime if the employees abandoned their union activities; had offered and given employees paid time off and free transportation to the union hall 1 The pleadings were amended at the hearing to reflect the correct name of Respondent. IDAHO EGG PRODUCERS 97 for the purpose of withdrawing their union application cards; and, pursuant to its promise, did give its employees Saturdays off in return for their withdrawal from .he Union. In its duly filed answer, Respondent denied the commission of any unfair labor practices and denied that the Union was or is the majority representative of the employees. It alleged that: The employees had not selected a bargaining repre- sentative by means of a Board election; the authorization cards obtained by the Union were procured through coercive and unlawful means; said cards were there- fore void and of no effect; and any statements to employees by management were merely statements of company policy and protected expressions of opinion. Pursuant to notice, a hearing was held at Pocatello, Idaho, on January 25 and 26, 1954, before Trial Examiner Martin S. Bennett, duly designated by the Associate Chief Trial Examiner. The parties were represented by counsel who participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce relevant evidence. At the close of the hearing, the parties were given an opportunity to argue orally and to file briefs. Oral argu- ment was waived and a brief has been received from Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Idaho Egg Producers is an Idaho corporation which is engaged in the purchase of feed and feed supplies and in the marketing of eggs and poultry for its members. It maintains five plants in the State of Idaho, including a plant at Pocatello which is the only plant directly involved in this proceeding. Respondent annually purchases for its Pocatello plant raw materials, supplies, and equipment valued at approxi- mately $800,000, of which about 20 percent is shipped to the plant directly, and the remainder indirectly, from suppliers located outside the State of Idaho. It annually markets and ships from its Pocatello plant products valued at approximately $1,000,000, of which 40 percent is shipped to points outside the State of Idaho; the remainder is shipped to customers within the State of Idaho who are engaged in com- merce within the meaning of the Act. I find that Respondent is engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 983, AFL, is a labor organization which admits the employees of Respondent to membership. 111. THE UNFAIR LABOR PRACTICES A. The organizational campaign The issues herein are whether, following immediately upon the initial organization of Respondent's Pocatello plant by the Union, Respondent unlawfully interfered with, restrained, and coerced its employees, and refused to bargain with the Union. Insofar as the record indicates, Respondent's Pocatello plant has never been or- ganized by a labor organization. An organizational campaign was commenced by the Union sometime prior to September of 1953, and this culminated in a meeting of employees conducted by Secretary and Treasurer Clarence Lott of the Union on Tues- day evening, September 22, 1953 The meeting was attended by 18 or 19 of the ap- proximately 27 employees in the bargaining unit, as well as by Lott, Business Agent Dewey Doss, and 2 nonemployees who were union supporters, namely, Marvin Herzinger, husband of employee Erma Herzinger, who is a steward for the Union at another plant, and by the husband of another employee A number of union cards were signed during this meeting as well as on the previous day. Lott explained to the employees assembled at the meeting on September 22 that a majority had signed authorization cards and that if Respondent would acknowl- edge this fact negotiations could commence at once He stated that if Respondent did not acknowledge this, a petition for an election would be filed with the Board, and bargaining negotiations would be delayed until-the Union was certified. After the view was expressed by the employees that Respondent would not grant immediate recognition to the Union, Lott announced that the Union on the following morning would file a petition for an election and would also request Respondent to bargain Some concern was expressed by the employees at the meeting lest the names of 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization card signers be divulged to management. Lott assured them that the Union would not reveal any of their names to Respondent, and that, in any event, it would be necessary for the cards to accompany the representation petition to the Regional Office of the Board in order to demonstrate support of the Union by em- ployees.2 On September 23 the Union wrote to Respondent as follows: Mr. C C. SLAYDEN, Idaho Egg Producers, Pocatello, Idaho. DEAR SIR: A majority of your employees has signed authorization slips des' ignating Teamsters Local #983 as their bargaining agent regarding wages and conditions of employment. Therefore, we request a meeting with you in the next five days. Please notify this office to (sic) a time that is convenient for you to meet. Return receipt requested. This letter, was received on September 24 by Cecil Slayden, who is branch manager of the plant and the chief representative of Respondent at the plant. In fact, insofar as the record indicates, there is but one other supervisory employee in the plant, Foreman C. F. Talbot, who is subordinate to Slayden. On September 24 the Union filed a representation petition with the Board in Case No. 19-RC-1391, seeking an election among all employees of the Pocatello plant, excluding office clericals and supervisors On September 26 Slayden replied as fol- lows to the Union's request of September 23 for a meeting. This letter was prepared on Respondent's letterhead which indicates that Respondent has five branches and that this particular letter emanated from Respondent's branch office at Pocatello. We hereby acknowledge your letter of September 23, 1953, pertaining to the organization of our employees of the Pocatello branch of the Idaho Egg Producers. Matters of this kind are not within the jurisdiction of this office. We are therefore forwarding your communication to the General Office at Caldwell, Idaho for consideration of the management and Board of Directors of this Farm Cooperative Association. Very truly yours, IDAHO EGG PRODUCERS, By (Signed) C. C. Slayden, C. C. SLAYDEN, Branch Mgr. As will appear, certain conduct attacked herein by the General Counsel was engaged in by Slayden on and before September 26. On Monday, September 28, Lott and Doss visited the plant and introduced themselves to Slayden. in their representative capacities. They informed him that a majority of the employees had signed authorization cards; that it was the duty of the Union to represent these employees; and that the Union had received Slayden's letter referring them to the Caldwell office. It may be noted that Caldwell is located approximately 200 miles from Pocatello. Lott asked Slayden whether the Caldwell office would contact the Union directly or whether information from that office would be relayed to Slayden, the branch manager at Pocatello, and thence to the Union. Slayden replied that he had not been advised concerning the policy of the Caldwell office in the matter and specifi- cally whether it would deal with the Union or, on the other hand, request an elec- tion. After a discussion of statements made by Slayden to employees on the pre- vious Saturday, September 26, the meeting ended. Lott was not thereafter con- tacted by the Caldwell office of Respondent and