Iowa Beef Packers, Inc.

IOWA BEEF PACKERS, INC . 615 same time Child was on the premises interfering with production, without per- missions Further, Child was certainly not on the premises on November 9 as a shop steward, policing a contract, nor was he there as an employee ready to work. As he described himself to Brooks, he was just there to do what Gonzales wished and he appeared to have little concern for his or the Upholsterers' duties under the contract but appeared to be determined to let Gonzales' will be done. In addition, I find that Child violated section XV of the contract, either as a representative of the Upholsterers or as an employee who received its benefits, by talking to employees during their worktime on November 9 and 12, in that he was failing to "Cooperate to maintain high standards of . . job performance." Similarly, it is obvious to me that Child, by talking to employees and a supervisor, on November 9 and 12 as found herein, violated section XV of the contract by failing to "Cooperate to keep at a minimum the time devoted by officers, stewards, and members in handling grievances, soliciting union members, ... or engaging in other Union activities on the Employer's property during working hours." There is no substantial evidence that Child effectively could not have engaged in these activities on nonworking time. Further, I find that the manner of Child on November 9 and 12, especially when dealing with Brooks, was arrogant, possibly occasioned by a misunderstanding of what Gonzales expected of him. Further, finding that Brooks on November 9 legitimately and clearly directed Child to desist from engaging in Teamsters and Furniture Workers' union activity on company time, I further find that Child de- liberately and contumaciously ignored Brooks' directions, on November 12, perhaps mistakenly believing that Gonzales rather than Brooks could direct his working time activities even though the particular activities did not involve his duties as shop steward. In sum, I find General Counsel has not established by a preponderance of the credible and substantial evidence that Respondent violated the Act as the com- plaint alleges. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and has been at material times, an employer within the mean- ing of Section 2(2) of the Act and is engaged in commerce within the meaning of the Act. 2. The Upholsterers, the Teamsters, and the Furniture Workers are, and have been at all times material to this proceeding, labor organizations within the mean- ing of Section 2(5) of the Act. 3. The record does not establish that Respondent has engaged in the unfair labor practices, or any of them, alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, it is recommended that the Board enter an order dismissing the complaint. =" It is needless to speculate whether request for permission would have been denied Iowa Beef Packers, Inc. and Frank Laird Iowa Beef Packers, Inc. and District No. 3, United Packinghouse Food and Allied Workers, AFL-CIO. Cases Nos. 18-CA-1500 and 18-CA-1510. September 17, 1963 DECISION AND ORDER On May 14, 1963, Trial Examiner Henry S. Sahm issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- 144 NLRB No. 64. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal as to them. Thereafter, the Charg- ing Party and the General Counsel filed exceptions to the Inter- mediate Report, and the Charging Party filed a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. 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 entire record, including the Intermediate Report, the exceptions, and brief, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent herewith. In numerous instances, in connection with his consideration of the allegations of the complaint that the Respondent violated Section 8 (a) (2) and (3) of the Act, the Trial Examiner relied, not on appli- cable Board precedent, but instead on certain decisions of U.S. Courts of Appeals which expressed views contrary to those of the Board, and which the Board has not accepted. The Trial Examiner's reliance on such court decisions constitutes fundamental error. As the Board has stated 1 sand reiterated : 2 It has been the Board's consistent policy for itself to determine whether to acquiesce in the contrary views of a circuit court of appeals or whether, with due deference to the court's opinion, to adhere to its previous holding until the Supreme Court of the United States has ruled otherwise. But it is not for a Trial Examiner to speculate as to what course the Board should follow where a circuit court has expressed disagreement with its views. On the contrary, it remains the Trial Examiner's duty to apply established Board precedent which the Board or the Supreme Court has not reversed. Only by such recognition of the legal authority of Board precedent, will a uniform and, orderly ad- ministration of a national act, such as the National Labor Rela- tions Act, be achieved. 'Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773. 2 E g, Novak Logging Company, 119 NLRB 1573, 1575-1576. See also Local 1426, International Longshoremen's Association, AFL-CIO (Heide and Company, Inc.), 128 NLRB 198, 205-206 ; Reliance Fuel Oil Corp., 129 NLRB 1166, 1177; North Country Motors, Ltd., 133 NLRB 1479, 1485. IOWA BEEF PACKERS, INC. 617 Accordingly, and with all due deference to the views of the courts of appeals relied on by the Trial Examiner which are contrary to those views expressed herein, we shall consider the issues in this proceeding on the basis of applicable Board precedent. In February 1962, Respondent purchased a packing plant located in Fort Dodge, Iowa, which was formerly operated by the Fort Dodge Packing Company. The United Packinghouse Workers, herein re- ferred to as the International, through its affiliate, Local 607, was the duly designated bargaining representative of the employees at that plant when Fort Dodge Packing Company terminated operations in November 1961. Before Respondent began production operations at this newly acquired facility, the International, in early September 1962, made efforts to organize the employees hired at the new plant. Contemporaneous with this organization drive, some of Respondent's employees took steps to form the Hawkeye Industrial Labor Union, herein referred to as the Independent. Through the months of September and October, both unions competed for employee authori- zation as bargaining agent. With knowledge of the International's prior representative status among the predecessor's employees, Respondent's president, R. D. Anderson, and its supervisors, both before and during the Interna- tional's organizing activities, campaigned to discourage and forestall employee interest in the International. Respondent, on a number of occasions, threatened employees with economic reprisals if they joined or supported the International. Thus, employee Roger Grove, in a discussion in late August 1962 concerning a relative of Grove's who was active in the International, was told by Anderson that "the unions ain't nothing but a bunch of blanks . .. . You remember that .. . you had better watch your step." In early October 1962, employee Fred Williams, having been seen with leaders of the International, was told by Superintendent Thiede that "if we associated with them kind of guys we would be out of a job." Employee Vernon Dornath, who had provided a meeting place for the International, was told by Anderson that "I am not going to fire you, but there's other ways of getting the job done . . . . You'd just better start turning things around and start going the other way with it." And again in October 1962, Superintendent Thiede, after questioning employee Joe Fitz- gerald about soliciting cards for the International, asked Fitzgerald if he didn't "realize that Andy would shut her down, lock that front door" if the International Union got into the plant. In addition, Respondent, during the International's organizing cam- paign, called employee meetings at which Anderson warned the workers that the plant would close down, with its operations trans- 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferred to the Respondent's plant at Denison, if the International organized the Fort Dodge employees . Individual employees were also interrogated concerning their attitude toward, and activities on behalf of, the International . Furthermore, Anderson created the impression that activities sponsored by the International were under surveillance by stating to employees, "I know these things [time and place of meeting] just as fast as you do." In contrast to Respondent's efforts to forestall any organization by the International , and Anderson's own testimony that he made no secret of his opposition to that Union, the record does not contain a scintilla of evidence indicating that Respondent in any way discour- aged employee affiliation with the Independent. Other facts, which were stipulated by the parties, show that on Octo- ber 18, 1962, Respondent received demands for recognition from the International and the Independent. The Independent's demand was supported by signatures of more than 100 of the total complement of 160 or 163 workers, while the demand of the International was not supported by signatures or authorization cards. The International, however, then claimed that it represented a majority of Respondent's employees . On October 23, the International filed a representation petition with the Board, and the Respondent received notification thereof on October 24 or 25. On October 26, 3 days after the petition was filed, Respondent recognized the Independent as exclusive bar- gaining agent for its Fort Dodge employees, and on December 17, 1962, Respondent and the Independent executed a labor contract. 1. The Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act by interrogating employees concerning their ac- tivities on behalf of the International, by creating the impression of surveillance of activities sponsored by the International, by threaten- ing a closedown should the International win representation rights, and by threatening individual employees with discharge and other reprisals for affiliating with or supporting the International. With such findings we agree.' 2. We cannot, however, agree with the Trial Examiner's finding that the Respondent did not violate Section 8(a) (2) of the Act by its recognition of, and subsequent dealings with, the Independent. The complaint alleged that the Respondent rendered unlawful assistance and support to the Independent , thereby violating Section 8(a) (2) and (1 ) of the Act by recognizing and engaging in collective bargain- ing with that Union with knowledge of the International 's demand for recognition and the pending representation petition. The Trial Examiner observed that the alleged violation of Section 8(a) (2) in- volved application of the Board's Midwest Piping doctrine 4 Based 3 The Respondent filed no exceptions to the Trial Examiner's 8(a)(1 ) findings 4 Midwest Piping & Supply Co, Inc., 63 NLRB 1060. IOWA BEEF PACKERS, INC. 619 on his finding that the General Counsel had failed to show that a real question concerning representation existed at the time the Respondent extended recognition to the Independent, the Trial Examiner con- cluded that the Respondent had not recognized the Independent in violation of the Midwest Piping doctrine. In so doing, the Trial Examiner relied not only on the fact that the Respondent recognized the Independent only after it had authenticated signatures showing that said union represented a substantial majority of the employees concerned, but also upon the asserted failure of the General Counsel to prove "in an appropriate manner" that, at the time it filed its petition, the International represented "a substantial number of em- ployees," thereby establishing that said petition raised a real question concerning representation.' We cannot accept the Trial Examiner's implied holding that the Independent, by numerical superiority in signed authorizations, pre- cluded any determination that a real question concerning representa- tion existed. A cardinal element of the Midwest Piping doctrine is that an employer cannot arrogate unto himself authority to deter- mine which of two or more contending unions is entitled to recogni- tion as exclusive bargaining agent. In this connection, the Board, on numerous occasions, has stated that : ... membership cards obtained during the heat of rival organiz- ing campaigns ... do not necessarily reflect the ultimate choice of a bargaining representative; indeed, the extent of dual mem- bership among the employees during periods of intense organiz- ing activity is an important unknown factor affecting a. deter- mination of majority 6 status, which can best be resolved by a secret ballot among the employees. Thus, contrary to the reasoning of the Trial Examiner, the numerical percentage of employees represented by one of the contending unions does not foreclose the existence of a real dispute as to representation so as to privilege a premature recognition 7 5 At the hearing, counsel for the General Counsel stated, on personal knowledge, for the record that, at the time of its filing, the International's petition was supported by 50 authorization cards which, according to his personal investigation, constituted an ade- quate and substantial showing of interest. The General Counsel refused to introduce these cards in evidence, asserting that a petitioner's showing of interest is an administrative matter for determination by the Board and is not a litigable issue in the present case. There is no contention that any other question, such as the appropriateness of the unit, was raised concerning the International's claim to representation 'Novak Logging Company, 119 NLRB 1573, 1575, footnote 7. It is noteworthy that the record in the instant case shows that certain of Respondent's employees, though mem- bers of the Independent, had engaged in activities supporting the International and have indicated their primary allegiance to that union. 