Snow & Sons

SNOW & SONS 709 have earned from March 6, 1961 , the date of the discrimination , until a date 5 days after the Respondent notified the above Company and Hunt by telegram that it had no objection to the future employment of Hunt ,14 less Hunt's net earnings during said period. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: - CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 The Respondent Union is a labor organization within the meaning of Section 2(5) of theAct. 3. By attempting to cause and causing Dixie Glass Co., Inc, of Houston , Texas, to discriminate against Fred Hunt in regard to the hire and tenure of his employ- ment, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. 4. By restraining and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) 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. [Recommendations omitted from publication.] 14 As hereinbefore noted , the Respondent's telegram notifying the Company that it had no objection to the continued employment of Hunt ( with a copy to Hunt) is undated The date of receipt of the telegram by the Company and Hunt , tolling as it does the amount of backpay owing Hunt, shall be determined during the compliance stage of this proceeding Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons and Fruit and Vegetable Packers and Warehousemen Union Local 760, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases Nos. 19-CA-2004 and 19-CA-2052. November 27, 1961 DECISION AND ORDER On January 24,1961, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaints. Thereafter, the Charging Party and the General Counsel filed exceptions and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in these proceedings, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, only to the extent consistent with our decision herein. In connection with the 8(a) (5) issue , it appears that on June 6 and 7, 1960, the Union obtained signed applications for membership from 31 of approximately 52 employees in the unit found appropriate herein. 134 NLRB No. 57. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, two employees testified that the union representatives in - duced them to sign cards on June 7 by statements to the effect that one purpose of the cards was to obtain an election. Reasoning that the testimony of these two witnesses invalidated the two cards as evidence of union majority and "tainted with doubt" the process by which the remaining cards were signed, the Trial Examiner found that the General Counsel had failed to prove an essential element of an 8 (a) (5) violation by failing to prove that the Union represented a majority of Respondent's employees. We do not agree. Assuming that the two cards were tainted, there is no evidence that any other employee was induced to sign a card by representations that it was to obtain an election. Accordingly, as eliminating the two questionable cards does not destroy the Union's majority, we find that the Union represented a majority of the Respondent's employees on and after June 7, 1960. The Trial Examiner found that, in any event, even assuming a ma- jority, the Respondent did not violate Section 8 (a) (5) of the Act as it acted in good faith in insisting upon a Board-conducted election. Relying primarily upon Joy Silk Mills,2 the Trial Examiner reasoned that the Respondent was entitled to insist upon a Board-conducted election where it did not do so for the purpose of gaining time to dissi- pate the Union's majority status. We do not agree that Joy Silk Mills is controlling in the circumstances present here. When initially faced with a demand for recognition, the Respondent refused to recognize the Union on the ground that it doubted the Union's majority status. Later in the same day, however, the Respondent through one of its partners agreed to a check of the signature cards presented by the Union which check indicated that a majority of Respondent's em- ployees had applied for union membership. The Respondent never- theless continued in its refusal to recognize the Union and bargain with it and insisted on a Board election although it did not question the accuracy or the propriety of the card check, asserting, in that con- nection, that it never considered the card check binding on it. As to the latter, we see no warrant for invalidating the card check and therefore find that Respondent had no reasonable doubt as to the Union's majority status. That this is so, is further apparent from Respondent's position that it wanted an election because the employees might change their minds. The Board has held' that the right of an employer to insist upon a Board-directed election is not absolute.3 Where, as here, the Employer entertains no reasonable doubt either with respect to the appropriateness of the proposed unit or the Union's representative status, and seeks a Board-directed election without a 3 West Coast Luggage Co ., 105 NLRB 414, 41'8. a Joy Silk 3li118, Inc, 85 NLRB 1263; enfd 185 F 2d 732, cert. denied 341 U.S 914 s See United Butchers Abattoir, Inc., 123 NLRB 946, 957 ; Mine Workers v. Arkansas Flooring Co., 351 US 62 SNOW & SONS 711 valid ground therefor, he has failed to fulfill the bargaining require- ments under the Act. Accordingly, by refusing to bargain with the Union after its majority status in an appropriate unit' had been established, the Respondent violated, Section 8(a) (5) and (1) of the Act.' Upon Respondent's refusal to bargain, certain of its employees walked out in protest on June 7, 1960, and remained on strike until August 15, 1960, at which time 11 strikers applied for reinstatement. Nine were denied reinstatement and two refused reinstatement be- cause of Respondent's failure to reinstate the nine. The