H & W Construction Co., Inc.

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except to the extent that such rights might be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959 WE WILL bargain collectively upon request with the above-named Union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment. The bargaining unit is: All production and maintenance employees employed at the Employer's plant in Southampton, Massachusetts, but excluding office clerical em- ployees, guards, professional employees and all supervisors as defined in the Act. WE hereby completely disestablish the Shop Committee as a representative of any of our employees for the purpose of dealing with us concerning griev- ances, labor disputes, wages, rates of pay, hours of work, or other terms and conditions of employment, and withdraw all recognition from the Shop Com- mittee as such representative. WE WILL NOT interrogate our employees concerning their union activities WE WILL NOT threaten our employees with the closing of the plant if they join or assist the above-named labor organization. WE WILL NOT interfere with, restrain, or coerce our employees by conducting a poll to determine their desires on the question of Union representation. All our employees are free to become or remain members of a labor organization, or refrain from doing so, except to the extent that such right may be affected by any agreement in conformity with Section 8(a)(3) of the National Labor Relations Act, which might require membership in a labor organization as a condition of employment. ROBERT W. JOHNSON AND CLIFFORD W. JOHNSON CO-PARTNERS DOING BUSINESS UNDER THE TRADE NAME OF JOHNSON METAL PRODUCTS CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 20th Floor, John F. Kennedy Federal Building, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 223-3353. H & W Construction Company, Inc. and International Union of Operating Engineers, Local 826, AFL-CIO. Case 16-CA-29298. November 10, 1966 DECISION AND ORDER On September 27, 1965, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 161 NLRB No. 77. H & W CONSTRUCTION COMPANY, INC. 853 The National Labor Relations Board 1 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 exceptions and briefs and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. As the Trial Examiner found, the union business agent, Booth, met with Respondent's president, Wilson, on February 11, 1965, at the Respondent's office. Booth informed Wilson that the Union was seek- ing recognition and bargaining in a unit consisting of the Respond- ent's employees. He then placed on a table cards signed by all five of the Respondent's employees, authorizing the Union to represent them in collective bargaining. Wilson looked at the cards and conceded that a majority of the employees had signed cards. Booth and Wilson then discussed generally the labor problem of the contractors in the area. The discussion concluded with Wilson stating that he would have to discuss the matter of recognition with his partner, the Respondent's vice president, C. L. Holley. On February 16, 1965, Booth wrote to the Respondent confirming the conversation of February 11 and again requesting recognition and bargaining. One March 19, 1965, the Respondent replied, refusing to recognize the Union as the bargaining representative for its employ- ees, stating that it did not believe it was engaged in commerce within the meaning of the Act. On March 26, 1965, the Union filed the charge which gave rise to this proceeding. The charge did not allege that the Respondent had committed any other unfair labor practices. On June 9, 1965, in its answer to the complaint, the Respondent for the first time declared that it doubted the majority status of the Union because of the "methods used . . . in [the Union's] organizational efforts" which it alleged made an expression of "the uninhibited desires of employees impossible." At the hearing Respondent asserted that its doubt as to the Union's possession of a majority was based upon an investigation it had conducted after it had received the Union's demand for bargaining, and which, according to it, had revealed that its employees were induced to sign the cards by the Union's representations that all the contractors in the area who were engaged in performing work of the type performed by the Respond- ent would be requested to bargain as a multiemployer group. The Trial Examiner concluded that the Respondent violated Sec- tion 8(a) (1) and (5) of the Act by refusing to recognize and bargain with the Union on the basis of the Union's majority card showing, and recommended the usual bargaining order. He reasoned that the 1 Member Brown not participating. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD burden was on the Respondent to come forward with proof that it had a substantial and reasonable ground for doubting the validity of the Union's majority showing, and that the Respondent had failed to sustain this burden. We do not agree that the burden thus lay with the Respondent to support its assertion of a good-faith doubt of the Union's majority status.' Rather the rule is, as set forth more fully in the Serpa case,3 that the burden is upon the General Counsel to establish that the employer in bad faith declined to recognize and bargain with the Union. However, upon consideration of the entire record in this case, we conclude that the General Counsel has here sustained this burden. Our reasons for so finding are subsequently set forth. But first of all we note that in this case there is a clear showing that the Respondent, at and prior to the time of its refusal to bargain, did not dispute the Union's majority status. Indicated no desire for an election, and predicated its refusal to comply with the Union's demand solely upon its contention that its operations were outside the reach of the Act and the Board's jurisdiction. In this posture of the case, the basic principles of law that frame the question for our deter- mination are clearly settled. Thus the Act imposes an obligation upon an employer to bargain upon request with a union that has been desig- nated by a majority of employees in an appropriate unit, and this obligation exists whether or not the union has been certified by the Board. An employer is warranted in refusing the request of such a union only if his refusal is motivated by a good-faith doubt of the union's designation by a majority.4 And conversely, good or bad faith is irrel- evant where an employer's refusal is bottomed upon reasons other that those related to the union's majority status. Thus the Sixth Cir- cuit Court of Appeals has stated that "good faith is not available as a defense to a charge of refusal to bargain where the refusal to bargain is based on an erroneous view of the law.5 And the Board with court a In rejecting the Respondent's assertion of a good-faith doubt, the Trial Examiner, as is evident from his reasoning, adopted the standard of proof the Board applies to an 8(a) (5) case where there has been a preexisting bargaining relationship and the respondent em- ployer is seeking to overcome a rebuttable presumption of continuing majority status aiis- Ing from a prior certification or contract See, e g , Celanese Co) poration of America, 95 NLRB 664 And see also Laystrom Mannfactni ing Co , 151 NLRB 1482, which the Trial Examiner cited in support of his reasoning Unlike these cases, the present case is not one involving a prior bargaining relationship which a respondent employer would disrupt, but rather a new relationship which the Charging Union is seeking to establish and hence the standard of proof relating to this issue is different John P. Serpa, Inc., 155 NLRB 99. See also Aaron Brothers Co of California, 158 NLRB 1077. ' See, e .g., United Mine Worl ers of America v . 4rkansas Oak Flooring Co, 351 U S. 62; N.L R B v. Philamon Laboratories, Inc, 298 F 2d 176, 179 ( C A. 2) ; Snow (C Sons v N L.R B , 308 F 2d 687 (C A. 9) ; N L R B v Kellogg's, Inc , 347 F 2d 219 (C.A. 9) ; Happach d /b/a 14th St . Market v NLRB , 353 F 2d 629 (C.A. 7). 5 Old King Cole, Inc v. N.L R.B, 260 F.2d 530, 532. H & W CONSTRUCTION COMPANY, INC. 855 approval has held that an employer's good-faith but erroneous belief that the unit requested by a union is inappropriate,6 that the union representatives were under a legal disability which prevented them from binding the union,' or that its employees were independent con- tractors,8 does not constitute a valid defense to a refusal-to-bargain complaint, where the record otherwise establishes that the union is the duly designated representative of the employer's employees. In the case now before us the trial Examiner found, , and we agree, that the Respondent's response to the Union's recognition request, asserting a lack of jurisdiction over the Respondent's operations, was clearly without merit. In these circumstances it follows that Respond- ent, in rejecting the Union's bargaining request for a reason that was insufficient as a matter of law, thus failed to comply with its lawful bargaining obligation," and we agree with the Trial Examiner's con- clusion that Respondent's conduct thereby was in violation of the Act. True, Respondent in this proceeding seeks refuge in a defense that it possesses a good-faith doubt of the Union's status as majority rep- resentative. Consideration of the entire record demonstrates, however, that this is an afterthought, unrelated to the Respondent's motivation as of the time it refused the Union's request for recognition. As noted above, the. Respondent did not raise this contention until after a charge had been filed by the Union. and complaint had been served upon Respondent in this proceeding. As we have noted earlier, Respondent expressed no doubt of the Union's status at or prior to the time of its rejection of the Union's request. The record discloses that on February 11, 1965, at the time of its demand, the Union exhibited to the Respondent designation cards signed by all employees in the appropriate unit. The Respondent did not challenge the valid- ity of the cards, from the standpoint either of their genuineness or the manner in which they had been obtained. On the contrary, as the Trial Examiner found, the Respondent, through its president, at that time "agreed that a majority had signed." 