it does not appear that he ever contacted that office. On October 1 the Union and Respondent entered into an agreement for a consent election; the signer for Respondent was its general manager, one Brockman, whose office is apparently at a location other than the Pocatello office. The representation petition was withdrawn by the Union on October 29, and this was approved by the Regional Director for the Nineteenth Region on November 2, 1953. B. Interference, restraint, and coercion The majority of Respondent's employees are women who work inside the plant, primarily at egg candling, whereas the male employees perform outdoor operations 2 Presumably having in mind the requirements of Section 101 17 of the Board 's State- ments of Procedure. IDAHO EGG PRODUCERS 99 such as loading and delivery. The leaders in the organizational campaign of the Union were female employees Ruthe Jensen, Donna Christenson, and Erma Her- zinger, aided by Marvin Herzinger, husband of Erma, who was a steward in the Union and employed by another concern in the area. These three employees, at times accompanied by Marvin Herzinger, visited and spoke to employees in con- nection with signing cards on September 21 and 22, 1953. The record discloses that Branch Manager Slayden, who on September 24 re- ceived the Union's demand for recognition, actually learned of the September 22 meeting, the only one held by the Union, on September 23 from at least two employees, namely Ora Panter and William Hoffman, both card signers; in fact, as will appear below, Slayden soon thereafter claimed to be aware of the identities of the union adherents. Slayden then proceeded to take the following moves in the period between his receipt of the union request for recognition and his reply dated -September 26 wherein he informed the Union that its request for a meeting was not within his "jurisdiction" and that he was forwarding its letter to Caldwell for consideration by Respondent's board of directors. Although Slayden in his letter of September 26 to the Union stated that matters involving collective bargaining were matters for consideration by the general office of Respondent at Caldwell, his conduct on and before that date demonstrates that he did consider it within his jurisdiction to take steps to counteract the union organizational campaign which had succeeded in signing up a majority of employees by September 22. Slayden took the initiative in the matter by summoning Ruthe Jensen, a leader in the union organizational campaign, to his office on the morning of September 24.3 Slayden initially asked why she had done what she did, to which Jensen did not reply. Slayden then stated that he knew the names of all employees who had signed cards; that this information had been brought to his attention by employee William Hoffman on the previous day; and that he, Slayden, had learned from various sources that Jensen was "one of the main ones." Jensen replied that she would not lie to Slayden and that it was true that she was one of the leaders in the movement. Slayden asked why she had not come to him directly with the problem. She replied that she had at an earlier date approached him for a wage increase but that "we couldn't get it." Slayden stated that if the Union organized the plant there was "nothing in the Union deal" that assured the employees of receiving their bonus; this referred to the annual bonus paid at Christmas to each employee and consisting of $2 per month, apparently for the calendar year. Slayden went on to state that he had plans in the safe for the installation of machinery that would substantially reduce the number of personnel required to operate the plant. It may be rioted that these plans for the installation of labor- saving machinery had been in Respondent's possession for 2 years and their exist- ence was known to the employees. However, Slayden admitted at the hearing that he had not arrived at any decision to install the machinery. During the talk Slayden asked Jensen what it was that the employees wanted. Jensen replied that they were interested in receiving higher wages and getting Satur- days off.4 Slayden stated that he could not give the employees more money but that he would try to get them Saturdays off. At the end of the interview, Slayden called in employee Hoffman to verify to Jensen the fact that he, Hoffman, had in fact divulged the names of union adherents to Slayden. Hoffman admitted that he had done so and commenced to cry, whereupon Jensen left. The foregoing findings as to the conversation on September 24 are based upon the credited testimony of Jensen . Here as elsewhere in the case a determination of what actually took place between Slayden and his employees is a difficult one. Slayden's testimony in many respects was in agreement with that of Jensen, but in others was not. He admitted summoning Jensen to the office; that he asked her why she had started his union troubles; that he questioned her concerning the demands of the employees; and that she stated the employees wished more money 3 Jensen placed the incident on this date ; Slayden claimed that it took place on Septem- ber 25, but was not entirely certain of the date This incident took place the day after employee Hoffman divulged the details of the September 22 meeting to Slay den on Septem- ber 23. Slayden's testimony also discloses that September 24 was probably the date, in view of the sequence of events concerning the Hoffman incident ; I therefore have accepted Jensen's testimony herein. In any event, it is immaterial to this issue whether the inci- dent took place on September 24 or 25. * The female employees then worked 6 days a week ; their hours wei e from 7 a. in to 4 p. in. Monday through Friday, and from 7 a in. to noon on Saturday. 844058-55-vol. 111--S 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Saturdays off. He admitted that he brought up the possibility of the installation of machinery if wage demands were too high. Moreover, he admitted at one point that he told Jensen the employees "could bargain with him." At the hearing Respondent stressed the fact, as Slayden further testified, that he informed Jensen that the question of payment of a Christmas bonus depended upon "the union contract." And it is true that Jensen, on cross-examination and in response to a leading question, as well as thereafter on redirect, also testified that the payment of higher wages and the bonus as well as getting Saturdays off depended, according to Slayden, upon the union contract as finally written. Para- doxically, however, Slayden at one point testified that no mention was made of a contract. Although I consider the resolution a close one, the foregoing findings have been made based primarily upon Jensen's testimony on direct examination which is sup- ported by Slayden's admissions. In so finding, I am impressed by the fact, as will appear below in more detail, that Slayden took the initiative about 1 week later in uni- laterally giving the employees Saturdays off, an action which I deem inconsistent with his claim that he had stressed that the receipt of benefits depended upon the union contract, a contention which, if true, might lead me to view this episode differently. Also accorded weight herein is the fact that Slayden admittedly intro- duced the threat of economic loss to the girls by technological change and he did not peg the introduction of this new equipment to the provisions of the union contract. Finally, also accorded weight herein, is the fact that Slayden admittedly invited the employees through Jensen to bargain with him directly. After leaving Slayden's office, Jensen