Trial Ex- aminer, having found that no unfair labor practices were committed by the Respondent, concluded that there was no unfair labor practice strike carrying with it the unconditional right to reinstatement. As we have found that Respondent unlawfully refused to bargain and as the strike was bottomed entirely upon this refusal, it is clear that Respondent unlawfully refused to rehire the nine strikers upon their unconditional offer to return to work and is obligated to rehire the two other strikers upon application. Moreover, even if the strike be viewed as economic, we find that Respondent violated Section 8(a) (3) in refusing to hire the mentioned nine strikers as Respondent had jobs available for them in corn, such refusal being because of their union adherence. Respondent defended its refusal to hire them in corn on the grounds that they lacked necessary qualifications and experience and that, since production was at full volume when they requested hire, there was no time to train them. The evidence, however, does not bear out Respondent's contentions in this matter. Thus, Mrs. Fred Snow testified, in effect, that a satisfactory employee in asparagus would perform adequately in corn. Also, eight employees who, like the strikers, had no prior experience in corn packing, were hired by the Respondent after the strikers were denied jobs in corn. With regard to the lack of time for training new employees, we note that 17 employees without corn pack experience were hired after the season was well under way. In addition to offering no credible reason for refusing to hire the strikers, Respondent further violated its own employment practice which had been to give preference in employment in corn to those applicants who had performed satisfactorily in aspara- gus.6 Accordingly, we find that Respondents' asserted reasons for not hiring them in corn were mere pretexts to cloak its discriminatory motivation in refusing to hire them. 4 The appropriateness of the unit sought was admitted by Respondent's answer 5 Member Rodgers would affirm the Trial Examiner's finding that the Respondent did not violate Section 8(a) (5) because there is no evidence that the Respondent was moti- vated by bad'faith in requesting a Board-conducted election before recognizing the Union as the representative of its employees in the asparagus packing operation 6 We find that the strikers' were satisfactory workers in asparagus, as Respondent offered them jobs in-asparagus during the next season without criticism, of their work. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. As we have found that Respondent has unlawfully refused to bar- gain, we shall order that Respondent, upon request, bargain collec- tively with the Union and, if an understanding is reached, that such understanding be embodied in a signed agreement. As we have found that Respondent unlawfully refused to reinstate its striking employees upon application, we shall order it to offer to all the strikers,? who have not been reinstated, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if neces- sary, any replacements in order to provide work for the strikers. We shall also order it to make whole strikers, including those who may have subsequently been reinstated, for any loss of earnings they may have suffered by reason of the discrimination against them, by pay- ment to each of a sum of money equal to that which each normally would have earned as wages during the period (a) from their uncondi- tional request for reinstatement to the date of the Intermediate Report herein," and (b) from the date of this Decision and Order to the date of Respondent's offer of reinstatement less the net earnings of each, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolrworth Company, 90 NLRB 289. Upon the basis of the foregoing, and upon the entire record in this case, the National Labor Relations Board hereby makes the following additional : 7 With regard to Corrine Morrow and Alice Rowland , who were offered reinstatement but refused in protest to Respondent 's failure to reinstate the remaining strikers , we shall order Respondent to reinstate them upon application We do not consider Respondent's offer to Morrow and Rowland as constituting a valid, unqualified tender of reinstatement under the circumstances Kitty Clover, Inc, 103 NLRB 1665 , 1667, enfd 208 F. 2d 212 (C.A. 8) ; Draper Corporation, 52 NLRB 1477, 1478-1480 , reversed on other grounds 145 F. 2d 199 ( C A. 4) ; Poultrymen'8 Service Corporation, 41 NLRB 444 , 462, affd. 138 P. 2d 204 (CA 3) , The Good Coal Company, 12 NLRB 136 , 149, enfd. 110 F 2d 501 (CA. 6), cert denied 310 U.S 630 , Rapid Roller Co, 33 NLRB 557, enfd . 126 P. 2d 452 (C A. 7). However, as it appears that the General Counsel explicitly stated at the hearing that he was not seeking any relief for Morrow and Rowland except as unfair labor practice strikers , we shall order only that , in the event of Respondent's refusal if any, to reinstate them upon request, the Respondent make them whole by payment to each of them a sum of money equal to that which she normally would have earned as wages during the period from 5 days after the date on which she applies for reinstate- ment, to the date of the Respondent 's offer of reinstatement, such loss to be computed in the manner set forth in F W Woolworth Company, 90 NLRB 289 Members Rodgers and Fanning are of the opinion, that as the Board is accepting the General Counsel's contention that Morrow and Rowland are strikers, it is unnecessary to discuss the offers of employment made by Respondent , and they do not subscribe to the citation of the above cases in connection with this dicta. 