10 At no time, then or later, did the Respondent request or indicate any desire for an election. It delayed for more than a month its formal response to the Union's bargaining demand. Thus it had ample time to assess the situation and to reflect on its position. When in its letter of March 19, 1965, the Respondent finally responded to the Union's demand, it made no mention of any doubt as to the validity of the Union's majority. 6 United Aircraft Corporation v. N L R.B . 333 F 2d 819, 833, cert denied 380 U.S. 910 ; Florence Printing Co v N.L R.B., 333 F.2d 289 (C A. 4). 7 N L R B. v. Burnett Construction Co., 350 F .2d 57 (C A. 10). 8 N L.R B v. Keystone Floors, Inc., 306 F 2d 560, 564 (C.A 3) 8 Cf Polish National Alliance v N.L.R B , 136 F 2d 175, 180-181 (C A. 7), affd. 322 U.S. 643 10 At the hearing the Respondent stipulated that the cards were authentic. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Instead it rested its rejection solely and entirely on the stated ground that it believed itself not to be covered by the Act. And it was not until some 11 weeks later, when it filed its answer to the complaint, that the Respondent for, the first time declared good-faith doubt of majority as the reason for its refusal to bargain. In the Polish National Alliance case, supra, the Respondent, as here, initially sup- ported its refusal to bargain upon the contention that the Board did not have jurisdiction, and much later at the time of the hearing chal- lenged the Union's majority as well as the appropriateness of the unit. The court succinctly disposed of the Respondent's belated contention with the following comment (at 181) : ... it seems to us that an employer is in an unfortunate position in attempting to justify before the Board its refusal to bargain for a reason that apparently did not occur to it prior to the hearing. What the court said in that case is equally applicable here.11 Moreover, the circumstances recited above appear to us to provide clear and compelling affirmative evidence, certainly enough to make out a prima facie showing, that the Respondent at the time of its refusal could not in truth have entertained any doubt whatever of majority, much less a good-faith doubt. The Respondent's earlier failure to suggest doubt as its reason, particularly when coupled with the wholly unrelated reason it had assigned, quite strongly supports an inference that Respondent's belated ,assertion of doubt as to the Union's status came as an afterthought and was urged in bad faith. Nor has the Respondent rebutted the aforesaid affirmative showing of a lack of good-faith doubt. The Trial Examiner's findings as to the inadequacy of the evidence presented by the Respondent in support of its alleged claim of good-faith doubt are amply supported by the record'. 12 On this record, we think it clear that the General Counsel U See also Happach v. N L.R B., supra, footnote 7, where the court held that an alleged good-faith doubt, not expressed at the time of the refusal to bargain, was not available to an employer as a defense to an 8 ( a) (5) complaint. In the cited case the employer had refused to give any reason for its refusal , other than that he was acting on the advice of counsel whose name he refused to supply. 12 Although the Respondent claimed that the authorization cards were invalid, assert- edly because they were secured through a misrepresentation that they would be effecti'e only if all other area contractors' employees signed up, no probative evidence was adduced to support that assertion. The Respondent offered evidence only of a statement which its president, Wilson, testified was made to him by Union Representative Booth at the time of the recognition request, that all other area contractors were to be organized Wilson did not, however, contradict Booth's specific testimony that he read from his folder when making the demand for a description of the claimed appropriate unit, which was limited to the Respondent 's employees. A union's declared intention to seek to organize the employees of other contractors similarly situated , such as Wilson testified was made to him , even if made to employees, will not warrant invalidation of unambiguous authorization cards signed by employees. And certainly such invalidation is not warranted where, as here, the record establishes no more than that the declaration was made only to the employer. H & W CONSTRUCTION COMPANY, INC. 857 has sustained the burden of establishing affirmatively that doubt of majority was not the reason for the Respondent's refusal to bargain. Contrary to our dissenting colleague, in these circumstances we do not interpret the Serpa "bad-faith" requirement as imposing on the General Counsel a duty to prove more than he has proven here. As the Board's subsequent decision in Aaron Brothers 11 makes clear, the Serpa burden-of-proof rule is designed to assure, in implementation of Board policy, that an employer who in good faith withholds recog- nition because of a doubt of majority, though his doubt is founded on no more than a distrust of cards, may have an election to resolve that doubt, and will not be subject to an 8(a) (5) violation simply because he is unable to substantiate a reasonable basis for his doubt. But Aaron Brothers also makes it apparent that the rule in Serpa is