7 Duralite Co., Inc., 132 NLRB 425, 427, footnote 4; Shea Chemical Corporation, 121 NLRB 1027; Novak Logging Company, supra, footnote 6. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, in view of the facts hereinabove set forth, particularly the extensive unlawful conduct engaged in by the Respondent, we cannot find that the Respondent had any reasonable basis for believing that the signatures secured by the Independent, on which the Respond- ent's recognition of that Union was based, reflected the free and un- trammeled choice of its employees.' As the Trial Examiner himself found, the Respondent, by its persistent threats and warnings, inter- fered with, coerced, and restrained employees from supporting the International in violation of their rights guaranteed by the Act. It is difficult, therefore, to agree with the Trial Examiner that the Re- spondent maintained an attitude of strict neutrality throughout and that there was an absence of mala fides in its recognition of the In- dependent. In such circumstances, it being clear that the Respondent was aware of the International's interest among the employees and its activity to organize the employees, and that the Respondent sus- pected that many of its employees were actively supporting the Inter- national, it cannot be said that the Respondent was justified in taking upon itself to resolve the claims of the rival unions, particularly where the International supported its demand for recognition by filing a petition. In the circumstances of this case, including the Respond- ent's unlawful opposition to the International, we are of the opinion that the conflicting demands of the rival unions presented a question concerning representation which was for the Board's, rather than the Respondent's, determination.' We accordingly find that by recog- nizing and executing a collective-bargaining agreement with the In- dependent, in the face of an existing question concerning representa- tion, the Respondent granted unlawful assistance and support to the Independent in violation of Section 8(a) (2) and (1) of the Act. 3. We agree with the Trial Examiner's conclusion that the Respond- ent did not violate Section 8(a) (3) and (1) of the Act by failing to provide employment to applicants Frank Laird, John Miner, James Grove, Maurice Nickless, and Eugene Thelen. The General Counsel alleged that these five individuals were discriminatorily denied em- ployment in the new plant because they were officials of Local 607, the representative of the employees at the Fort Dodge Packing Com- 9 See NL.R.B. v. Burke Oldsmobile, Inc, 288 F. 2d 14 (C.A. 2), where the court of appeals , in enforcing the Board 's Order, found that an employer had violated Section 8(a) (2) and ( 1) of the Act by recognizing one of two rival unions , despite evidence of the majority status of that union , where the employer had interfered with the free and untrammeled conditions under which employees were entitled to choose their bargaining agent 9A "question concerning representation" may exist whether or not a petition is actu- ally pending before the Board. See Novak Logging Company , supra, footnote 4, and cases cited therein. See also Brittany Dyeing and Printing Corp , 126 NLRB 785. In the view we take of the case , we find it unnecessary to pass on the Trial Examiner's opinion that the International's showing of interest was subject to litigation in this complaint proceeding. IOWA BEEF PACKERS, INC. 621 pany and an affiliate of the International, but the Trial Examiner found there was no evidence indicating that the Respondent expressed any particular animus against these individuals because of their cur- rent or past union interest or activities. On the contrary, the evi- dence, as credited by the Trial Examiner, showed that Laird had a history of a chronic back condition, Miner was reputed to be a poor worker, and Grove, Nickless, and Thelen had made formal application for employment after all available jobs were filled, with Nickless hav- ing a record as a convicted felon and Thelen having made a poor im- pression at an employment interview. Furthermore, it is not disputed that the Respondent received some 1,500 applications for the 160 jobs that were or would be available upon completion of the Fort Dodge plant, and the record fails to show that any of those selected for em- ployment were less qualified than the five union officials. In the circumstances we cannot say that the Respondent's reason for rejec- tion of each of the five individuals in question was a mere pretext. Accordingly, in our view, the General Counsel has failed to establish by a preponderance of the evidence that Frank Laird, John Miner, James Grove, Maurice Nickless, and Eugene Thelen were denied em- ployment because of their past activities on behalf of the International.lo 4. The Trial Examiner found that the Respondent violated Section 8(a) (4) by refusing to hire James Grove because he filed a charge with the Board. However, because he was of the opinion that Grove deliberately falsified a statement in the charge, he recommended that the usual remedy be withheld. We find, in agreement with the Trial Examiner, that the Respondent violated Section 8 (a) (4) of the Act in its discriminatory refusal to hire Grove because he filed a charge against the Respondent. How- ever, we disagree with his recommendation that remedy for such viola- tion be withheld. In this connection, the record contains no support for the Trial Examiner's finding that Grove deliberately falsified the allegation made in his charge. Indeed, the evidence is to the contrary. Thus, the undisputed evidence shows that the charge was prepared and filed by Frank Laird, another alleged discriminatee, without participation therein by Grove. Grove testified without contradiction that he did not authorize Laird to include the untrue portion of the charge, and the Respondent conceded that Grove immediately repudiated the of- 10 In adopting the Trial Examiner's conclusion that Respondent did not violate Section 8(a) (3), we do not agree with his reasoning that the General Counsel, in making out a violation based upon a discriminatory refusal to hire, must establish that vacancies existed at the time of the alleged discrimination. See Shawnee Industries, The, 140 NLRB 1451, overruling in that regard Climax Spinning Company, 101 NLRB 1193, 1204, on which the Trial Examiner relied. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fending part of the charge when it was brought to his attention by the Respondent's representatives. Grove, at the same time, informed an agent of the General Counsel of the inaccurate portion of the origi- nal charge, which was subsequently deleted by amendment to the original charge. Although the Board has withheld relief when an individual has abused its procedures by deliberate and malicious conduct," such ac- tion has been taken only where the circumstances require forfeiture of remedy to effectuate the purposes of the Act.12 Here the state- ment, which proved to be incorrect, was included in the original charge as the result of a misunderstanding and no evidence of deliber- ate and malicious conduct on Grove's part was presented. In the circumstances, we find that a withholding of remedy in this case will not effectuate the purposes of the Act. ME PMIEDY Having found, contrary to the Trial Examiner, that Respondent has engaged in unfair labor practices in violation of Section 8(a) (2) and (1) of the Act, we shall order Respondent to cease and desist there- from and take affirmative action necessary to effectuate the policies of the Act. We have found that the Respondent recognized the Hawkeye In- dustrial Labor Union and entered into an agreement with it on Decem- ber 17, 1962, all during the pendency of a real question concerning representation of the employees covered thereby. By such conduct, the Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of their right freely to select their own bargain- ing representative, and has accorded unlawful assistance and support to the Hawkeye Industrial Labor Union. In order to dissipate the effect of Respondent's unfair labor practices, we shall order Respond- ent to withdraw and withhold all recognition from Hawkeye Indus- trial Labor Union, and to cease giving effect to the aforementioned agreement, or to any renewal or extension thereof, until such time as Hawkeye Industrial Labor Union shall have been certified by the Board as the exclusive representative of the employees in question. Nothing herein shall, however, be construed to require that the Respondent vary or abandon any existing term or condition of employment. We have also found, in agreement with the Trial Examiner, that the Respondent violated Section 8(a) (4) by refusing to hire James Grove because he had filed charges with the Board. However, con- trary to the Trial Examiner, we have found that the facts and cir- 11 See, for example, O'Donnell's Sea Grill, 55 NLRB 828. 12 See Clayton E. Smith et al., d/b/a Clayton-Willard Sales, 126 NLRB 1325, IOWA BEEF PACKERS, INC. 623 cumstances of the case do not warrant a withholding of remedy. We shall therefore order Respondent to offer James Grove immediate employment in the same or substantially equivalent position to which he would have been employed absent 'the discrimination against him if such employment became available on or after the date of his em- ployment application. In conformance with the Board's newly adopted policy of not tolling backpay,13 we shall further order that the Respondent make James Grove whole for any loss of earnings suffered by him as a result of the discrimination against him by pay- ment of a sum equal to that which he would have earned from the date after the discrimination, when a job for which he was qualified became available, until the date of such offer, less his net earnings during the period. Such backpay shall be computed on a quarterly basis as provided in F. W. Woolworth Co.,14 and interest at the rate of 6 percent per annum shall be added to all backpay provided for in this proceeding to be computed in the manner set forth in Isis Plumb - ing & Heating Co." In view of the nature of Respondent's unfair labor practices, which show complete opposition and disregard of the principle of employee free choice in the selection of a bargaining representative and go to the very heart of the Act, we shall issue a broad cease-and-desist order in this case. ORDER Upon the entire record in this 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, Iowa Beef Pack- ers, Inc., Fort Dodge, Iowa, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees in connection with their union activi- ties in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act ; threatening em- ployees with discharge or other reprisals if they become or remain members of a particular union or give any support thereto; threaten- ing employees that it would close the plant down if they selected the International Union herein to represent them, or creating the impres- sion that it was engaging in surveillance of union activities of its employees. (b) Assisting or contributing support to the Hawkeye Industrial Labor Union, or to any other labor organization, by recognizing such 13A.P.W. Products Co, Inc, 137 NLRB 25, enfd. 316 F. 2d 899 (C.A. 2). 14 90 NLRB 289. 11138 NLRB 716. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization as the exclusive representative of any of its em- ployees for the purpose of collective bargaining at a time when there exists a real question concerning representation. (c) Giving effect to its contract of December 17, 1962, with the Hawkeye Industrial Labor Union or to any renewal, extension, modi- fication, or supplement thereof, unless and until said labor organiza- tion has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (d) Refusing to hire any applicant for employment because he has filed charges under the Act. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist District No. 3, United Packing- house Food, and Allied Workers, AFL-CIO, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer James Grove immediate employment to the same or sub- stantially equivalent position to which he would have been employed had he not been discriminated against, without prejudice to any seniority or other rights and privileges he might have acquired and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of employment under the terms of this Order. (c) Withdraw and withhold all recognition from Hawkeye Indus- trial Labor Union as the exclusive representative of its employees for the purposes of collective bargaining unless and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (d) Post at its plant in Fort Dodge, Iowa, copies of the attached notice marked "Appendix." 