8 When, as here, the Board , contrary to the Trial Examiner, orders reinstatement of employees, backpay is normally abated from the date of the Intermediate Report to the date of the Board's Decision and Order The Jackson Pre8s, Inc , 96 NLRB 897 SNOW & SONS CONCLUSIONS OF LAW 713 4. All production and maintenance employees employed in the proc- essing plant located at Outlook, Washington, and lots and sheds ad- jacent thereto, excluding office clerical employees, fieldmen, guards, professional employees, floormen and floorladies, and all other super- visors as defined in the Act, constitute a unit appropriate for the pur- pose of collective bargaining within the meaning of Section 9 (b) of the Act. 5. At all times since June 7, 1960, the above labor organization has been, and now is, the exclusive representative of all the employees in the above appropriate unit, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing to recognize and bargain with the Union on and after June 7, 1960, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. 7. The strike which commenced on June 7, 1960, was caused and prolonged by Respondent's unfair labor practices and hence was an unfair labor practice strike. 8. By refusing immediate reinstatement to the unfair labor practice strikers, upon their unconditional request, Respondent has discrimi- nated in regard to their hire and tenure of employment, thereby dis- couraging membership in the above labor organization, and has thereby engaged in and is engaging in unfair labor practices within the meaning of 8 (a) (1) and (3) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Fruit and Vegetable Packers and Warehousemen Union Local 760, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by refusing immediate reinstatement to unfair labor practice strikers upon their uncondi- tional request or by discriminating against its employees in any other manner in respect to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Sec- 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8 (a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. (b) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of employment with Fruit and Vegetable Packers and Warehousemen Union Local 760, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all its employees in the following appropriate unit : All production and maintenance employees employed in the proc- essing plant located at Outlook, Washington, and lots and sheds ad- jacent thereto, excluding office clerical employees, fieldmen, guards, professional employees, floormen and floorladies, and all other super- visors as defined in the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of the employees in the above-described unit. (b) Offer to Gloria McDaneld, Helen Ford Wood, Ruth Ford Evans, Agnes Bradford, Laura Northrup, Thomas Maskell, Addie England, Marilyn Wilson, and Mary Byers immediate and full rein- statement to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered because of the discrimination against them in the manner set forth in the sec- tion hereof entitled "The Remedy." (c) Upon request, reinstate Corrine Morrow and Alice Rowland to their former or substantially equivalent positions and make each of them whole for any loss of pay suffered by them as a. result of its failure to reinstate them within 5 days after their unconditional application for reinstatement. (d) Preserve and, upon request, make available to the Board or its agents, for examination.and copying, all payroll records, social security payment records, timecards, personnel records and reports, SNOW & SONS 715 and all other records necessary and appropriate to facilitate the check- ing of the amount of backpay due and the rights of employment under the terms of this Decision and Order. (e) Post at its plant in Outlook, Washington, copies of the notice attached hereto marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after having been duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of at least 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 9In 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 you that : WE WILL NOT discourage membership in Fruit and Vegetable Packers and Warehousemen Union Local 760, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organiza- tion, by refusing to reinstate immediately unfair labor practice strikers upon their unconditional request or discriminating in any other manner in respect to their hire or tenure of employ- ment, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to join or assist the above-named or other labor organizations, 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 and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8,(a) (3) of the Act, as 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, upon request, bargain collectively with the above- named Union for the following appropriate unit with respect to rates of pay, wages, hours of work, and other conditions of em- ployment. The appropriate bargaining unit is: All production and maintenance employees employed in Re- spondent's Outlook, Washington , processing plant, and lots and sheds adjacent thereto, excluding office clerical em- ployees, fieldmen, floormen, floorladies, guards, professional employees, and supervisors as defined in the Act. WE WILL offer to Gloria McDaneld, Helen Ford Wood, Ruth Ford Evans, Agnes Bradford, Laura Northrup , Thomas Maskell, Addie England, Marilyn Wilson, and Mary Byers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them. AVE WILL, upon request , reinstate Corrine Morrow and Alice Rowland to their former or substantially equivalent positions, without prejudice to their seniority and other rights and priv- ileges, and we will make each employee Whole for any loss of pay suffered by her as a result of our failure to reinstate her within 5 days after her application. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above -named labor organization, or any other labor organization , except to the extent that this right may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 ( a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. FRED SNOW, HAROLD SNOW AND TOM SNOW D/B/A SNOW & SONS, 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 matter was tried in Yakima , Washington , on October 4 and 5, 1960. It stemmed from charges filed by Fruit and Vegetable Packers and Warehousemen Union Local 760, affiliated with the International Brotherhood of Teamsters , Chauf- SNOW & SONS 717 feurs, Warehousemen and Helpers of America , herein called the Union . The con- solidated complaint issued by the General Counsel alleged that Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, herein called the Respondent, violated Section 8 (a) (5) and ( 1) of the National Labor Relations Act, as amended, herein called the Act, by refusing to bargain with the Union commencing on or about June 7, 1960, and violated Section 8 (a)(3) and 8 (a)(1) of the Act by refusing to reinstate approximately nine employees who had gone on strike either on June 7 or 8, 1960. Upon the entire record , my observation of the witnesses, and briefs submitted by Respondent and the Union, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY As alleged in the complaint and admitted in the answer, Respondent is a partner- ship, located in Outlook, Washington , engaged in the business of grading , precooling, packing, and selling sweet corn and asparagus to processors and retail outlets. During the 12 months preceding June 1960, Respondent sold goods valued in ex- cess of $50,000 to enterprises located outside the State of Washington. Further, Respondent, during the same period , sold goods valued in excess of $50,000 to enterprises located in the State of Washington which are themselves directly engaged in interstate commerce within the meaning of the Act. The Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED As alleged in the complaint and admitted in the answer , the Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent's operations are seasonal and fluctuate in volume and duration de- pending on availability of crops and marketing conditions. In general , however, the asparagus pack commences about the middle of April and runs until approximately the end of June . The corn pack starts approximately the beginning of July and runs until the latter part of August. The employees usually are local inhabitants and employment preference is given to employees who have previously been satisfactory workers. Employment preference is also given to the employees who have worked in the asparagus pack and who desire to work in the corn pack during the same year. It was the practice of Respondent at the end of the asparagus season to have the employees sign a book if they wished to work in the corn pack. It was also the practice of Respondent to hire extra employees at the beginning of the corn and the asparagus pack while the workload was still light, in order that the new employees could be given instructions in their work . This was necessary because the employees had to have some training and experience since their work was interdependent, in that a slowdown at one point in the assembly line would have the effect of slowing down the whole operation. B. The events On the evening of June 6 , 1960, the Union obtained signatures from approximately 12 employees of Respondent , authorizing the Union as collective -bargaining repre- sentative. In the early morning of June 7, 1960, as the employees were going to work in the vicinity of the Respondent's premises, 19 additional authorization cards were signed, making a total of 31 employees who had signed authorization cards. The payroll records of Respondent indicate that as of June 7 it had approximately 52 employees. After obtaining the signatures on the morning of June 7, representatives of the Union , Ed Pomerinke , Charles Gorham , and Herschell Andrews, about 9 a.m., started a discussion with Fred Snow, Harold Snow, and Tom Snow, partners and owners of Respondent enterprise, relative to entering into negotiations looking towards the ex- ecution of a collective-bargaining contract. Fred Snow, who was the father of Harold and Tom Snow , requested that there be a National Labor Relations Board election with a "normal" posting of 30 days, and Pomerinke replied that they were seeking an immediate election and wanted it to take place within 72 hours. It is undisputed on first arriving at Respondent 's office the Snows were informed by a union representative that there was labor unrest. Respondent expressed doubt 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union actually represented the number of employees that it claimed to rep- resent, or that there was any substantial amount of labor unrest. There was an impasse at this morning session of June 7, with the Union wanting negotiations to start immediately, and the position of the Respondent remained in- sistent on first having a secret election conducted by the National Labor Relations Board. Although requested to do so, the union representatives at no time showed a repre- sentative of Respondent the signed cards or a blank one which would indicate the nature of the cards signed by the employees. It is undisputed that the morning of June 7 was the first occasion that Respondent had knowledge of any type of union organization among its employees. The morning meeting apparently was occupied mainly by the Union's insistence on immediate action and Respondent's remaining firm in its desire to have