only an evidentiary one which is to read as dovetailing with, rather than altering, the long-settled substantive principle that an employer may not in the absence of good-faith doubt refuse to recognize a majority union. Accepting that principle as still the law, it follows, in the context of the issue before us, that good or bad faith must be tested by the standard of whether the refusal to bargain was, or was not, motivated by such a doubt. This essentially is the formulation of the controlling standard as it has uniformly been declared by the Courts of Appeals for many years.'4 It is true that, with relatively few exceptions, in cases where a bad-faith refusal has been found, the Employer's lack of good-faith doubt has been inferred from independent unfair labor practices aimed at dissipating union support. But as the Board was careful to note in Aaron Brothers, evidence of other unlawful con- duct is not a sine qua non to such a finding. The determination of good faith, or bad-the Board stated-"of necessity must be made in the light of all relevant circumstances" of a given case. We agree in principle with the Serpa rule, and with the policy considerations underlying it, as elaborated in Aaron Brothers. We believe, however, that under the applicable standard the General Counsel satisfied that rule in this case by his affirmative showing that the Respondent's refusal to bargain was not in fact predicated on a doubt of majority but upon an entirely independent, and unsupported, ground, as to which good faith is not available as a defense. We believe that to hold as our dissenting colleague would have us do, would not only do violence to established law, but could not be justified in terms of policy considerations. We can see no purpose in 13 Aaron Brothers Co., 158 NLRB 1077. 14 Among a host of other cases, see, e.g., cases cited in footnote 2, supra. 85S DECISIONS OF NATIONAL LABOR RELATIONS BOARD now requiring the Union to start afresh and proceed via the Section 9(c) (1) election route if it would establish its right to recognition. The sole ground upon which recognition was rejected-the asserted lack of statutory jurisdiction-has already been adjudicated in this proceeding and determined adversely to the Respondent. To require the Union now to go to an election, which at the time of its refusal to bargain the Respondent did not seek, to reestablish a previously demonstrated majority, which the Respondent did not then question, would in our opinion serve to defeat rather than effectuate statutory policy. [The Board adopted the Trial Examiner's Recommended Order, with the following modification : [1. Delete from the last indented paragraph of the attached notice to the Trial Examiner's Decision the words beginning, "except to the extent that such ...."] MEMBER JENKINS, concurring : Respondent's refusal to bargain was not based solely, and perhaps not at all, on its doubt of validity of cards as proof of the Union's majority and a corresponding preference for a prompt and free elec- tion in order to ascertain the employees' desires. Instead, as the facts set out in my colleagues' opinion show, Respondent entertained no doubt that the cards demonstrated a majority but engaged on unten- able grounds in a delay of recognition of the Union, and its "doubt" concerning the validity of the cards was a long-belated afterthought. In such circumstances the General Counsel has sustained his bur- den of proving that Respondent acted in bad faith in refusing to recognize and bargain with the Union. As I noted in Aaron Brothers, this proof is made, and the result follows, without any reference to whether Respondent had a "good faith doubt of the Union's major- ity" at the time it was presented with the cards. It is the other factors which are decisive; even if Respondent somehow could have estab- lished that at the time it received the cards it had such a "good faith doubt," its subsequent conduct would nonetheless have required the same result reached here. To attempt to preserve some substance in the "good faith doubt" concept by arguing that the subsequent conduct necessarily vitiates the "good-faith doubt" if it ever existed is to engage in a word game. Thus, though I agree with the result reached by my colleagues, I would eschew reliance on the presence or absence of a "good faith doubt," for it leads to unnecessary and confusing reasoning. H & W CONSTRUCTION COMPANY, INC. 859 MEMBER ZAGORIA, dissenting : I would not find a violation of Section 8(a) (5) in this case. As I understand the principles set forth in Serpa and Aaron Brothers, the burden of proving unlawful a company's refusal to recognize a union on the basis of a majority card showing rests on the General Counsel, and requires affirmative proof of bad faith on the part of the company. Normally, such proof will consist of the company's commission of unfair labor practices, demonstrating the company's rejection of the collective-bargaining principle and its desire to gain time to dissipate the union's majority. The mere existence of a card majority does not, without more, suffice to require the company to recognize the union or be guilty of an unfair labor practice if the company does not. In