16 Copies of this notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being ie 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." IOWA BEEF PACKERS, INC. 625 duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Eighteenth Region, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleged that the Respondent engaged in conduct other than that found to be in violation of the Act herein, be, and it hereby is, dismissed. MEMBER BROWN , dissenting in part : Contrary to the majority, I find that the Respondent discrimina- torily denied employment to Laird, Miner, Grove, Nickless, and Thelen, who were the incumbent officers of the International's affiliate, Local 607, which represented the employees at the old Fort Dodge Packing Company . Respondent was aware of their status in Local 607 both on the basis of background investigations and through its office manager, Ralph Hunsley, who had participated in collective- bargaining negotiations between Local 607 and the Fort Dodge Pack- ing Company . As we have found, Respondent in opposing its em- ployees' right to designate the International as their bargaining agent, committed numerous unfair labor practices, including the interroga- tion of individual employees concerning activities sponsored by the International , creating the impression that activities sponsored by the International were under surveillance , threatening individual em- ployees with discharge and other reprisals for affiliating with or sup- porting the International, threatening to close down the plant if organized by the International , and, as a final stroke, unlawfully recognizing and executing a collective-bargaining agreement with the favored Independent . Clearly, Respondent's calculated effort to de- feat the International embraced the denial of employment to the five applicants whose demonstrated leadership and experience in union af- fairs marked them as potentially the most effective protagonists of that Union. Accordingly, and on the basis of the record as a whole, unlike my colleagues , I find that the reasons assigned by Respondent for not employing the incumbent officers were mere pretext, and that Respondent denied employment to Laird, Miner, Grove, Nickless, and Thelen because of their union background in violation of Section 8 (a) (3) and (1) of the Act. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 threaten our employees that we will close our plant or discharge them if they vote for District No. 3, United Packinghouse Food and Allied Workers, AFL-CIO, or any other labor organization ; question our employees about their union activities in a manner constituting interference , restraint, or coer- cion; or create the impression that we are engaging in surveil- lance of their union activities. WE WILL NOT assist or contribute support to the Hawkeye In- dustrial Labor Organization by recognizing , or contracting with, such labor organization as the exclusive representative of our employees for the purpose of collective bargaining at a time when there exists a real question concerning representation. WE WILL NOT give effect to our December 17 , 1962, agreement with the Hawkeye Industrial Labor Union or to any renewal, extension, modification , or supplement thereof unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of our employees. WE WILL NOT refuse employment to any applicant because he or she has filed charges under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self- organization, to form labor organizations , to join or assist Dis- trict No. 3, United Packinghouse Food and Allied Workers, AFL-CIO, or any other labor organization , to bargain collec- tively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from engaging in any or all such activities. AVE WILL withdraw and withhold all recognition from Hawkeye Industrial Labor Union as the collective-bargaining representa- tive of our employees unless and until said labor organization has been certified as such by the National Labor Relations Board. WE WILL offer James Grove immediate employment to the same or a substantially equivalent position to which he would have been employed had he not been discriminated against, without IOWA BEEF PACKERS, INC. 627 prejudice to any seniority or other rights and privileges he might have acquired, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. We Will not discriminate in regard to hire or tenure of employment against any employee because of membership in, or activity on behalf of, any labor organization. IOWA BEEF PACKERS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 316 Federal Building , 110 South Fourth Street, Minneapolis, Minnesota , Telephone No. 339-0112, Extension 2601, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed by Frank Laird and United Packinghouse, Food and Allied Workers, District No. 3, AFL-CIO, herein called the International Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Eighteenth Region, issued a complaint dated December 17, 1962, against Iowa Beef Packers, Inc., herein called both the Company and the Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (1), (2), (3), and (4) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hearing were served on the parties. Pursuant to notice, a hearing was held in Fort Dodge, Iowa, on January 22, 23, 24, and 25 before Trial Examiner Henry S. Sahm. All parties were represented by counsel and were afforded full opportunity to participate in the hearing, and to introduce relevant evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. All parties, except the Hawkeye Industrial Labor Union, hereinafter referred to as the Independent Union, filed briefs on or before March 18, 1963, which have been fully considered.' I Respondent's motion to strike a portion of James Grove's testimony on which ruling was reserved, is hereby denied. 727-083-64-vol. 144-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from observation of the demeanor of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, an Iowa corporation en- gaged in the meatpacking business. During the 12-month period ending December 1, 1962, Respondent bought cattle and supplies valued at more than $50,000 from suppliers outside Iowa. During the same period Respondent sold meat valued at more than $50,000 to customers outside Iowa. The Respondent admits, and it is found, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Packinghouse, Food and Allied Workers, District No. 3, AFL-CIO, called the International Union herein, and Hawkeye Industrial Labor Union, called the Independent Union herein, are labor organizations within the meaning of Section 2(5) of the Act, admitting to membership employees of the Respondent. IH. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and background The testimony concerning some of the incidents involved in this proceeding, par- ticularly the dates and chronological sequence which eventually led up to the issuance of a complaint, are contradictory, ambiguous, and incomplete as to specific details so that findings of fact and resolutions of credibility made herein result from an attempt to reconcile the evidence in determining what occurred and when. In attempting to supply coherence to those statements and acts which are ambiguous, necessary recourse has been made to the context of other facts and circumstances in an effort to determine what was meant and when various acts occurred. All evidence on disputed points is not described so as not to burden unnecessarily this report. However, all has been considered and where required, resolved. In determining credibility in this proceeding, the following has been considered inter aka: the demeanor and conduct of witnesses, their interest or lack thereof; their ability to know, comprehend, and understand the matters about which they have testified; whether they have been contradicted or otherwise impeached; the inter- relationship of the testimony of witnesses and the written evidence presented; and the consistency and inherent probability and plausibility of the testimony. Then too, human qualities, such as motive, can only be shown circumstantially where the possessor has not previously revealed them directly, but the circumstances may out- weigh in credibility a direct statement testified to at the hearing so that uncontradicted testimony need not necessarily be accepted as true .2 The Fort Dodge Packing Company sold its plant to the Respondent and went out of business on November 18, 1961. Its employees were represented by Local 607 of the United Packinghouse, Food and Allied Workers, AFL-CIO, a local of the Charging Union, which is herein referred to as the International. After Fort Dodge Packing Company plant closed down its operations, Iowa Beef Packers, the Respond- ent Company, began negotiations in November 1961 for the purchase of the Fort Dodge Packing Company plant. Negotiations continued until February of 1962, when the Fort Dodge Packing Company plant was purchased by the Respondent, Iowa Beef Packers. Respondent then began drawing plans to demolish and rebuild the Fort Dodge plant. On or about April 1, 1962, actual construction of the new plant commenced. Respondent did much of the construction work itself and the rest was subcontracted. When the rebuilding of the old plant began in April, there were about 500 applicants who had filed for jobs when construction commenced, of whom Respondent hired approximately 90 with the understanding that those employees who worked on the construction phase of the new plant would have preference in manning the jobs to be filled when the new packinghouse went into production. 2 Wigmore on Evidence, § 25. Cf. N.L.R B. v. Howell Chevrolet Company, 204 F. 2d 79, 86 (CA 9) affd 346 U.S. 482, quoting Judge Learned Hand in Dyer v. McDougal, 201 F. 2d 265, 269 (C.A. 2). IOWA BEEF PACKERS, INC. 629 The old Fort Dodge Packing Company plant employed 48 men in its production unit including the 5 alleged discriminatees in the proceeding. Of these, 29 of the 48 applied for employment with the Respondent of whom 20 were hired, all of whom were either members or former officers of the Fort Dodge Local union .3 Laird was the only one of the five alleged discriminatees who applied for work with the Company before construction of the new plant began. Of the other four alleged discriminatees, two applied for jobs shortly before the plant became opera- tional on October 2, 1962, and the other two when the plant was about 3 months short of completion. Of the approximately 90 men employed by Respondent in the construction phase, 8 to 10 left before construction was completed and the remaining 80 men who worked throughout construction and had job preference were hired by Respondent when the plant went into production on October 2, 1962 Besides the original 500 men who applied for jobs before construction began, more than 1,000 additional applications were filed during construction for the 80 produc- tion jobs which were still available after the 80 construction employees, who had preference, were employed to work in the new plant. The total work force for Re- spondent's packing plant when it went into production on October 2, 1962, was about 160 employees. At approximately the same time that the plant went into production, Respondent's employees took action to form the Hawkeye Industrial Labor Union, "the Independ- ent," and the United Packinghouse, Food and Allied Workers, AFL-CIO, "the Inter- national," also undertook a campaign to organize the production and maintenance employees in Respondent's new packing plant. The formation of the Independent Union began around September 28 and at approximately the same time the Inter- national Union began its organizational campaign by distributing handbills at the plant premises. On October 18, 1962, the Independent Union filed with Respondent Company a petition containing the signatures of over 100 employees out of a total work force of approximately 160 employees. Five days later, on October 23,4 the International Union filed with the Board a representation petition to which were allegedly attached 47 union authorization cards. Nine additinoal cards were alleged to have been filed with the Board of which five or six were signed subsequent to October 23. Respondent was notified of the filing of the International's petition by the Regional Office on October 24 or 25. On October 26, 3 days after the Inter- national filed its representation petition, the Respondent recognized the Independent Union. Recognizing the Independent after the International had filed its representa- tion petition, alleges the complaint, was a violation of Section 8(a)(2) of the Act. In the meantime, charges had been filed on September 21, October 5 and 9, and December 13, and a complaint issued on December 17, 1962, alleging violations of Section 8(a)(1), (2), (3). and (4) of the Act. The 8(a)(3) averments in the complaint allege that Respondent discriminatorily refused to employ Frank Laird on February 26, 1962, John Miner on June 26, Maurice Nickless on July 30, Eugene Thelen on August 29, and James Grove on September 10.5 The General Counsel contends that these five men were not hired because they were all former officers of Local 607 of the charging International Union, which had represented the employees of the old Fort Dodge Packing Company before it went out of business. Respondent contends that of the five alleged discriminatees, four had not applied for jobs with the Company before construction commenced on the new plant and, there- fore, they were not entitled to preference in filling the jobs available when the plant became operational on October 2, 1962. Moreover, Respondent states that Laird (who did apply before construction began) was not hired because he was physically unable to do the work required in a packing plant; Nickless because he had been 3 Eighteen of the old Fort Dodge plant employees worked for Respondent during con- struction of the new plant and were subsequently employed in the plant when it went into production 4 A petition of the International, received by the Regional Office on October 19, was defective in that the International's union representative failed to sign the petition. The Board then ordered another petition to be filed which was done on October 23 and desig- nated Case No 18-RC-5304. 