a National Labor Relations Board election. During the course of the morning Fred Snow with- drew to another part of the office to make his usual telephone calls. Pomerinke about this time informed the two Snow sons that the crew wanted action and they would be pulled off the job by noon if something were not done. Following this Harold Snow agreed to have an impartial person determine the authenticity of the signatures. It is undisputed that Harold Snow agreed to this in order to ascertain if the union repre- sentatives were representing any substantial number of employees. The signature check conducted by a minister reflected that 31 employees out of a list of 49 sub- mitted to him had signed cards in the possession of the Union.' After Respondent received the information that 31 people had signed cards in the Union's possession, another meeting was held with the same parties that afternoon, from about 1 until 3 p.m. A substantial amount of time was devoted to the subject of the mechanics of an election. The testimony of the witnesses is in agreement that the union representatives thought that an election was unnecessary but were willing at the afternoon session to have an election conducted that night and were opposed to the proposition that the National Labor Relations Board should conduct the elec- tion. The union representatives rejected Respondent's proposal that the National Labor Relations Board office in Seattle should be called to ascertain how quickly an election could be held? This afternoon meeting adjourned without agreement at approximately 3 p.m., and 12 employees walked off the job at that time, having been advised by the union representatives that the Respondent was reluctant to enter into negotiations. That evening at the request of James Farrington, secretary-treasurer of the Union, a meeting between Respondent and the Union convened at approximately 10 p.m. Farrington and an attorney for Respondent named Garrison were the principal new parties in these negotiations. Farrington announced that the offer of the afternoon to have a union-conducted election was withdrawn and that the meeting was for the purpose of entering into negotiations. In response to Farrington's question as to why Respondent had agreed to a card check and now insisted on a National Labor Rela- tions Board election, Harold Snow indicated that he wanted to find out if the Union was talking for more than one or two people, and also to ascertain the extent of labor unrest. Harold Snow's testimony is credited along with that of their attorney, Garrison, that after Farrington had indicated to them that their card check precluded them from having an election that an expression was made by one of the Snows to the effect that they had been "trapped." On the morning of June 8, a picket line was established by the Union and in addition to the 12 employees who had left their jobs on June 7, 7 more refused to cross the picket line to return to work. On August 14 Farrington advised Respond- ent by letter that the strike had been terminated because of the Board's decision to ' General Counsel's Exhibit No 4, which is a letter from Reverend Pederson who made the check, recites that out of the list of 49 employees 18 have abstained from voting and 31 have voted in favor In the course of his testimony he made it clear that this wording was not based on any information supplied to him either by the Union or Respondent and that the phrasing relative to "voting" was solely his own idea. 3 Business Representative Gorham said the earliest an election could be held was 21 days. This credited and undenied testimony of Harold Snow, relative to the discussion concern- ing elections, is convincing in demonstrating that Respondent was not insisting on a 30-day posting period as a prerequisite for an election. It is found that Farrington and Pomerinke were not correct in their recollection that Respondent insisted on a 30-day posting period, and, consequently, it is unnecessary to consider what significance this would have in connection with Respondent's alleged failure to bargain in good faith It is found that the 30-day posting period was mentioned by Respondent initially but was not made a condition of its agreeing to an election SNOW & SONS 719 issue a complaint against Respondent, and indicated that the strikers were entitled to reinstatement along with the hope that they would be provided with immediate employment. On August 17, 1960, Respondent, through its attorneys, replied to Farrington, indi- cating that Respondent was prepared to bargain in good faith with the Union after a National Labor Relations Board election and that the employees engaged in the asparagus operation at the time of the strike would be given employment the fol- lowing year. In addition, Farrington was advised that the strikers who had previously had experience in the corn operation would be employed immediately. Offers of employment were sent to two of the employees who had been previously employed in the corn packing operation. These offers of employment were not accepted. These two employees on the morning of August 15, 1960, in company with Business Representative Pomerinke and several others of the employees who had left their work during the asparagus pack, left mimeographed slips at Respondent's premises, indicating that they were terminating their strike and applying for immediate rein- statement. These employees were advised by letter that they would be employed the following year during the asparagus pack, but, due to their lack of experience in the corn pack, they would not be employed during the current season. C. The issues 1. Was the majority status of the Union established? 