returned to her duties as an egg candler, the category in which almost all the female employees were employed, and, as she testified, reported to the female employees what Slayden had said, save for his statement that he knew the names of all who had signed union cards. Thereafter, and for the next few days, there was considerable discussion among the employees concerning Slayden's remarks to Jensen. Employee Donna Christenson, who worked alone in the egg cartoning room in the basement and who was one of the leaders in the union movement, was also approached by Slayden on September 24. According to Christenson, Slayden spoke to her that afternoon, while she was at work, and asked her what she knew about the Union; Christenson disclaimed any knowledge beyond that possessed by the other employees. Slayden proceeded to state that he knew who had started the Union, as was the fact, and that he had been advised that Christenson was one of the leaders in the movement, which was also the fact. Although stating that it made no difference to him whether or not she joined the Union, he added that if the Union "went in" the employees would not be "getting off" 5 or 10 minutes before the lunch and closing hours, respectively, as had been the practice, and that they also would not receive a Christmas bonus.5 Sometime between September 24 and 26 and probably on the morning of Sep- tember 24, Foreman Talbot, admittedly a supervisory employee, approached Christenson; stated that Respondent had received a letter from the Union, appar- ently the letter received on the morning of September 24; and asked what Christenson knew about the Union. He also stated that Slayden had been given the names of the union adherents among the employees by employee Bill Hoffman; it may be noted that Hoffman and Christenson, as well as several others, had been in the group that originally contacted the union representatives, and Hoffman had also been present at the meeting held on September 22. Talbot went on to state that if the Union "did come in it was going to be a lot harder for everyone because .. . there wasn't going to be any shirking at all, that there would be someone to make sure that the work was done and that we weren't loafing." 6 The next activity of significance took place at the plant on Saturday morning, September 26; the regular working hours for Saturdays were then from 7 a. m. to 5 These findings are based upon the forthright testimony of Christenson, who impressed me as an honest witness Slayden was not questioned concerning this incident, but gen- erally denied threatening employees with the loss of any existing privileges or benefits Slayden also approached Christenson on September 25, as she uncontrovertedly testified, and asked if she had heard a rumor to the effect that if the Union "didn't go in" the em- ployees would be discharged I deem this testimony inconclusive, and, in the absence of further explanation of the statement, I have based no adverse finding on the September 25 incident 9 This finding is based upon the uncontroverted testimony of Christenson ; Talbot was not questioned concerning the incident. IDAHO EGG PRODUCERS 101 noon. Here, too, there is considerable testimony of a highly conflicting nature in the record and I have given considerable thought to a determination of what actually took place on this morning. My findings are set forth below and the reasons therefor will follow. It is clear that Plant Manager Slayden did address the employees on this Saturday morning and probably on 2 different occasions , although some witnesses were unable to recall more than 1 talk . Still others were unable to state which of his remarks were made on his first visit and which on the second . Without determining the precise text of each speech, I find that Slayden, shortly after the start of work that morning, appeared in the egg-candling room and instructed the girls to cease their gossiping and return to work; it appears that this talk among the employees related to the pros and cons of the Union. Slayden continued by stating that he did not know why they tried to bring a union in because if they had come to him he would have done whatever was possible for them and might have been able to work it out so that the employees thereafter had Saturdays off. He said that if that was what they wanted he would try to get them Saturdays off. Slayden went on to state that they could work out matters without involving the Union and that while it was up to the employees whether or not they joined the Union, if they did he would be unable to let them off early and pay them until the closing hour, as he occasionally did on Saturdays. He also saw fit to men- tion that he could install machinery which would eliminate a lot of jobs, if they brought a union in. Shortly after this speech, Slayden was advised that considerable sentiment existed among the employees in favor of withdrawing from the Union. He again visited the egg-candling area and informed the girls that he knew of their sentiment in favor of withdrawal from the Union. He stated that those who wished to withdraw could complete the particular task they were engaged in, and, if they wished, could leave at that time to withdraw their cards. He added that his automobile was available to them for that purpose, that they could have time off for that purpose, and that they would be paid until noon. The employees generally concluded their work by or be- fore 11 a. in. that day. Slayden also approached two female employees who worked in the box room, stated that they could have time off to withdraw from the Union, and that he would furnish transportation if they desired it. A group went to the union hall with the intent of withdrawing their cards and then telephoning the other employees at the plant as to the procedure to be followed. The union hall was closed, however, and they so advised the other employees at the plant. It is noteworthy that employee Carrie Monroe, a leader in the withdrawal movement on September 26, saw fit to speak to Slayden when she telephoned the plant, rather than other employees, and advised Slayden of their inability to with- draw the cards. It may be noted that this group, including Monroe, did not avail itself of the offer of Slayden's car but rather used their customary private transportation. Monroe later succeeded in telephoning Secretary and Treasurer Lott of the Union and was advised by him that the cards had been sent to the Regional Office of the Board in support of the representation petition. The record discloses that the employees were paid up to noon that day, their cus- tomary closing hour, although the last of the employees to leave work that day was through by 11 a. in., an hour Slayden admitted to be unusually early. The prepon- derance of the evidence discloses that in the past employees were paid up to noon on Saturdays when their work terminated between 11:40 a. in. and noon, but that they did not leave the plant before 11:50 or 11:55 a. in. This Saturday, the record dis- closes, was a normal Saturday and there was additional work of an identical nature which the employees could have performed that morning after the completion of the particular tasks on which they were engaged. Slayden also saw fit to speak to a group of several employees who were waiting in an automobile pending receipt of information from the group led by Monroe on September 26. He told them that if they wanted something in the plant to ask him for it and if it was possible he would provide it. He stated that if they wished Sat- urdays off they should have come to him directly as he believed he could work out something for them. The employees did not work on the following Saturday, October 3, and they have since been on a 5-day, 40-hour week. The record does not disclose the total hours worked during the week ending October 3; nor does it disclose precisely what day, prior to October 3, they were advised that the workweek had changed. How- ever, their workweek was changed by lengthening the workday to compensate for the lc3s of time on Saturdays. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The findings as to Slayden's remarks on October 26 to the employees are based upon a synthesis of the testimony of Erma Herzinger and Evelyn Pharris. They were partly corroborated by Janet Stoddard who attributed certain statements to Slayden at his first talk on September 26 or an earlier occasion; however, Slayden had not spoken to the employees as a group on an earlier occasion on this topic and I find that Stoddard, a somewhat reluctant witness for the General Counsel, re- ferred to September 26. Moreover, Lott and Business Agent Doss credibly testified that they visited Slayden on September 28 and that he admitted to them he had told the employees on the previous Saturday, September 26, that he could install machinery which would eliminate some jobs; a similar remark it may be noted, was admittedly made by Slayden to employee Ruthe Jensen on September 24, as found above. The General Counsel and Respondent did produce a number of witnesses whose testimony concerning Slayden's remarks on September 26 was confined solely to in- structions to get back to work; a statement that he had been informed they wished to withdraw from the Union; that those who wished to withdraw could finish their present tasks and leave for that purpose if they wished; and that his car was available for that purpose. They did not dispute that they were released early for the purpose of withdrawal from the Union with pay until noon .7 There are, in my belief, several significant disparities in the testimony of this group of witnesses, which serve to cast doubt upon the reliability of their testimony. (1) Carrie Monroe, who testified for the General Counsel, became strongly op- posed to the Union and was a leader in the group which sought to withdraw on September 26 after Slayden's speech to the assembled female employees. She spe- cifically denied that Slayden had said anything to the employees about the possibility of getting Saturdays off. Although demonstrating, while on the stand, her hostility to the General Counsel, she admitted that she "might have" informed the representa- tive for the General Counsel about 1 week prior to the hearing that Slayden on Sep- tember 26 had told the employees they might get Saturdays off if things worked out satisfactorily. When next asked if Slayden had in fact made this statement on Sep- tember 26, she replied, "He might have. I am not sure." In view of her demon- strated hostility to the prounion faction in the plant, I deem her admissions, stated above, to be significant and believe that they seriously impair the reliability of her testimony. (2) Carrie Tofanelli, a reluctant witness for the General Counsel, originally testified that she did not recall Slayden making any references to Saturdays off in his September 26 remarks. She later admitted on the stand that she had informed the representative for the General Counsel approximately 1 week earlier that Slayden had told the employees on September 26 that they could have Saturdays off if they wished it and testified further that Slayden had in fact made this statement. On cross- examination by Respondent, she replied in the negative to the question whether Slayden had said anything beyond that the employees should get back to work and that, with respect to the Union, the employees could join or not as they chose. (3) As heretofore noted, Slayden proceeded to give the employees Saturdays off, commencing the following Saturday, October 3, although there is absolutely no evi- dence that Respondent had such a plan under consideration, and they have since re- mained on a 5-day week. This serves to corroborate the testimony to the effect that he had promised them such a benefit in his remarks on September 26. While Re- spondent attempted to show that this was a regular procedure when work was slack, the record does not support this contention. Firstly, even on the basis of Respondent's claim, Saturdays were previously not worked only in the slack season; however, the 5-day week was instituted between Sep- tember 26 and October 3, 1953, and was still in effect as of the date of this hearing late in January of 1954, an apparently permanent change. The fact is that there is no evidence that Respondent had such a move under consideration until Slayden took the initiative on September 24, asked employee Ruthe Jensen what the employees wanted, and was informed that, inter alia, they wished Saturdays off. Moreover, when Respondent did give the employees Saturdays off commencing on October 3, 1953, it was on the basis of otherwise increasing the daily hours Monday through Friday to make up the lost time and thus maintain the former total of 40 hours per week. Significantly, there is no evidence that the daily hours had ever been changed in this manner in the past. 7 Slayden admitted that he told the group of employees at the automobile that there was a chance they could be given Saturdays off. Otherwise his testimony, which I do not credit, comported with that of the witnesses in the above-identifled.group. IDAHO EGG PRODUCERS 103 Secondly, at least several of the female witnesses for Respondent testified that they had regularly worked Saturdays in the past. The testimony most favorable to Respondent came from Carrie Monroe who testified that she had "several" Saturdays off in 1952, and from Thora Panter, an employee since 1951, who testified that she did not work on Saturdays when things were slack "in the summertime of 1952." Slayden claimed that the girls had Saturdays off for a 6-week period during the months of July and August 1952, when business was slow; there is no evidence that the employees received this day off at any time during previous years. However, Slayden elsewhere testified that the plant was busy only in the months of July and August and that the slack season lasted from August through June, a 10-month period. He also admitted that work was steady during this 10-month period. All this I deem and find inconsistent with the claim that Respondent gave its employees Saturdays off in October of 1953 because of a temporary slackness of work. Thirdly, at one place in his testimony, Slayden admitted that he had given the employees Saturdays off, commencing on October 3, because the employees through Jensen had asked for it on September 24 and that he then agreed to try it out. I find, therefore, that Respondent placed its employees on a 5-day week, abandoning Satur- day work, on October 3 pursuant to the conversation on September 24 when Slayden asked what it was that the employees wanted and also pursuant to his remarks on Sep- tember 26. I further find that such a move was not previously under consideration by management and that it was not caused by slackness of work. In fact, the record warrants the finding, as Ruthe Jensen, an employee of 8 years' tenure, testified, that the employees had always worked on Saturdays; that when business was slow those employees with the least seniority were released from Saturday work; and that Satur- day work as such was required of the remainder. Significant here is the fact that Carrie Monroe, despite 11 years in Respondent's employ and a witness favorable