5 The original charge dated September 21, signed by Laird, alleges he was refused em- ployment on June 25, Grove on August 11, and Nickless on July 11, 19G2. The amended charge of October 5 alleges refusals to hire Miner on July 18, Grove and Nickless on July 30, and Thelen on September 29. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD convicted of a serious felony; Miner because he did not meet the high standards established by the Respondent in view of the more than 1,500 applications that were filed for the approximately 80 jobs available (after the 80 preference men were hired), and Grove and Thelen did not apply for employment until shortly before the plant was operational and at a time when the entire production force had already been hired, so that there were no available jobs at the time of the alleged discriminatory refusals to hire Grove and Thelen. In addition, the complaint alleges that Respondent violated Section 8(a)(1) of the Act by threatening it would close the plant and discharge employees if they selected the International Union to represent them; creating the impression among employees that their union activities were under surveillance, interrogating employees, instructing them to sign "Employment Contracts" and offering to give favorable con- sideration to applicants if they would attend meetings of the Independent Union and attempt to persuade those in attendance that present employment conditions are highly satisfactory. Respondent denies all these alleged violations. B. The alleged violations of Section 8(a)(2) The complaint raises no issue as to assistance or to domination of the Independent Union, nor was any evidence introduced by the General Counsel at the hearing to prove this. In fact, the evidence clearly shows the Independent was not illegally assisted by the Respondent in any way and that Respondent maintained an attitude of strict neutrality throughout. The only question at issue is whether the filing of a representation petition by the International Union 3 days prior to the time the Respondent Company recognized the Independent Union is a violation of Section 8(a) (2).s There is no substantial disagreement with respect to the basic facts. The Re- spondent Company's employees were not represented by a union at the time its new Fort Dodge plant became operational on October 2, 1962. Shortly before this, about September 28, 1962, some of Respondent's employees who had all been hired in anticipation of the plant's imminent opening on October 2 conceived the idea of an independent union. On or about October 5 a meeting was called which was at- tended by approximately 60 employees. At this meeting, an organizational com- mittee of five employees were selected to study and report to the employees on the feasibility of organizing an independent union. Following this meeting, the organizational committee employed an attorney, Mark McCormick, who spoke to the employees at the second meeting. At this meeting, which was attended by approximately 73 of Respondent's employees, Attorney McCormick explained to those present the steps which it would be necessary to take in order to form an independent union. After discussion by the members, a vote was taken by secret ballot to determine whether the employees favored an in- dependent union. The results were 55 in favor of an independent, 14 against, and 4 abstentions. Those in attendance then instructed their attorney to draft a con- stitution and bylaws and all necessary documents required for the establishment of an independent union. The third meeting began with a discussion and later a separate vote was taken on the constitution and bylaws which were approved in both cases by a vote of 44 for adoption, 5 against, and 3 abstentions. A vote by secret ballot was then conducted for the election of officers. The officers who were elected were instructed by the membership to prepare a draft collective-bargaining agreement for consideration by the membership. The Independent Union's negotiating committee then drafted a proposed contract which was submitted to the membership for their consideration at the next meeting. Approximately 12 changes were suggested from the floor in the preliminary draft, particularly with respect to various wage brackets. The proposed changes were discussed, voted upon, adopted, and incorporated in the contract to be submitted to the Company. s The section referred to reads as follows: SEC 8. (a) It shall be an unfair labor practice for an employer- ! i R R 4 E k (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support . . . . IOWA BEEF PACKERS, INC. 631 Prior to this last meeting, the Independent Union on October 15, 1962, presented to Respondent a petition containing over 100 signatures of the approximately 160 employees, requesting recognition as exclusive bargaining representative. On Octo- ber 26, Respondent, upon receipt of a written opinion from its attorney that it could do so legally, granted recognition to the Independent. On or about November 21, the Company entered into negotiations with the Independent Union culminating in the execution of a collective-bargaining agreement on or about December 17, 1962. In the meantime, on October 23, 1962, the International Union filed with the Regional Director a representation petition to which were allegedly attached 47 em- ployees' signed union authorization cards. Shortly thereafter, it is alleged that the International filed an additional nine signed union authorization cards with the Re- gional Director, of which five or six cards of the nine were signed subsequent to October 23. Respondent acknowledges that when it accorded recognition to the Independent Union on October 26, it had received a communication 1 or 2 days before on either October 24 or 25 from the Regional Office stating the International had filed a representation petition. Upon receipt of this notice from the Regional Office, Re- spondent's attorney, by letter dated October 25, notified the Regional Director that he had advised the Respondent Company in a written opinion that it could legally accord recognition to the Independent Union By letter dated October 29 and received on October 30 from the Board's Regional Office, Respondent's at- torney was advised that in recognizing the Independent Union Respondent violated the Act. On December 5, 12 days before the General Counsel issued his complaint, the Respondent requested the Regional Director to conduct an election in order to as- certain the wishes of the employees. The request was denied. Discussion and Conclusions The sole issue in this alleged violation of Section 8(a)(2) is the application of the Board's Midwest Piping doctrine.7 This doctrine generally precludes recogni- tion of one union in the face of a rival claim by another union. A reading of the cases appears to show in applying the Midwest doctrine and in line with the adjura- tion of the Act that not only must there be recognition of the workers' right of self-organization but also acceptance of the Act's expressed policy that the wishes of the employees must be accorded great weight in adhering to the statutory pur- pose of giving free play to the employees' desire for self-determination. Any determination adjudicating the claims of two competing unions must avoid a solu- tion which would deprive the employees of the right to be represented by their majority choice. And this is particularly so where, as in the case at bar, there is no evidence of collusion between the employer and the recognized union. It would appear that a realistic approach to the problem of where two rivals claim to represent the employees of a plant which is presently unorganized is to allow the employer to deal exclusively, at his option, with one or another of the rivals, pending the disposition of the question of representation. It can be reason- ably supposed that in such a situation an employer would be likely to lean in the direction of recognizing that union which in his best judgment (absent any ques- tion of male fides) is the choice of a majority of his employees. Furthermore, in Midwest Piping situations, the question arises as to whether the filing of a petition for certification presumptively establishes the existence of a question concerning representation. In resolving this, it would seem that both the filing of a petition for certification and the existence of a real question of repre- sentation at the time of the employer's action are prerequisites to finding a viola- tion under the Midwest Piping doctrine. However, in this proceeding. where the Independent Union was designated by over 100 of the total complement of 163 employees (as of October 23), as against the International's claim that it repre- sented 47 or at the most 56 employees ,8 and the Respondent recognized the In- dependent, but only after checking the authenticity of the over 100 employees signa- tures on the Independent's petition for recognition, it would appear that no unfair labor practice should be found for the reasons hereinafter explicated ' 37t&wc t Piping & SuuppTy Co, lnc, 63 NLRP. 1060 8 Of the alleged 56 cards, approximately 5 or 6 were signed after October 23, the date the International filed its representation petition 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In such a situation as here, it is evident that no real question concerning repre- sentation existed despite the fact that the International's representation petition was still pending because a study of the Board's decisions indicates that the Mid- west Piping doctrine will not be applied where the reality of the existence of a representation question is shown to be nonexistent. If at the time the employer recognizes one of two rival unions, there existed no real question as to whether the contracting union represented a majority of the employees, there is no violation .9 The Board in the Ensher case also noted that the Midwest Piping doctrine, "neces- sary though it is to protect freedom of choice in certain situations, can easily operate in derogation of the practice of continuous collective bargaining, and should, therefore, be strictly construed and sparingly applied." 10 Moreover, a question of representation is not raised by a petition for certification but by the Regional Director's direction of election Otherwise, patently unsupported, as well as frivolous, petitions could be filed thereby frustrating the orderly processes of the Board. Furthermore, in this proceeding the Regional Director took no action at all. A mechanistic application of the Midwest Piping doctrine without taking into consideration the facts of life of industrial relations may be tantamount, in some situations, to exalting form over substance and thereby frustrating the desires of a majority of the employees. It would seem that the Midwest Piping doctrine should not apply in situations obviously calling for other action, particularly where it would defeat the wishes of a majority of the employees to select that union which the majority desires. Then, too, the Board's requirement as to evidence of interest which a petitioning union must submit only requires that the petitioning union submit proof that it has been designated as bargaining agent by at least 30 percent of the affected em- ployees. In this proceeding, however, out of a total of 163 employees (as of October 23), over 100 designated the Independent as their choice, whereas the International claims to represent somewhere between 47 and 56 of the employees." And, most important, the Regional Director had taken no action on the Interna- tional Union's petition.12 Under such a set of facts, where the Independent repre- sents a great majority of the employees, there is no question of the existence or nonexistence of a valid representation question and therefore the Regional Director could have administratively determined that no question of representation existed rather than taking the mechanistic approach of merely determining that where recognition is accorded while a petition is pending, this in itself, ipso facto, con- stitutes a per se violation. The Board, however, has held otherwise where a real question of representation does not exist.13 In the Stewart Warner Corp. v. N L R.B., 194 F. 2d 207 (C.A. 4), which Re- spondent cites, where the favored union had won a representation election but the actual certification was being withheld by the Board only because of the pendency of unfair labor practice charges, the court held there was no violation in view of the fact that independent proof of designation by a majority of the employees had been furnished to the employer by the union. The court said: "Under such circum- stances, there can be no unfair labor practice in recognizing the representative of the majority." On the contrary, held the court, "it was the duty of the Company to deal with the representative when this majority status was established," as at no time did any genuine dispute exist as to the representative status of the union which was recognized by the company.14 In District 50, UMW v. N.L.R B. (Pittsburgh Valve Company), 234 F. 2d 565 (C.A. 4), the court held that the employer's duty to maintain strict neutrality between competing unions does not require that it refuse to recognize a union BEnsher, Alexander & Barsoom, Inc, 74 NLRB 1443 10 See also N L R B v Flotill Products, Inc, 180 F. 2d 441 (C A. 9) ; N L R B v. Standard Steel Springs Company, 180 F. 2d 942 (C A 6). 