2. Did Respondent in good faith doubt the majority of the Union and insist on a National Labor Relations Board election? 3. Are the striking employees entitled to reinstatement? 1. The majority status of the Union The answer of Respondent denies that the Union represented a majority of its employees. The record contains evidence that on June 6, 1960 , 12 employees at the home of Business Representative Pomerinke signed authorization cards and the fol- lowing morning an additional 19 cards were signed by employees as they were going to work. There were 52 employees on the active payroll as of June 7, 1960. The 31 authorization cards constitute an indication of a majority. However there is evidence that casts doubt on this indication . Kathleen Petersen, a witness called by the General Counsel , testified as follows with respect to the circumstances of her signing the union card on the morning of June 7, 1960: Q. (By Mr. HALVERSON.) And iI ask you, Kathleen, if you will simply tell the Court here the circumstances under which the card was signed, when and where and what was said, not your subjective state of mind , but actually what happened. Do I make myself clear on that? A. Yes. All right. First, two boys came to my car and asked me if I was going to sign one. They had been to the house before , the last evening. I told them that I didn't understand it and I'd rather not, and then they brought one of the union men over to explain it to me and he told me that it meant that I was signing the card to show whether or not the union would have a backing if they held an election or when they held the election. And he also told me that we would get a raise of so much and that we would get better work- ing conditions and things like that. Q. Was anything said to you about the fact that you would have the right to vote in the election and you could make up your mind at that time? A. Yes, and I was told more than once I would have a right to make up my own mind which way to vote at the election and each time I was told that someone was telling me that I should vote for the union and then they 'd say, "It's all right for you to make up your own mind." But if I asked any questions about it they'd get mad and tell me why I should vote for the union when they had an election. Ruth Clift, a witness for Respondent, gave the following testimony in connection with her signing an authorization card: Q. (By Mr. HALVERSON.) Will you tell the Court not what you thought but what you said and what was done at this particular time when you were pre- sented this card for signature? A. It was about 20 minutes to 8 when I got to the parking lot and Tom Maskell came over to the car and handed me a card and said, "Sign it." I read the card 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and it said it was for membership in the union and I didn't want to join it but Mr. Pomerinke came over to the car and said it was just more or less of a formal- ity and we were to have an election to find out whether we wanted the union to come into the shed. Q. Was there some statement made that this was necessary in order that there be an election held at Snow and Sons? A. Yes. Q. Who made that statement to you, do you recall? A. Well, I am not sure exactly which one of the gentlemen it was, but it was one of the union men, and they didn't stay at my car but just a few minutes because other cars were coming into the parking lot, and I and one of the other girls was with me, and they talked about it and it was almost time to go into work, and they wanted to rush it. What I mean is, they wanted us to sign in a hurry because we had to go in and go to work, and I signed my name and address on the card and I didn't put anything else down, and gave them the card and went on in to work in the morning. The undenied and credited testimony of both these witnesses establish that at least two employees were induced to sign cards to aid the Union in securing an election, and were not authorizing the Union as their bargaining agent. The cases cited by the General Counsel in support of the proposition that an authorization card cannot be repudiated are distinguishable,3 as they present a situation where the employer had been engaged in extensive unfair labor practices with a potential of pressure on the employees to repudiate their authorizations and under all the circumstances present in those cases sound reasons were indicated to apply a rule that would pre- vent an employer-from benefiting by the possibly induced defection of an employee in denying his union authorization. I cannot agree that any circumstances here present dictate that the authorization cards of Kathleen Petersen and Ruth Clift should be included in determining the union majority. The absence of even a scintilla of evidence that Respondent was attempting to subvert union organization makes it unnecessary to accept the authorization cards as proof of a majority of employees who did not intend by signing a card to authorize the Union as its bargaining agent. The testimony of these two witnesses who were included in the 19 who signed cards on the morning of June 7, 1960, induces in this record a serious doubt as to the circumstances as to the execution of the balance of the cards. It is not merely a question of not counting the cards of these two employees in determining whether the Union had a majority status, but the question remains as to how many of the other employees who did not testify but who signed cards at the same time were induced to sign the cards in order to assist the Union in obtaining an election, and were not signing the cards as an authorization that the Union could use in establishing its majority. Because the process of obtaining the signatures is tainted with doubt which the General Counsel has not dissipated, I find that on this record the Union has not been established as representing a majority of Re- spondent's employees by an adequate measure of proof. 