to Respondent, could cite only "several" Saturdays in 1952 as instances when Saturdays were not worked. Conclusions In considering the merits of the General Counsel's contention that Respondent has engaged in an unlawful campaign of interference, restraint, and coercion, it may initially be noted that Slayden did not address his remarks to employees as part of the preparation of a case before the Board, because he specifically advised the Union that matters involving union representation were not within the jurisdiction of his office and were to be taken up with the Caldwell office 200 miles distant. Nor was his purpose merely to ascertain the extent of the union organizational campaign be- cause he had previously been informed thereof in detail by two employees on Sep- tember 23, this information including, in fact, the names of the union leaders. The simple answer is that Slayden considered the matter of elimination of the union majority among his employees to be within his jurisdiction and interjected himself into that issue, unlike the matter of union recognition which he specifically referred to a distant office. Thus Slayden took the initiative on September 24 by summoning Ruthe Jensen, a leader in the organizational campaign, to his office. I find that Slayden on this occasion intended the foreseeable consequences, of his conduct in calling Jensen to his office and speaking to her in this vein, namely, that Jensen, a leader in the union movement, would report his remarks to her coworkers. Cf. Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17. I find that Slayden's statements to Jensen on September 24, uttered in the reasonable ex- pectation that they would be relayed to employees, and in fact substantially relayed to employees on that date, were violative of the Act in the following respects: (1) By, in the context of this case, questioning Jensen concerning her union activi- ties. N. L. R. B. v. West Coast Casket Co., Inc., 205 F. 2d (C. A. 9). (2) By stating that he knew the names of all who signed union cards and that Jen- sen was a leader in the union campaign, thus fostering the impression that he had been engaging in surveillance of union activities. F. W. Woolworth Co., 101 NLRB 1457, and Knickerbocker Plastic Co. Inc., 96 NLRB 586. (3) By telling Jensen that Respondent was considering replacing employees with mechanical equipment. While Respondent had considered this move for some time, significantly, it had arrived at no decision with respect thereto. I find, therefore, that Respondent introduced the possibility of technological change as a threat of reprisal for union activities. (4) By telling Jensen, after eliciting from her the information as to changes the employees wanted, that he might be able to improve working conditions by granting them Saturdays off, one of the changes desired by the employees. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that Respondent's conduct was violative of the Act in the following addi- tional respects: (5) The interrogation on September 24 by Slayden of employee Donna Christen- son concerning her knowledge of the Union ; his statement that he knew the identity of the union leaders and that Christenson was among them , again fostering the belief that Respondent had engaged in surveillance of union activities ; and the threat that if the Union organized the plant the employees would not receive their Christmas bonus and would lose their existing privilege of leaving work 5 or 10 minutes ahead of the scheduled hour at lunch and at the end of the work day. (6) The interrogation on September 24 of Christenson by Foreman Talbot con- cerning her knowledge of the Union; his statement that Respondent knew the names of the union adherents among the employees , again fostering the belief that Respond- ent had engaged in surveillance of union activities ; and his statement that if the Union did come in working conditions would be "a lot harder for everyone"; I find that this latter statement reasonably had reference to changes to be imposed by Respondent. (7) Slayden's statements to the assembled employees on September 26 wherein he stated that had they come to him instead of the Union he might have been able to get them Saturdays off; his offer to try to get them Saturdays off; and Slayden's granting of paid time off for the purpose of withdrawal from the Union.8 (8) Slayden's statement on September 26 to another group of employees that he believed he could work out a change in working conditions so as to eliminate the requirement for Saturday work. (9) The granting of Saturdays off instituted between September 26 and October 3, effective October 3, pursuant to Slayden's thinly disguised promise on September 26 to grant the employees this improvement in their working conditions. I find that by the above-enumerated instances of conduct , Respondent has inter- fered with, restrained, and coerced its employees within the meaning of Section 8 (a) (1) of the Act. Nor is it germane, as Respondent stressed, that some of the em- ployees allegedly were not intimidated by Respondent's conduct. The test is whether Respondent engaged in conduct "which may reasonably be said to interfere with the free exercise of employee rights under the Act." Joy Silk Mills v. N. L. R. B., 18S F. 2d 732 (C. A., D. C.), cert. denied 341 U. S. 914. I find that Respondent's con- duct in this case reasonably had such an effect. See Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., supra. As stated by the Supreme Court in the last-cited case, in evaluating Section 8 (a) (3) of the Act, and in disregarding testimony by an employee that the employer's discrimination had neither encouraged or discouraged his union membership, "We read this language to mean that subjective evidence of employee response was not contemplated by the drafters, and to accord with our holding that such proof is not required where en- couragement or discouragement can be reasonably inferred from the nature of the discrimination." See also N. L. R. B. v. Syracuse Color Press Inc., 208 F. 2d 502 (C. A. 2). C. The refusal to bargain 1. The appropriate unit The complaint alleges and Respondent 's answer admits that all employees of Re- spondent's Pocatello plant, including truckdrivers but excluding office clericals, guards, professional employees, and supervisors, constitute a unit appropriate for the purposes of collective bargaining. The parties stipulated that there were 26 named employees in the appropriate unit on September 24, 1953, the day that Re- spondent received the Union's request for recognition. The parties further stipu- lated that the unit might or might not be increased by the addition of one employee, Velma Armstrong, depending upon what the testimony disclosed with respect to the nature of her duties at the time material herein. Turning to the case of Armstrong, I believe that emphasis must be attached to the period between September 24 and 26, because it was then, as shown above, that the Union's request for recognition was received by Respondent and that Respondent en- gaged in the conduct heretofore described. Armstrong, in her latest period of em- ployment with Respondent, commenced work in June or July of 1953. Respondent's records which allegedly show the precise nature of her duties at various dates were not available at the hearing and Armstrong's testimony on the subject was marked by some uncertainty. It appears, however, that during a previous period of employment with Respond- ent, Armstrong had worked as an egg candler, a job within the scope of the delineated 8I do not rely herein on Slayden's offer of the use of his