11 Union dues checkoffs were authorized by 132 employees as of January 22, 1963 12 See Leubren Paper Corporation, 105 NLRB 567 13 Ensher, Alexander & Barsoom, 74 NLRB 1443. In St. Louis Independent Packing Co v N L R B., 291 F 2d 700 (C A. 7), the court held that conclusive proof an actual majority after a question of representation has arisen precludes the continued existence of a real question of representation and permits the employer to recognize the majority union 14 Anderson admitted he knew about the International's petition when he recognized the Independent but he did so knowing that the Independent union represented a vast majority of his employees. IOWA BEEF PACKERS, INC. 633 whose majority status is clearly established. In N.L.R.B. v. Standard Steel Spring Company, 180 F. 2d 942 (C.A. 6), the court held that where an employer who recognized and bargained with a CIO union when representation proceedings in- stituted by an AFL union were pending before the Board, did not violate the Act, where the employer acted in good faith, and the CIO union was the unanimous choice of the employees, and the representation proceeding had been pending for several months. Respondent and General Counsel in their briefs both refer to N.L R.B. v. In- dianapolis Newspapers, Inc., 210 F. 2d 501 (C.A. 7), where it was held that an employer, faced with conflicting claims of an independent union and a CIO union during negotiations with the CIO union, more than 1 year after it was certified, did not violate the Act by recognizing the Independent on the basis of petitions signed by a majority of the employees. In Cleaver-Brooks Mfg. Corporation V. N.L.R.B., 264 F. 2d 637 (C.A. 7), cert. denied 361 U.S. 817, upon which Respondent places great reliance, the court held that the employer did not violate the Act by granting premature recognition to an independent union, it appearing that the employer postponed negotiaions until pressed by the independent union whose membership, as represented by signatures to its charter, showed a rival union to be no genuine contender. In Salant & Salant, Inc., 87 NLRB 215, the Board held, as in Cleaver-Brooks, supra, that an employer did not violate the Act by executing a contract with a union which had demonstrated that it represented about 95 percent of the employees not- withstanding notice by a rival union that it had an interest in the designation of the employees' bargaining representative. To the same effect is Associated Machines, Inc., 114 NLRB 390, where the employer was held not to have violated the Act by recognizing the union on comparison of the signatures on the union's petition with the employer's payroll, even though three other unions were attempting to organize its employees, where the evidence showed that the other unions had not signed up many employees. In City Cab, Inc., 128 NLRB 493, the Board held that an em- ployer did not unlawfully assist a union by executing a new contract with that union at a time when a rival union made unsupported claim to represent the employees covered by the contract. A case dispositive of the 8(a) (2) issue in this case is Leubren Paper Corporation, 105 NLRB 567, in which the Board dismissed a complaint alleging a violation of Section 8(a)(2), where the Respondent had entered into a collective-bargaining agreement with a union, which was not an incumbent union, after a representation petition had been filed by a rival union and no action had been taken on the petition by the Regional Director. The Board in dismissing the complaint held that there was no question concerning representation at the time the contract was executed.15 The General Counsel contends, however, that under the Midwest doctrine, when the Respondent Company recognized the Independent, a question concerning repre- sentation is conclusively presumed to have existed solely by virtue of the pendency of the International Union's petition which had been filed 3 days earlier. It is not believed the General Counsel's premise is correct that when the Respondent recog- nized the Independent, there occurred a per se violation of the Act merely by his showing the International's petition for certification of representatives had not been dismissed or otherwise disposed of by the Regional Director. To accept this argu- ment is to give credence to a mechanistic theory without regard to the attendant realities in this case. Corroborative of this belief is the Board's finding in William Penn Broadcasting Company 16 where it stated that it is not the purpose of the Act to cause postpone- ment or interruption of collective bargaining "whenever a clearly unsupportable or a specious rival claim is made upon an employer." In that case the Board held that the Midwest doctrine does not apply unless the petition filed by the recognized union's rival has a "character" and "timeliness" which creates a real question concerning representation. It would appear, therefore, that a prima facie case of violation of the Act under the Midwest Piping principle is not made out merely by establishing that the Inter- national Union's representation petition was on file with the Regional Office at the time the Company recognized the Independent Union. It is incumbent upon the General Counsel to establish also, by a preponderance of the evidence, that "the petition has a character and timeliness which creates a real question concerning is See also N L.R B. v Swift & Company, 294 F. 2d 285 (CA. 3). s 93 NLRB 1104, 1105. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation." 17 Not only has the General Counsel failed to do this but there is an additional failure of proof on his part in that he did not prove that the Inter- national Union represents a "substantial number of employees." See Section 9(c)(1)(A) of the Act. It has been "the Board's administrative experience that in the absence of special factors the conduct of an election serves no purpose under the statute unless the petitioner has been designated by at least 30 percent of the employees." 18 Although the determination of substantial interest is administrative 19 and may be made ex parse by the Regional Director, it does not relieve the General Counsel in this case, a complaint proceeding (as distinguished from a representation proceed- ing), from showing in an appropriate manner that such administrative determination had been made and that the Regional Director had found that the petitioning Inter- national Union did represent "a substantial number of employees." In lieu of this procedure, such proof could have been made at the hearing by the introduction of those authorization cards allegedly signed on behalf of the Inter- national. This the General Counsel failed to do. He contended when asked to pro- duce the International Union's alleged authorization cards at the hearing that Board policy does not require him to do so and all that is necessary, even in the absence of a determination by the Regional Director that a question of representation exists, is his mere assertion that the International Union did turn over to the Regional Director a sufficient number of authorization cards, and that the Trial Examiner must accept his oral representation and, therefore, he need not produce the cards. Respondent, on the other hand, accuses the General Counsel of not having the required number of signed authorization cards showing that the International Union represents "a substantial number" of Respondent's employees. Respondent con- tends also that in order to prevent the Independent from being recognized, the International, when it learned the Independent had over 100 names on its petition, hurriedly filed a representation petition with the Regional Office. Counsel for the Charging Union, the International made a statement in the record that he had requested the General Counsel to place in evidence the authorization cards, showing that the International represented "a substantial number of the em- ployees," but the General Counsel had refused to do so. Under the circumstances revealed by this record, it was necessary for the General Counsel to produce these authorization cards, especially where, as here, the Regional Director took no action whatever on the representation petition which was filed by the International Union This is particularly so where there is no evidence of bad faith on the part of the Respondent and the Respondent denies that the requisite number of its employees signed authorization cards for the International Union. It is clear, due to the Regional Director's inaction, that the issue of whether the International obtained the signatures of a "substantial" number of Respondent's employees is litigable in a complaint proceeding, but the General Counsel stands in a peculiar, paradoxical posture when he refuses to make available the very evidence which would enable the Respondent to litigate this vital issue Under the circum- stances presented here, the General Counsel cannot refuse to produce the authoriza- tion cards in a complaint case, in the absence of some showing that security, public policy, or confidence or some other reason for such immunity can be availed of by him Recently the Court of Appeals for the Fifth Circuit had this to say with respect to the refusal by the General Counsel to produce certain evidence: 20 There is no suggestion in the record that the testimony sought to be elicited from the Board attorney is privileged. The testimony does not involve matters vital to national security, . . . or information which should be kept secret for other reasons It is not necessarily related to any physical records The Board's General Counsel made no explanation and the trial examiner was satis- fied with the bare fact that the agency head charged with knowing what is right and good for the public to know had made his decision. Fundamental fairness requires that [Respondent] be allowed to introduce testimony that may impeach the evidence offered against it. The N.L.R.B cannot hide behind a self-erected wall evidence adverse to its interests as a litigant. 5 U.S.C.A. 622 does not call for a result so inimical to our traditions of a fair trial. 14 Tilliam Penn Broadcasting Company, supra, at 1105 "National Labor Relations Board, Statements of Procedure, September 14 1959, Sec- tion 10118(a) "General Electric Company, 110 NLRB 1109 20 N L R B v. Capitol Fish Company, 294 F 2d 868, remanding 126 NLRB 9R0 IOWA BEEF PACKERS, INC. 635 This case presents an anomaly in our system of justice. The agency official charged with responsibility for asserting the claim of privilege is also the prose- cutor whose successful prosecution of this case could depend on exclusion of the evidence for which the privilege is claimed. And, he is one part, the trial court (examiner) a second part, and the reviewing court (the Board) a third part of one agency-the agency bringing the action. Impartiality is the life of justice. It is against all concepts of impartial justice for the trial examiner to assume that the Board, through its regulations, or the General Counsel, by virtue of his office, is the final arbiter to decide whether a Board attorney should testify. Responsibility for deciding the question of privilege properly lies in an impartial, independent judiciary-not in the party claiming the privilege and not in a party litigant. [Citations omitted.] The General Counsel's peremptory refusal, therefore, to produce the International's authorization cards resulted in a failure of the proof required of him to make out a violation. a necessary element of his case, and is, therefore, fatal to the allegation in his complaint that Respondent violated Section 8(a) (2) of the Act when it recognized the Independent Union. It is recommended, accordingly, that the allegation of the complaint with respect to the violation of Section 8(a)(2) be dismissed. C. The alleged violations of Section 8(a) (3)21 Frank Laird, an alleged discriminatee, who was formerly president and vice presi- dent of the defunct Fort Dodge Packing Company's Local 607, of which the parent union is the International herein, applied for a job with the Respondent Company on February 13, 1962.22 When he did not hear from the Company, he inquired about his job application from Anderson, president of Respondent, who told him that the Company was not hiring at that time. Anderson, however, referred him to one of the subcontractors engaged in the construction of the plant who hired him. Sometime in June, after Laird had gone to work for the subcontractor, Laird again asked Anderson for a job. Anderson told him to get in touch with him later. Shortly thereafter, in processing Laird's job application, the Company obtained a medical report dated December 18, 1958, from its insurance company with respect to Laird's physical condition. This medical report states that while Laird was employed by Fort Dodge Packing Company in December 1957, he suffered a back injury, was hospitalized, and returned to work on January 6, 1958. This report fur- ther states that on March 19, 1958, while lifting a 300-pound weight, Laird again injured his back and was in bed for 5 days. The doctor who attended Laird wrote a letter dated April 1, 1959, to the insurance company with which Fort Dodge Packing Company carried its employees compensation insurance in which he rec- ommended that Laird should not only be hospitalized for further treatment, but also advised that Laird should not be permitted to return to work "because if he does we are going to be faced with a chronic back problem that may require a spinal fusion." Laird also admitted that when his doctor discharged him in May 1959, he warned him not to do any heavy lifting and Laird testified that as of the present time "I don't go around lifting any more than I have to." Anderson testified that when Laird applied for a job he told him there was none available at the time with the Company but since he made a favorable impression, Anderson suggested to Laird that he talk to one of the subcontractors working on the construction of the plant who hired him. In view of the fact that Laird was under consideration, if and when there was a job opening, and since it is company policy to check with references and also with their employees on all applicants with respect to their qualifications and character, Anderson learned in speaking with his employees that Laird had a chronic back con- dition. The Respondent's insurance company was then contacted which advised Anderson that the Company should not hire an applicant who has a medical history of a back ailment. Knowing the work in a packing plant is strenuous and that if 21 The section above referred to reads as follows : SEc. S (a) It shall be an unfair labor practice for an employer - (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . 22 The original charge and amended charge filed by Laird on September 21 and October 5, respectively, allege he was refused employment on June 25 The complaint, however, alleges Laird was refused employment on February 26. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laird were hired it would increase his insurance rates, and having been advised by their insurance company not to hire men with chronic ailments, Anderson decided not to employ him 23 John Miner, who alleges he was refused employment by the Company because he was formerly an official in the defunct local of the Fort Dodge Packing Company's union, first applied for a job with Respondent in November 1961, a week after the Fort Dodge Packing Company plant closed.24 With two other men, he drove to Denison, Iowa, where Respondent operates a packing plant. The three men applied for jobs to Anderson, president of the Company. Miner testified that Anderson said to him: "What do you think of your God damned union now? It's closed your plant." The next time Miner applied for a job with Respondent was on June 26, 1962, when he went out to the construction site of the Respondent's new plant and spoke to Louis Thiede, who was then assistant to the president 25 Thiede stated there were no jobs then available with Respondent, but through Thiede's intercession, Miner was hired by one of the subcontractors working on the construction of the new plant. He worked for approximately 2 weeks for the subcontractor who then offered him a permanent job which he refused, whereupon he left the employ of the subcontractor. After his rejection of the subcontractor's job offer, Miner filed a written application with Thiede, Respondent's official, about a week before the new plant went into operation. Thiede advised him that all the production jobs had been filled in anticipation of the imminent opening of the plant. Miner also testified that around this same period of time, he happened to see Anderson in a restaurant and again asked him for a job. According to Miner's testimony, Anderson said "It wasn't his fault that the Union closed Fort Dodge Packing Company and that I had just as well seek employment elsewhere as the rest of the union members." This testimony of what Anderson is alleged to have told Miner when he first spoke to Anderson about a job in November 1961, supra, and also at the restaurant, must be evaluated in the light of the evidence in this record, and by an analysis of the realities of the situation. Such evaluation leads to the conclusion that Anderson's denial that he ever spoke to Miner in a restaurant or said at any time that he would not hire Miner because of his union activities is credited. It strains one's credulity to believe that the president of two packing plants, having the executive responsi- bilities he had and evidently well versed in labor relations, due to his extensive dealings with unions in the past,26 would be so incredibly naive as to senselessly compromise his company by the admittedly damaging statement to Miner that he would not hire him because of his union activities at the old Fort Dodge Packing Company plant. Such testimony is inherently unbelievable. Corroborative of Respondent's defense that Miner was not hired because he had a poor work record is the fact that when the company officials inquired of those of their employees who had worked with Miner at the Fort Dodge Packing Company plant, they learned he was not competent and so decided not to hire him. There is also the cogent fact that Trupe and Bean (who accompanied Miner to Respondent's Denison plant in November when all three applied for jobs) were hired by Anderson, even though Trupe was a member of the Union at the Fort Dodge Packing Company plant and Bean was an officer of the same Union. Anderson, president of Respondent, testi- fied Trupe and Bean also told him when Miner's application was under consideration that Miner was not a competent worker. For these reasons, Anderson testified, he decided not to hire Miner. James Grove, who was formerly president of the Union at the Fort Dodge Pack- ing Company plant, applied for a job with the Respondent around May 1, 1962. The next time he saw Anderson about a job was when he went to the plant on September 10,27 at which time he was accompanied by another alleged discriminatee, Maurice Nickless. They were interviewed by Anderson, Respondent's president. 23 Laird's testimony that Anderson told him he would not hire him because of his union background is not credited . See infra 24 Miner alleges in his charge filed on October 5, 1962, that Respondent refused to hire him on July 118. 25 Thiede later became production manager of the new plant on October 2, 1962, when it went into production. 20 The Charging Union herein formerly represented Respondent 's employees at its Denison plant 2-, Grove's original charge, dated September 21, avers lie was refused employment on June 25 , his amended charge places it as July 30 and the complaint states it was on September 10. IOWA BEEF PACKERS, INC. 637 Grove questioned Anderson as to why the Company had not hired him as it was his understanding that former employees of the defunct Fort Dodge Packing Company were entitled to preference in filling the jobs at the new plant. Anderson explained to Grove that the only people who would be given preference for jobs in the new plant when it became operational in 3 weeks were those employees who worked on the construction of the plant . Grove then questioned Anderson as to what the starting hourly wage rate would be which he told Anderson he had heard was going to be $1 .83. Anderson told Grove he had been misinformed , that the hourly wage rate would be $2.18 . Anderson also explained to both Grove and Nickless the insurance plan and other fringe benefits which the employees at the new plant would have. They were then shown through the new plant. After they were escorted through the plant, Anderson asked Thiede , plant manager, if there were any jobs which Grove and Nickless could fill. Thiede replied that all the production jobs were filled in view of the imminent opening of the plant, but he suggested to Grove and Nickless that they fill out application forms and contact him later. When Grove next came out to the plant in October and spoke to Anderson about a job, Anderson told him that he could not understand why Grove had filed an unfair labor practice charge against him on September 21, since the time he was last out to the plant on September 10 to apply for a job, in view of the cordial meeting they had had at that time. Anderson asked him how he could have possibly filed a charge falsely alleging that he told Grove that he would never get a job at the plant. Grove, according to his own testimony, denied to Anderson that he had ever stated that in his charge. Grove then repeated to Kemp, a company official, his denial that he had ever made such an accusation in the charge. The charge, which is dated September 21, 1962, alleges: "I am James Grove, on August 11, 1962, I contacted Andy Anderson for work, he told me I was wasting my time, you will never get a job here " 28 Anderson accused Grove also of lying when he made the allegation in the charge that he (Anderson) had told Grove he was wasting Anderson's time and that Ander- son was too busy to talk to him. Grove then admitted to Anderson and Kemp that this statement in the charge was not true. On cross-examination, Grove acknowl- edged that he was not certain that the person he spoke to on this occasion was Anderson when Grove asked for a job, but he insisted that whoever it was that he spoke to did state that he was wasting his time but Grove did admit that the allegation in the charge that Anderson told him he would never get a job with Respondent was untrue On direct and cross-examination, Grove testified that in a union -sponsored tele- vision program which dealt with the Union's efforts in attempting to organize the employees at Respondent's plant 29 Anderson asked him to "go to the meeting if you want to undo the things you have done." When Grove was asked on direct ex- amination at the hearing what union Anderson was referring to, he replied he did not know. When Grove was asked on cross-examination if it was not true that he said on the television program that the union which Anderson referred to was the Hawkeye Industrial Labor Union (the Independent), Grove denied it. However, when the tape of this union-sponsored television program was replayed in the hearing room, it proved Grove's testimony was untrue as the recording showed that he said: "Well, I could have went to work [for Respondent] under certain conditions and the conditions being such that I would attend the meeting of the Hawkeye Industrial Labor Union and tell the men there that I thought they had a much better deal for a contract than they would ever get from any international union." Grove's version of the television program is not credited. In addition to the untruths, contradictions, and inconsistencies of Grove's testi- mony, the Trial Examiner was not favorably impressed with his demeanor while testifying. And superimposed upon this is the undeniable and cogent fact that at the time Grove alleged Anderson requested him to attend a Hawkeye Industrial Labor Union meeting, the Independent herein, is the fact that the Independent had not yet come into existence. zs Although the plant did not go into production until October 2, Grove filed his charge on September 21. cro With respect to this television program, which was telecast in January 1963, by it Fort Dodge station, Ruby, the International Union's organizer, stated on the program that all the International Union wanted was an election to determine the wishes of the employees but the Company would not agree to holding an election. On cross-examination, it was elicited from Ruby that it was the Company who wanted the Board to conduct an elec- tion and that it was the International Union that would not agree to an election See Leabren Paper Corporation, 105 NLRB 567 at 568. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Anderson, Respondent's president, denied that Grove was refused employment because of his union activities on behalf of Fort Dodge Packing Company Local 607 of which he was formerly an officer . Anderson testified that Grove did not make written application for a job until September 10, approximately 3 weeks before the plant went into production . It is uncontradicted that at that time, the entire work force of 160 men had been hired in anticipation of the plant 's imminent opening; approximately 80 of these were employees who had preference because of having worked on the construction of the new plant and the remaining 80 had been selected from the more than 1 ,500 applications then on file . Consequently, testified Ander- son, there were no job openings at the time Grove applied for a job. Maurice Nickless formerly worked at the old Fort Dodge Packing Company plant where he was chief steward for the Union . He made written application for a job with the Respondent Company on July 9, 1962. Later on, he went out to the plant and spoke to Anderson . His testimony is as follows: I told [Anderson] I was looking for a job. And the first thing that he said was, was I one of those union blanks, waiting around here for this plant to be built, and thinking that the Union was going to put me wherever they wanted me when it was completed ? . But, anyhow, he told me at that time that they was not going to have any of these union blanks getting back in this plant And he said that right now it probably would be alright , that they were a little hungry, but that as they were going to make a little money the first thing you know they would be voting the union in on us again. Then Nickless incredibly testified that after this dressing down that Anderson gave him, Anderson , nevertheless, referred him to a company official regarding a job. When he was asked if he saw the person Anderson referred him to for a job, he incoherently testified that he did not bother to see the person, "because the conversa- tion ended so quickly that I didn't think it would do me any good." Nickless accompanied Grove to the plant on September 10, at which time they again spoke to Anderson about a job. Although both Grove and Nickless had separately gone out to the plant shortly before this and had spoken to Anderson about a job , Nickless testified that he and Grove again told Anderson who they were and "that we were affiliated with the Union ." Nickless testified that he asked Anderson "why [he] wasn't given a chance to work here" in view of the fact "that [he] had done . . . all sorts of labor construction jobs." While on the witness stand, Nickless excused his bad memory, testifying that if he had not written down what Grove and Anderson said that day at the plant he would have been unable to recall what transpired when he accompanied Grove to the plant . From that point on, Nickless' testimony is vague and incoherent , other than he recalled that Anderson explained what wages and working conditions he proposed to give his employees when the plant went into production in about a month . Anderson did not promise them a job, Nickless testified , but told them he would keep them in mind and that they should check back with Thiede, the plant's production manager. Nickless has not heard from the Company since then. Because of Nickless' difficulty in remembering the details regarding his applying for a job, the General Counsel was compelled to resort to leading questions to elicit what had occurred when Nickless and Grove applied for work in the early part of September. In an unresponsive answer to a leading question by the General Counsel as to whether Anderson indicated they might obtain employment with the Company, Nickless testified that when Anderson showed them a paper outlining the wages and working conditions the plant would operate under, "he [Nickless] didn't think too much of" the proposals "because I didn't get a chance to read it all." Nickless also testified as follows: Anderson came back; and I am pretty sure that he made the statement upon enter- ing the room, ... that if we wanted to do him a favor that we could if we would go to these union meetings [of the Independent] and tell these members at the meetings that they didn't need an international union at this point; that they were just as well off with what they had; that he was not promising us a job, but he thought maybe that a place could be found or he gave us the impression that a job might be found for us. This alleged conversation with respect to Anderson asking them to favor the Inde- pendent Union took place on September 10, at a time when the Independent Union had been neither discussed , conceived, nor established . Therefore, Anderson could not possibly have promised Grove and Nickless favorable consideration on Septem- ber 10 if they would go to meetings of the Independent Union and persuade those attending not to favor the International Union. IOWA BEEF PACKERS, INC. 639 On cross-examination, when Nickless was asked the reason why he waited until July to apply for a job with the Company, he testified that his unemployment insurance did not expire until then. He also testified that when he later went out to the plant with Grove to apply for a job he did so "knowing that I wouldn't get a job anyhow." At another point in his testimony, Nickless admitted he had given a written statement to the General Counsel in which he stated that when he went out to the plant with Grove to apply for a job Anderson told Thiede, the production manager, "that we were O.K." When he was pressed by Respondent's counsel as to his bona fides in applying for a job, Nickless answered: "I think I might have been working out there if it were not for the fact that my wife was working and getting good money and I didn't have to." The allegation in the complaint that Respondent refused to hire Nickless on July 30, 1962, within the meaning of Section 8(a)(3) is not sustained by the evidence. Accordingly, it is recommended that the allega- tion in the complaint, as explicated infra, be dismissed. Eugene Thelen, the fifth alleged discriminatee, first sought a job with the Company on June 12, 1962. The next time he went out to the plant was around Septem- ber 1, at which time he filled out an application form. He spoke to Thiede, the production manager, and asked him if they had a committee to screen the applica- tion; whether Thiede was a member of the screening committee and who was on the committee. On the same day, he saw Anderson, Respondent's president, and asked him what his possibilities were of obtaining a job. Anderson turned to Thiede and asked him what the job situation was and Thiede replied that there were no vacancies at the time but they would keep Thelen in mind. Two days after the plant went into production, Thelen again went out to the plant and was interviewed by Anderson and Thiede. Anderson told Thelen his ap- plication "was on top of the pile" and "they had been considering it." However, stated Anderson, there was no job at the time but if and when there was and they could use Thelen, they would contact him. He then asked Anderson, "How will you let me know" to which Anderson replied that applicants are notified by "cards," whereupon Thelen said: "0 K. that's good enough for me." Approximately 2 months after this interview, and after the plant had been in operation for 2 months, Thelen asked Attorney Johnson, counsel for the Company, to intercede with Anderson as he was desperately in need of a job As a result of this conversation, Johnson arranged an interview for Thelen with Anderson on December 14. He was interviewed by both Anderson and Thiede. Anderson explained to Thelen that this interview had been arranged at the personal request of Attorney Johnson; otherwise, stated Anderson, his prospects of a job were bleak as there were then 500 to 600 applications remaining on file 30 Anderson, at the outset of the interview on December 14, assured Thelen that his application for a job would not be prejudiced, even though he had filed an un- fair labor practice charge against the Company on October 5, which alleged he was refused employment by the Respondent on September 29 because he had been a union officer while employed at the defunct Fort Dodge Packing Company plant. With respect to the unfair labor practice charge filed by Thelen, he testified: I donit know as I have [filed a charge] . . . I merely made a statement pertaining to the efforts that I made to obtain employment ... and [Anderson] said, "why did you do that" I said, "Well, I was kind of disappointed in a way, then I seen my chance to give them recognition by filing a statement." Anderson again assured Thelen this would not prejudice his application, pointing out to Thelen that many of his employees had not only been members of the Union at the Fort Dodge Packing Company plant but some of them had also been officers, including Thiede, the Company's production manager, who was a former president of that Union. Based on Thelen's own testimony, Anderson then asked Thelen: "If we hire you would you accept any job we offered you?" And I said, "that depends." And he said, "Depends upon what" And I said, "Well, if it would be within reason ." He said, "What do you mean?" And I said, "I want to be assured that it wasn't something that no one could do; I was kind of leery." On Thelen's cross-examination , it was elicited that he assured his benefactor, Attorney Johnson, in return for Johnson's interceding with Anderson on his behalf, 30 Written applications were considered in their order of priority based upon the date of application Thelen's application was not filed until around September 1, whereas others had made application as early as the previous February 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he would accept any job offered because of the desperate straits of him and his family. The cross-examination also brought out that instead of agreeing to accept any job he was offered, it appeared as if Thelen was not only interviewing Anderson but also telling Anderson how to run the packing plant. Anderson testified that when he asked Thelen if he was agreeable to accepting any job offered him, he replied not unless it was a job for which he was qualified. Based upon the poor impression Thelen made in the interview, as well as his attitude, Anderson testified, "I don't think I want this man." Discussion and Conclusions Section 8(a)(3) forbids an employer to discriminate against employees in order to encourage or discourage membership in any labor organization. This section outlaws discrimination for this purpose "in regard to [their] hire or tenure of em- ployment or any term or condition of employment." However, the Act does not cir- cumscribe an employer's right to hire, discipline, or discharge an employee for reasons not forbidden by the Act, even though the employee may be an active umon adherent or advocate. The employer can hire and fire at will, so long as his action is not based on union membership or intent to interfere with the purposes of the Act.31 And where a just ground for a refusal to hire appears, it is ordinarily a mere matter of speculation to say that the refusal to hire was because of union membership 32 Upon examination of all the facts, it must be determined whether or not the employer's refusal to hire the employees was motivated by a desire to discourage union membership or other employee activities protected by the statute. And where the Board could as reasonably infer a collateral motive as an unlawful one, the act of the management cannot be set aside by the Board as being improperly motivated33 It is not within the competency of the trier of the facts to search the record for subjective considerations upon which to base tenuous inferential conclusions when the objective factors in the record are before him and point to where the truth lies. To sustain the General Counsel's contention that these five alleged discriminatees were refused employment by Respondent because they all were former union officials of the local at the defunct Fort Dodge Packing Company plant would require validity to be accorded to inferences contrary to direct testimony.34 The direct testi- mony, which is uncontradicted, shows that after 80 of the available 160 jobs were filled by the preference men who had worked on the construction of the new plant, there were only 80 jobs to be allocated to the more than 1,500 men who had ap- plied for jobs. Moreover, instead of filing applications before construction com- menced on April 1, 1962, in order to be given the opportunity to be accorded preference in filling the jobs which would become available when the plant became operational, all of the alleged discriminatees (except Laird, who applied in Febru- ary) 35 did not apply in the case of Miner until June 26, Nickless until July 30, Thelen, August 29, and Grove, September 10, 1962. With more than 1,500 ap- plications on file for these 80 jobs (the other 80 having been filled by preference men), Respondent was not only in the fortuitous position of being extremely selec- tive in its hiring of employees but also attempted at all times to obtain the best qualified personnel available. The record reveals that in Laird's case, he was refused employment due to his chronic back ailment, Nickless because of his conviction for a serious felony, and in Respondent's judgment Miner was not a competent employee. With respect to Grove and Thelen what has been brought out supra speaks for itself.36 In view of Grove's and Thelen's testimony, it might well be that the Respondent, based on the circumstances in this case, could very well be entitled to avail itself of the principle that an employer has the undeniable right to operate its plant efficiently and to take such steps are are reasonably necessary to protect its business including the inalienable 31 N L R B. v. Electric City Dyeing Co., 178 F 2d 980,982 (C.A 3) 31 N L R.B v Jones & Laughlin Steel Corporation, 310 U S 1, 45 sa N L R .B v. Huber & Huber Motor Express, Inc., 223 F. 2d 748, 749 ( C A. 5). 141V L R B v Kaye, et at. d/b/a Arrow Press, 272 F. 2d 112 (C A. 7). 35 See footnote 22, supra ss Charlene Long's testimony that she overheard Anderson in March say he would not hire Grove and Nickless is not credited , as Grove did not apply for a job until May and Nickless in July. Moreover, it was evident from her testimony and demeanor that she was not kindly disposed toward Anderson because her husband who had applied for a job had never heard from the Respondent. IOWA BEEF PACKERS, INC. 641 right not to hire unqualified or incompetent employees 37 The trier of these may not substitute his judgment for that of the employer as to selection of employees. The Act proscribes the exercise of the right to hire only when it is employed as a discriminatory device 38 ... management is for management. Neither Board nor Court can second- guess it or give it gentle guidance by over-the-shoulder supervision. Manage- ment can discharge for good cause, for bad cause, or no cause at all. It has, as the master of its business affairs, complete freedom with but one specific definite qualification: It may not discharge when the real motivating purpose is to do that which Section 8(a) (3) forbids . . . 