this case, the Respondent Company refused to accord recognition to the Union on the basis of a proffered showing of a card majority. The Company committed no unfair labor practices. Nor did the Com- pany agree to a card check or in any manner indicate that it was will- ing to recognize the Union if the latter's card majority were inde- pendently shown to be reliable. Cf. Snow & Sons, supra. Despite the absence of any of the factors normally required to establish an unlaw- ful refusal to bargain, my colleagues find such a violation on the sole basis that the Company advanced the assertion, in good faith, that it was not within the Board's jurisdictional standards. I fully agree that a good-faith assertion of lack of jurisdiction is not, as such, a defense to a refusal-to-bargain allegation. I fail to see, however, how the assertion of such a defense can be said to supply the affirmative proof of bad faith required by Serpa and Aaron Brothers. Suppose, for example, this Respondent had not asserted that the Board lacked jurisdiction, but had merely refused to recognize the Union without saying anything. The Board in those circumstances would unani- mously dismiss an 8(a) (5) complaint. The assertion in good faith of a reason that does not in law amount to a defense, to me requires only that that reason be disregarded. The case then is in the identical pos- ture as Aaron Brothers itself, where a unanimous Board refused to find a violation of Section 8(a) (5). My colleagues believe that requiring the Union to go to an election now when it already had a "demonstrated majority" would defeat statutory policy. This is tantamount to saying that a union with a demonstrated majority of cards must be recognized-a position I thought all my colleagues had already rejected. Furthermore, the Union was perfectly free to file a representative petition at the time and get a speedy determination of its claimed majority status. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed March 26, 1965, by International Union of Operating Engineers, Local 826, AFL-CIO,' herein called the Union or Charging Party, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel and the Board, respectively, by the Regional Director for Region 16 (Fort Worth, Texas), issued its complaint dated May 28, 1965, against H & W Construction Company, Inc., herein called the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) 2 and (5) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charge, complaint and notice of hear- ing thereon were duly served upon Respondent and the Union. Respondent duly filed its answer admitting all the allegations of the complaint except that it denied the jurisdiction of the Board and the allegations relating to the majority representative capacity of the Union. Pursuant to notice a hearing thereon was held at Odessa, Texas, on July 20, 1965, as one of the three almost identical cases heard that day,3 before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by coun- sel, and were afforded full opportunity to be heard, to produce, examine and cross- examine witnesses, and to introduce evidence material and pertinent to the issues. Oral argument at the conclusion of the hearing was waived. Briefs were received from General Counsel and Respondent on August 24, 1965. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT H & W Construction Company, Inc., is now and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its principal office and place of business at Odessa, Texas, where it is now and has been at all times material herein engaged in oil field exca- vating and earth work operations related to oil field construction work and the con- struction of access roads over leased land to drilling sites as well as to producing oil wells. During the calendar year of 1964 which period is representative of all times material herein, in the course and conduct of its business operations, Respond- ent performed services valued in excess of $50,000 for Gulf Oil Corporation, Mid- land, Texas, Production District, which enterprise, in turn, produced and shipped goods valued in excess of $50,000 directly to points outside the State of Texas .4 It is clear that Respondent's operations on behalf of Gulf, particularly in the con- struction of access roads to and from drilling sites and producing wells, was a necessary and integral part of Gulf's interstate operations, and, thus affects com- merce within the meaning of the Acts I so find. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 826, AFL-CIO, is a labor organization admitting to membership employees of Respondent. 1 This charge was over the written signature "Frank Parker" followed by the initials "W. G." It was stipulated at the hearing that this signature was not placed thereon by Frank Parker personally but by his authorized agent. Respondent contends that this voids the charge. This contention is without merit. Walsh-Lumpl in Wholesale Drug Co., 129 NLRB 294. 2 No allegation of interference, restraint, or coercion independent of the refusal to bargain by Respondent was contained in the complaint nor evidence thereof presented at the hearing. $ The other cases were: Weaver, Inc., Case 16-CA-2305 ; and L. C. Younger Construc- tion Co., Inc., Case 16-CA-2297. The Union was involved in all three cases. +Respondent denies that all such shipments by Gulf were produced at locations on which Respondent performed services. 