automobile for transportation to the union hall which was not accepted by the employees IDAHO EGG PRODUCERS 105 unit. She returned to Respondent 's employ in June or July of 1953 as an office clerical, a classification specifically excluded from the unit. However, in August of 1953 her duties were changed and her workweek was divided so that she spent Mon- days, Tuesdays, and Fridays on egg candling, and Wednesdays, Thursdays, and Sat- urdays in the office at clerical duties . With Saturday then a 5-hour day, it would appear that slightly over one-half of her time was devoted to duties performed by others within the appropriate unit. The problem here is to determine when Armstrong abandoned this arrangement in favor of her present part -time employment of 3 days a week devoted exclusively to office clerical work. In this respect, Slayden testified that Armstrong was em- ployed on the divided workweek basis for a period of 6 weeks to 2 months during August and September, and that "she candled right up until about the first of October," after which she was changed to her present part-time position as an office clerical. Respondent's records, according to Slayden, classified Armstrong as an egg candler during the months of August and September 1953. In view of the foregoing , I find that during the months of August and September, and particularly between September 24 and 26, 1953, the greater portion of Arm- strong's time was devoted to duties as an egg candler ; that she was placed by Re- spondent in the same classification as that of a majority of the female employees in the unit; and that this brought her within the scope of the unit . I find, therefore, that during that period Armstrong had a substantial community of interest with her coworkers who are included in the appropriate bargaining unit, and that she is prop- erly included in the bargaining unit for the period of the alleged refusal to bargain. I further find that the above-described unit, consisting of 27 employees and including specifically Velma Armstrong, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Majority representation in the appropriate unit In support of the allegation that the Union represented a majority of the 27 em- ployees in the unit the General Counsel introduced in evidence 16 union designation cards signed by employees of the Pocatello plant of Respondent on September 21 and 22, 1953; all appeared to be in order and Respondent does not attack the authenticity of the signatures thereon. Fifteen of these cards were identified by credible witnesses who witnessed the signatures to the cards . In addition, 13 of the 15 cards were either identified by the respective signers thereof or else the signers admitted that they had signed cards on the indicated dates of September 21 and 22. The 16th card was that of employee Erma Herzinger who identified her own card. The record indicates, as Erma Herzinger and Ruthe Jensen credibly testified, that two other employees , Carrie Monroe and Nina Cordell , signed cards on September 22, or shortly before, designating the Union as collective -bargaining representative; the cards were turned over to Secretary and Treasurer Lott of the Union and they were mislaid by his office personnel . Lott's testimony was substantially to the same effect. The testimony of Jensen with respect to the Monroe card is buttressed by the fact that Monroe admitted she had signed a card on or about the indicated date; however, Cordell did not testify herein. Under the circumstances Monroe's card may properly be considered as a 17th designation of the Union , furthermore, in view of the secondary evidence with respect thereto which I accept under the circumstances, I find that Cordell also designated the Union as her collective -bargaining represent- ative, this constituting an 18th designation. Respondent has attacked the validity of some of the cards, claiming that they were obtained through fraudulent tactics and that, as a result , the Union was not selected by a free choice of the employees of Respondent . The facts are as follows: Although Zina Jensen's card was not one of the cards relied upon by the General Counsel as proof of the union majority, Respondent contended that the tactics alleg- edly used in the case of Jensen demonstrated the type of tactics which perforce were used in other cases. However, not only is there no evidence that the tactics claimed by Respondent to have been used in this instance by Erma Herzinger were used in other instances , but, in addition , the record does not support Respondent 's conten- tion herein as to Jensen. The record shows that Jensen signed a card, on or about September 23 at the request of Erma Herzinger ; that 5 minutes later Jensen changed her mind and asked Herzinger to return the card; and that the card was forthwith returned by Herzinger to Jensen. Respondent relies on Jensen's testimony on direct examination that she signed the card after Herzinger solicited her signature and that Herzinger on this 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasion stated, "it is for your protection. Otherwise if the union goes in you will be fired." Herzinger, a clear and forthright witness whose testimony is credited here as elsewhere, denied that she had ever threatened Jensen or anyone else with discharge if she did not join the Union. Moreover, when Jensen repeated, on cross-examina- tion, the statements allegedly made by Herzinger, her version was substantially differ- ent, as were the implications thereof. On this occasion, Jensen testified that Her- zinger solicited her signature on September 23 and stated "that it was for my pro- tection; if I wanted to have protection, O. K., the union would protect me if I joined the union; otherwise I would be fired." Moreover, she further testified that Herzinger did not say that if the Union came into the plant and Jensen was not a member Jensen would be discharged. This latter version would indicate, and I find, that Herzinger did not threaten Jensen on this occasion. At the very most, it would appear that Herzinger explained that the Union would protect Jensen, if she joined, against punitive or retaliatory action by Respondent, a statement which lacks any- thing of a coercive nature. Russell Going is another employee on whose testimony Respondent relies herein; he signed a union card on September 21 and his case differs from that of the other employees in that he was at the time a member in good standing of the Union. Going presented differing versions of what took place when he signed his card. He originally testified that several female employees asked him to sign because a ma- jority had signed or had promised to sign and that one of these employees, identity not recalled, said that Going would be "fined" if he did not join the Union. On cross- examination, he testified that it was employee Bill Hoffman, not one of those who solicited his signature, who told him on another occasion that he might be fined by the Union if he did not sign a card; it may be noted that Hoffman had no connection with the Union and did not solicit Going's signature for a card. Going again repeated that the female employees asked him to sign, and that it was Hoffman who stated "there might be a chance of it [a fine] but I never did get the straight of it." [Emphasis supplied.] I find, in view of the foregoing, that Going's signature was not procured by those who solicited it on the basis of a threatened fine. Moreover, Going stated that he took no action with respect to terminating his union membership and did not know, as of the date of the hearing, whether he was still a member, although