39 It is found, therefore, upon the entire record, that the five alleged discriminatees are not employed presently by Respondent for nondiscriminatory reasons and not for the reason ascribed by the General Counsel, namely, because they were all former union officials 40 The burden is on the General Counsel to establish affirmatively, by a preponderance of the credible evidence, that the Respondent has violated the Act, not on the Respondent to disprove it 41 Where, as here, the Respondent's explanation for these five men not being in its employ is a reasonable one, the burden of going forward with evidence shifts to the General Counsel to establish the falsity of the explanation by substantial evidence and the truth of his own interpretation.42 Unless there is a reasonable basis in the evidence for findings of discrimination, the Respondent need not excuse or justify its action.43 It is not the burden of the Respondent to show the absence of discrimination, but that of the General Counsel to establish its presence.44 The burden to make out a case of discrimination by substantial evidence rest continuously on, and does not shift from, the General Counsel to the Respondent 45 Substantial evidence is such evidence as affords a substantial basis of fact from which the fact in issue can be reasonably inferred.46 Substantial evidence must have rational probative force; it must carry conviction; it must be more than a scintilla, and must do more than create a suspicion of the existence of the fact to be estab- lished.47 Moreover, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is what is meant by consideration being given to the "whole record." 48 And the test is not satisfied by evidence which gives equal support to inconsistent inferences49 The evidence here is devoid of any credible discriminatory reason for Respondent's failure to hire the five alleged discriminatees. Furthermore, the General Counsel failed to show there were any job openings for which these men were qualified. It is clear that a discriminatory refusal to hire within the meaning of Section 8(a) (3) cannot be found unless it is shown job vacancies existed for these five men at the time of the alleged discrimination.50 The evidence does not show this. It is concluded ai Cf. Southern Steamship Company v. N.L.R B., 316 U.S. 31 ; N L.R B. v. Birmingham Publishing Company, 262 F. 2d 2, 8-9 (C.A. 5). as N.L R B. v. Audio Industries, Inc, 313 F. 2d 858 (C.A. 7) 39 N L.R B. v. T. A. McGahey, Sr., et at. d/ b/a Columbus Marble Works, 233 F. 2d 406, 412-413 ( C A. 5). See also N.L R B. v. Hudson Pulp & Paper Corporation, 273 F. 2d 660, 666 (C A. 5). 40 It appears that Miner, Grove, and Thelen might have misappropriated the funds re- maining in the treasury of the local union at the Fort Dodge Packing Company plant when it disbanded and that this also entered into Respondent's consideration of their employ- ment applications. 41 Section 10(e) of the Act. See American Flint Glass Workers' Union V. NL.R.B. (Bartlett Collins Company), 230 F. 2d 212 (C.A.D^C.), cert. denied 351 U.S. 988. 42 Martel Mills Corporation v. N.L.R.B., 114 F. 2d 624 (C.A. 4) ; N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). 41 N L R B. v. Wagner Iron Works, 220 F. 2d 126, 127 (C.A. 7). 44 New Big Creek Mining Company, 105 NLRB 97, 101. 45 N L R B. v. Brady Aviation Corporation, 224 F. 2d 23, 25 (C A. 5). 4e N L.R B. v. Columbian Enameling & Stamping Co., Inc., 306 U.S. 292. 4' N.L R.B. v. Del E. Webb Construction Company, 196 F. 2d 702 (C.A. 8). 41 Universal Camera Corporation v. N.L.R.B., 340 U.S. 474. 49 Eastern Coal Corporation v. N.L.R.B., 176 F. 2d 131 (C.A. 4) ; see also N.L.R.B. v. Stafford Operating Company, 206 F. 2d 19 (C.A. 8). 50 Climax Spinning Company, 101 NLRB 1193, 1204. See footnote 5 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and found , therefore , that the General Counsel has failed to sustain his burden of proving by a preponderance of the evidence that Respondent refused for discrimina- tory reasons to hire Frank Laird, John Miner, Maurice Nickless, Eugene Thelen, and James Grove in violation of Section 8(a) (3) of the Act. Accordingly, it shall be recommended that the complaint be dismissed as to these five alleged discriminatees. D. The alleged violations of Section 8(a) (1) The complaint alleges Respondent violated Section 8(a)(1) by threatening to discharge employees and to close the plant, interrogating employees, instructing them to sign "Employment Contracts ," and offering to give favorable consideration to job applicants if they would attend union meetings in order to persuade those in attend- ance that present employment conditions are highly satisfactory .51 The Respondent denies all these allegations. Discussion and Conclusions In determining which version is to be credited, reliance has been made to a great extent on those witnesses who are presently employed by the Respondent Company. As such, they depend on their jobs for their livelihood and they understand that after testifying they must continue in the employment of the Respondent. This practical consideration, coupled with the normal workings of human nature, has led the trier of these facts to place considerable credence upon the following wit- nesses' testimony: Roger Grove,52 Fred C. Williams, Vernon Dornath, Larry Reeves, Dennis Wesley, and Joe Fitzgerald. Roger Grove, who is presently employed by Respondent, testified that Anderson, president of the Respondent Company, asked him while at work how he "felt" about the International, the Charging Union. Grove testified that Anderson told him the Union was no good and "You remember that and you had better watch your step." Grove also testified to a meeting he attended at the plant during working hours at which time Anderson told the assembled employees "that he would lock the door if it came to where the International Union would get in And then he said also that he would hire a whole new crew if he had to." Grove also testified, which was corroborated by Fitzgerald, a fellow employee, that Anderson told the employees at the same meeting that he knew all about the International Union's plan to hold a meeting and that he knew not only the date when it was to be held but also the place. According to Fitzgerald, Anderson said: "I know those things just as fast as you do." Roger Grove further testified that he attended an employees' meeting at the plant on or about November 27. At that time, Thiede, production manager, warned the employees that if the International Union were selected by them, Anderson would transfer his business to Denison where he operated another plant and close down the Fort Dodge plant. This was corroborated by Fred C. Williams, Vernon Dornath, Larry Reeves, Dennis Wesley, and Joe Fitzgerald who are all presently employed by the Company. Williams, another employee, testified that he attended two union meetings which were held on the same night. One meeting was held by the International Union and the other by the Independent Union. Thiede called him into his office the morning following these meetings, and warned him about being seen with adherents of the International Union. Williams testified that Thiede cautioned him "if we associated with them kind of guys that we would be out of a job." Fitzgerald, who is presently employed by Respondent, testified that shortly after the opening of the plant on October 2, Thiede, the production manager, called him 51 The pertinent provisions of the National Labor Relations Act, as amended (61 Stat 136, 29 U . S.C 151, et seq ), are as follows: SEC 8 (a ) It shall be an unfair labor practice for an employer-- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; SEC 7 Employees shall have the right to self-organization, to form, join, or assist 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 , and shall also have the right to refrain from any or all of 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). 62 Not to be mistaken with James Grove, an alleged discriminatee in this proceeding. IOWA BEEF PACKERS, INC. 643 to his office and told him he had heard he was soliciting employees to sign Interna- tional Union authorization cards. Thiede said, according to Fitzgerald, "Didn't I realize that Anderson would shut her down, lock that front door?" Vernon Dornath, who is presently employed by the Company, testified that he was called to Anderson's office and questioned with respect to a meeting of the International Union which Anderson said he had heard was to be held at Dornath's home. According to Dornath, Anderson said. "I am not going to fire you, but there's other ways of getting the job done.... You'd better start turning around and start going the other way with it." Based upon the credited testimony delineated above, of Roger Grove, Dornath, Reeves, Williams, Wesley, and Fitzgerald, it is found that Respondent interfered with, restrained, and coerced its employees by the following acts: Creating the im- pression that its employees' union activities were under surveillance, interrogating them, warning them it would close the plant, and threatening them with discharge. It is recommended that the allegations of the complaint be dismissed with respect to Respondent instructing its employees to sign "Employment Contracts" 53 and offer- ing to give favorable consideration for employment to individuals if they would attend union meetings and attempt to persuade those in attendance that present employment conditions are highly satisfactory, as the General Counsel has not established by a preponderance of the evidence that the Respondent committed these alleged proscribed acts. E. The alleged violation of Section 8(a) (4) The complaint alleges that on or about September 28, 1962, Respondent, by its president, Anderson, violated Section 8(a)(4) 54 when he refused to hire James Grove because he filed a charge The evidence shows that when the General Counsel's representative, Charles J. Frisch, spoke on the telephone to Anderson the latter said: "I was going to hire [Grove] but now he filed this charge, which is full of lies, and a liar is as bad as a thief, and I won't have a thief working for me." At another point in his testimony, Anderson stated that nevertheless Grove was still under consideration for employment, "if I get this guy [Grove] figured out maybe I can do something for him." Grove, however, on his own admission, testi- fied that he had lied when he alleged in his charge that Anderson told him he would never hire him.55 In vindication of the policy of encouraging candor among persons who seek Board aid in "redressing their grievances" under the A ct,56 the Board has ordered with- holding of the remedy, in part, as in Wilson & Ca., 11 LRRM 2545, or in full, as in Remington Rand, 13 LRRM 2565, depending upon the gravity of the offense. See also T. A. O'Donnell, d/b/a O'Donnell's Sea Grill, 55 NLRB 828, where all remedy was withheld when an employee deliberately falsified on the witness stand 57 Since Grove's conduct in deliberately falsifying the allegation he made in his charge is such that he had abused the Board's processes in doing so, it will be recom- mended that no order issue requiring Respondent to hire Grove even though Ander- son's conversation with Frisch, supra, was a violation of Section 8(a) (4), but it will be recommended that Respondent cease and desist from refusing to hire ap- plicants for employment who file charges against it. CONCLUSIONS OF LAW 1. The activities of the Respondent set forth in section III, above , occurring in connection with the operations of Respondent 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. 2. United Packinghouse , Food and Allied Workers, District No 3, AFL-CIO, called the International herein , and Hawkeye Industrial Labor Union, called the "The evidence clearly shows that whether employees wished to sign these "employment contracts" was purely voluntary on their part. M Section 8(a) (4) : "It shall be an unfair labor practice for an employer to discharge or otherwise discriminate against an employee because he has filed charges or given testi- mony under this Act." 55 See supra ee Republic Steel Corp. v. N L R.B , 311 13 S. 7, 11. 54 Clayton E Smith et al , d/b/a Clayton-Willard Sales, 126 NLRB 1325 at 1343 727-083-64-vol, 144-42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Independent herein, are labor organizations within the meaning of Section 2(5) of the Act, admitting to membership employees of the Respondent. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, as detailed above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By refusing to hire applicants who filed charges against it, Respondent has violated Section 8(a) (4) of the Act. 5, The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Hy Greenspun and Harry Braymes, t/a Liberty Food Distribu- tors and Warehouse Employees Union , Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 5-CA-2301. September 18, 1963 DECISION AND ORDER On July 11, 1963, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter the Respondents filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in the present case was issued on December 31, 1962, upon charges filed by Warehouse Employees Union, Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the 144 NLRB No. 68.