2. Was Respondent acting in good faith in insisting on National Labor Relations Board election? The above finding alone supports a recommendation of dismissal of the entire complaint. Assuming arguendo, however, that the General Counsel has established a majority, the question of good faith in insisting on a Board election is presented. It is correctly conceded by the General Counsel that Respondent was not moti- vated in seeking a National Labor Relations Board election for the purpose of gaining time' to undermine the Union. As far as the record goes Respondent did not seek a delay even for the purpose of exercising its right to express to its em- ployees its own opinion, whatever it may have been, with respect to the advantages or disadvantages of union organization. To the contrary, it is found that the record establishes only that Respondent was interested in having its employees provided with an opportunity to participate in a properly supervised secret election to determine whether or not they sought representation by the Union. Harold Snow's uncontradicted and credited testimony to the effect Respondent had to do, something by noon on June 7 and the subsequent expression that Re- spondent thought they felt trapped when advised by Farrington that the card check 3 Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645 ; Pinkerton Folding Boa Company, 121 NLRB 1308. SNOW & SONS 721 was binding on them, persuades the Trial Examiner that the Respondent was not withdrawing from an agreement for establishing a majority representative. The General Counsel stated on the record that he did not contend that such an agree- ment was made. In summary, I am persuaded that the signature check had a dif- ferent significance to the union representatives than it did to the Respondent, and that Respondent consented to it because it was faced with an immediate deadline with a probability of a strike or a picket line and also an understandable curiosity as to the extent of union organization, since June 7 was the first occasion that they had knowledge of such activity. Absent some evidence in the record that the employer's insistence upon an elec- tion was for the purpose of gaining time to dissipate the majority of the Union, it would appear to be the general rule that the employer has a right to insist upon secret expression of its employees in connection with determining their bargaining representative .4 The precipitous nature of the organizational campaign followed by a demand that they should agree to a contract by noon on June 7, or at the most within 72 hours, would reasonably be a time sequence that would cause Respondent doubt as to whether claims of the Union represented the free choice of the employees. It is recognized that a seasonal industry here involved provided the union with special organizational problems. However, the Union's rejection of the Respond- ent's suggestion that an attempt be made to have a National Labor Relations Board election immediately was refused. Also, the Respondent during its negotiations with the Union pointed out that the packing season lasted into August, and there would be an opportunity during the year of 1960 to have the employees vote. The impression from the totality of the conduct of the union representatives sug- gests that after the cards were signed on June 6, an impartial secret election of the employees was unacceptable to the Union. The rule enunciated by the Board in a case cited by the General Counsel seems appropriate in making a resolution here.5 The aim of Respondent to have a secret election is compatible with the purposes of the Act and under all of the circumstances present in this case represents a pro- cedure that the employees of the Respondent were entitled to utilize. The question of the right to reinstatement of various individuals named in the complaint and two additional ones that the General Counsel contended should be included in the order of reinstatement need not be reached, as based on the foregoing it is found that the Respondent has not engaged in unfair labor practices and hence there is no question of an unfair labor practice strike carrying with it a right to reinstatement. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Respondent has not violated Section 8(a) (1), (3), or (5) of the Act. 4 Joy Silk Mills, Inc v. N.L R B , 185 F. 2d 732 (CAD C.). 5 Emma Gilbert, et al, individually and as Co-Partners d/b/a A L. Gilbert Company, 110 NLRB' 2067, 2069 But whether, in any given case, the employer is legitimately or illegitimately moti- vated in asking for an election, whether he sincerely or insincerely expresses doubt as to majority, depends in the final analysis, upon all the facts and circumstances of that case There is no rule which will save the Board from the necessity of a dis- criminating analysis and appraisal of all the relevant evidence before making a good- or bad-faith determination It is all the circumstances of the particular case, including the employer's background, the "character or extent" of the unfair labor practices, and the sequence of events which must be considered before a good- or bad-faith determination can be made At the same page the Board states: . . the Board will not permit a party to insist upon the use of its processes as a device for undermining the declared purposes of the Act It is clear that Respondent was not attempting to utilize an election as a device to defeat its employees' rights under the Act. 630849-62-vol. 131 -47