he allegedly paid no dues thereafter. Going testified that he decided to "let it ride to see what would happen ." Signifi- cantly, Going believed that he would be given an opportunity to vote in a Board election and, according to Foreman Talbot, was one of a group who, at a later date, still expressed a desire that the matter go to a vote. In view of Going's union membership at the time, namely September 21, 1953, I find that Going may properly be counted as one of those who selected the Union as a bargaining representative. Bernard Godfrey testified that he signed a card on September 21, that Mr. and Mrs. Herzinger and Donna Christenson solicited his membership on that date, and that "They gave me to understand, I won't say they told me, but they led me to understand that most of the employees had signed these slips and they didn't want 60 or 70 or 80 percent, but they wanted a hundred percent." [Emphasis supplied.] According to Godfrey, he later discovered that he had been among the very first to sign. Other evidence discloses that Godfrey was about the sixth to sign on September 21, although the record does not disclose how many, prior to Godfrey's signature, had previously promised to sign. Significant here is the fact, according to Foreman Talbot, that Godfrey at a later date was among those who still desired that the matter go to a vote after the Union had withdrawn its petition because of Re- spondent's unfair labor practices discussed above. In view of the foregoing, and particularly Godfrey's unwillingness to testify that the three named individuals actually made these statements to him, I conclude and find that Godfrey was only stating his conclusions as to what was told him when his signature was solicited, rather than what was said, and that there is no valid basis for refusing to count his card herein. Respondent also adduced the testimony of Thora Panter who signed a card on September 22. Insofar as her testimony indicates, she signed a card after attending a union meeting on that date and there is no evidence of her solicitation, proper or otherwise According to Panter, she regretted her decision to sign a card and, on the following day when she met Slayden in the plant, spoke to him and informed him that she was sorry that she had joined the Union. He allegedly replied that she could withdraw or stay in the Union as she chose. However, Panter elected to do nothing further about the matter until September 26 when she allegedly IDAHO EGG PRODUCERS 107 decided to withdraw, subsequent to Respondent's unfair labor practices discussed above, and was in the group that went to the union hall on that date. However, I am more impressed by the fact that Panter, who voluntarily signed a union card on September 22, apparently without personal solicitation, took no affirmative steps to rescind that action prior to September 26 and prior to Re- spondent's conduct on that date. Her conduct is more impressive and is of more substance than her statement to Slayden on September 23 that she was sorry that she had signed a card because, despite his reply that she could withdraw or stay in as she chose, she patently preferred to keep the status quo, namely, to stay in. I find that Panter's card should properly be counted as evidence of the union ma- jority. See E. H. Sargent and Co., 99 NLRB 1318, and Kelly A. Scott, 93 NLRB 654. Gene Ellsworth testified that he signed a card prior to the union meeting held on September 22 and that he did not know its purpose when he signed it. He admitted, however, that he was told by Ruthe Jensen, who solicited his signature, that it was for the purpose of holding a meeting "to discuss the benefits, if any, with the union." I do not deem this inconsistent with the purposes of union repre- sentation and find that Ellsworth, who is not illiterate, intended to do precisely what the card indicated on its face, namely, designate the Union as bargaining repre- sentative. See Hunter Engineering Company, 104 NLRB 1016. Conclusions I am not unaware of the various cases, cited by Respondent, which condemn, and properly so, instances where a union card majority has been obtained through coercive or fraudulent tactics; however, such is not the case here. And I am also in agreement with Respondent that an election conducted under Board auspices is a far more desirable and reliable means of ascertaining the true views of em- ployees on the issue of union representation. In fact, the Union was initially in agreement with Respondent on that issue, inasmuch as it petitioned for an election on September 24, but withdrew its petition only after the commission of unfair labor practices by Respondent. But if, on the other hand, Respondent's unfair labor practices, as found above, have made the conduct of a fair and objective election impossible, and I so find, equity requires, if not demands, that the card check procedure should be resorted to in order to effectuate the purposes of the Act. It seems anomalous and indeed flies in the face of the "unclean hands" doctrine of equity to conduct an election at the behest of the creator of conditions that prevent the conduct of a fair election because employees have been subjected to improper pressure. Section 9 (a) of the Act provides that a union designated or selected by a majority of the employees becomes their exclusive bargaining representative without regard to how that fact is established, whether by cards, petitions, or strike. As one court has said, the "Act requires no specific form of authority to bargain collectively. . . . It is only necessary that [the union authorization] be manifested in some manner capable of proof whether by behavior or language." Lebanon Steel Foundry v. N. L. R. B., 130 F. 2d 404 (C. A., D. C.), cert. denied 317 U. S. 659. See also N. L. R. B. v. Bradford Dyeing Ass'n., 310 U. S. 318, and N. L. R. B. v. Samuel J. Kobritz, 193 F. 2d 8 (C. A. 1). And, as recently stated by another court, "Although the result of a secret election may well be the most convincing means of expression, the election medium is by no means exclusive." N. L. R. B. v. Indianapolis Newspapers, Inc., 210 F. 2d 501 (C. A. 7). The record amply demonstrates that on September 26, subsequent to Slayden's statements to the employees on September 24 and 26 hereinabove found to be viola- tive of the Act, the employees readily adopted his suggestion that they withdraw from the Union. Although this decision on their part was not formalized, due to the absence of the cards, it must be assumed that the employees of Respondent repudiated the Union on September 26. The language of the Supreme Court in a strikingly similar case which, if any- thing, was not as strong as the present one is of interest. The Court there stated: "Petitioner cannot, as justification for its refusal to bargain with the Union, set up the defection of union members which it had induced by unfair labor practices, even though the result was that the union no longer had the support of a majority. It cannot thus, by its own action, disestablish the union as the bargaining repre- sentative of the employees, previously designated as such of their own free will." Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678. I find, therefore, that at all times material herein, and particularly on September 24 and 26, the Union, having been validly designated as bargaining representative 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by 18 of the 27 employees then in the bargaining unit, was and is the representative of the employees in the above-described appropriate unit, for the purpose of col- lective bargaining, within the meaning of Section 9 (a) of the Act. 3. The refusal to bargain As heretofore set forth, the Union achieved a majority status among the em- ployees in the appropriate unit on September 22. Its letter to Respondent, an- nouncing its majority status and asking for a meeting, was received by Branch Man- ager Slayden on September 24. On September 26 Slayden replied to the Union, stating that matters of this nature "are not within the jurisdiction of this office" and that the letter was being forwarded to Respondent's office at Caldwell for consideration by Respondent's management and board of directors. On October 1 Respondent and the Union entered into an agreement for a consent election which was not held due to the subsequent withdrawal of the representation petition by the Union. What impresses me as the crux of this case is that Slayden, who on September 26 referred the Union's request for a meeting to another office 200 miles distant, almost contemporaneously on September 24 and September 26 engaged in unfair labor practices, as found above, whose only objective was clearly to destroy the union majority and to bring about the repudiation of the Union by the employees; in fact, Slayden achieved his objective on September 26 because the record shows that the employees, after his talks on that date, turned against the Union. Had his statements on September 24 and 26 been confined to protected expres- sions of opinion, the case might be viewed in a different light. The fact is, how- ever, as found above, that he raised the possibility of the employees being replaced by mechanical equipment, a change not then decided upon by Respondent; fostered the impression that Respondent was engaging in surveillance of union activities, after ascertaining that the employees wanted such a change, stated that he might be able to give the employees Saturdays off, a move not previously under consideration by Respondent; interrogated employees concerning union activities; and gave them paid time off in order to withdraw from the Union. He, as well as Foreman Talbot, told an employee that existing privileges might be curtailed and working conditions made more onerous if the Union entered the plant. All these acts of interference, restraint, and coercion constituted an attempt to undermine and destroy the Union's position as majority bargaining agent and con- stituted a rejection of the collective-bargaining principle. On this record, Re- spondent cannot contend, because it did not then contend, that it entertained any doubt as to the Union's representative status. Significant herein, and illustrative of bad faith, is the fact that Slayden engaged in this conduct at the very time that he took the position with the Union that the problem of meeting the Union was not within the jurisdiction of his office and referred the Union to Respondent's Caldwell office. See Georgia Twine d Cordage Company, 76 NLRB 84. That Respondent succeeded in its objective of destroying the union majority affords it no privilege to "reap the benefits of its obstructive and unlawful acts." N. L. R. B. v. Poultry Enterprises, Inc., 207 F. 2d 522 (C. A. 5). The Supreme Court has stated that "The unfair labor practices of the respondent cannot operate to change the bargaining representative previously selected by the untrammeled will" of its employees. N. L. R B. v. Bradford Dyeing Ass'n, 310 U. S. 318. The Supreme Court further stated in Medo Photo Supply Corp. v. N. L. R B., supra, under similar circumstances, that a refusal to bargain caused by an employer's own unfair labor practices "was but an aggravation of its unfair labor practice in destroying the majority's support of the union." Section 8 (a) (5) of the Act makes it an unfair labor practice for an employer to refuse to bargain with the representative designated by a majority of his em- ployees within an appropriate bargaining unit. It does not say that the employer's obligation to bargain is conditioned upon a Board certification nor indeed upon sub- mission by a labor organization of any proof of its representative status. The Board has recognized the equitable principle that an employer who entertains a genuine doubt as to a union's majority status should be entitled to have the doubt resolved before being required to bargain and has absolved an employer of his obligation to bargain if the refusal is motivated by a good-faith doubt as to majority status. But since this exception is grounded upon equitable principles, the Board has not permitted an employer to avoid this obligation to bargain with a majority representative where the employer engages in unfair labor practices which tend to dissipate that majority status or prevent a free choice in a subsequent election. It IDAHO EGG PRODUCERS 109 would seem axiomatic that an employer may not by his own misconduct destroy a union's majority and then claim to be relieved of his duty to bargain with it on the ground that the Union is no longer a majority representative. Accordingly I find, on this record, that Respondent, after receiving the Union's request for a meeting on September 24, 1953, by engaging in unfair labor practices on that date as well as on September 26, as well as by unilaterally granting its employees Saturdays off, as heretofore found, has refused to bargain with the Union within the meaning of Section 8 (a) (5) of the Act. See Medo Photo Supply Corp. v. N. L. R. B., supra; Motorola, Inc. v. N. L. R. B., 199 F. 2d 82 (C. A. 9), cert. denied 344 U. S. 913; N. L. R. B. v. W. T. Grant Co., 199 F. 2d 711 (C. A. 9), cert. denied 344 U. S. 928, N. L. R. B. v. Howell Chevrolet Company, 204 F. 2d 79 (C. A. 9), affd. 346 U. S. 482; Service Parts Company, 101 NLRB 1172, enfd. 209 F. 2d 905 (C. A. 9); and Williams Lumber Company, 93 NLRB 1672, enfd. 195 F. 2d 669 (C. A. 4), cert. denied 344 U. S. 834. I find that by said refusal to bargain Respondent has further interfered with, restrained, and coerced its employees within the meaning of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connec- tion with its business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and ,tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. Having found that Respondent has unlawfully refused to bargain with the Union as the representative of its em- ployees in an appropriate unit, it will be recommended that Respondent , upon re- quest, bargain with the Union and, if an understanding is reached , embody such understanding in a written and signed agreement. Because of Respondent 's demonstration of its willingness to resort to unlawful methods to counteract an attempt by its employees to achieve self-organization through a labor organization of their own choosing, the inference is warranted that the commission of other unfair labor practices may be anticipated . It will, there- fore, be recommended that Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees at the Pocatello plant in the exercise of the rights guaranteed by the Act Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 983, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. All employees of Respondent's plant at Pocatello, Idaho, including truckdrivers, but excluding office clericals, guards, professional employees, and supervisors, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 983, AFL, was on September 24, 1953, and at all times thereafter has been and now is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on September 24, 1953, and at all times thereafter, to bargain col- lectively with the Union as the exclusive representative of the employees in the afore- said appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.]