5N.L.R.B. v. C. H. Croaa d/b/a Cross Poultry Co., 346 F.2d 165 (C.A. 4) ; N.L.R.B. v. Reliance Fuel Oil Co, 371 U.S. 224; Montex Drilling Co, 122 NLRB 139. H & W CONSTRUCTION COMPANY, INC. 861 III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit The complaint alleged, the answer admitted, and I find that: All employees of Respondent excluding office clerical employees, guards, supervisors, administrative and professional employees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. It is also admitted that on February 11 and March 19, 1965, the same five employees comprised the said appropriate unit. 2. The request The complaint alleged, the answer admitted, and I find that: Commencing on or about February 11, 1965, and continuing to date and more particularly on February 11 and 16, 1965, the Union requested and is requesting Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive collective-bargaining representative of all employees of Respondent in the aforede- scribed appropriate unit. 3. The refusal Although denied in its answer, Respondent at the hearing acknowledged that it had in fact refused to bargain with the Union on the aforementioned dates on the ground that it claimed to have a "good-faith doubt" as to the Union's majority status in the appropriate unit . This latter question will be discussed in the next sec- tion of this Decision. 4. The majority By February 11, 1965, five of Respondent's five employees employed in the appro- priate unit had signed cards applying for membership in the Union and containing the following unequivocal authorization reading as follows: I ... hereby authorize the International Union of Operating Engineers affili- ated with the American Federation of Labor to represent me and, in my behalf, for the purposes of collective bargaining to negotiate and conclude all agree- ments in respect to rates of pay, wages, and hours of employment or other conditions of employment in accordance with the provisions of the National Labor Relations Act. The full power and authority to act for the undersigned as described herein supersedes any power or authority heretofore given to any person, or organiza- tion to represent me and shall remain in full force in effect for 1 year from date and thereafter, subject to thirty (30) days written notice of my desire to withdraw such power and authority to act for me and in the manner referred to herein. These same five individuals were still employed by Respondent on and after March 19, 1965. Due to Respondent's claim of a "good-faith doubt" as to the Union's majority status based on the contention, as stated in its answer, "that, because of the methods used by the Union in its organization efforts, the Union has made the uninhibited desires of employees impossible and has prevented the laboratory conditions of free choice as required by the Act (and interpretations thereof) and the intent of Con- gress. These and other reasons have and do constitute good-faith doubt on the part of Respondent that the Union has ever truly represented a majority of the employ- ees," it is necessary to set forth the facts in some detail. About 3 p.m. on February 11, 1965, the Union Business Representative Thomas L. Booth met with V. L. Wilson, Respondent's president, in Respondent's office. Booth informed Wilson that the Union was requesting recognition and bargaining with Respondent as the majority representative of Respondent's employees in the aforedescribed appropriate unit which Booth read from a pad which he had in front of him. Booth then placed the union cards signed by all five of Respondent's employees in said unit upon the table requesting that Wilson check them to satisfy himself that the Union did represent a majority of his employees in the appropriate 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit. After looking at the cards, Wilson agreed that a majority had signed.6 After some discussion of the problems, Wilson stated that his partner, Respondent's vice president, C. L. Holley, was out of town but that Wilson would discuss the matter with Holley upon his return and contact Booth. Under date of February 16, 1965, Booth wrote Respondent confirming the fact of the meeting of February 11, and setting forth the facts as found above. Under date of March 19, 1965, and over the signature of C. L. Holley as Respond- ent's vice president, Respondent notified the Union as follows: We do not recognize the Operating Engineers as bargaining agent for our employees. We do not believe we are engaged in interstate commerce and are therefore not covered by the National Labor Relations Act.7 On March 26, 1965, the Union filed the charge in the instant matter. B. Conclusions The general law applicable to the present case was well stated, and cited with approval subsequently in numerous Board and court decisions, in N.L.R.B. v. Phila- mon Laboratories, Inc., 298 F.2d 176, 179 (C.A. 2), as follows: The act imposes a duty to bargain in good faith upon request whenever a labor organization has been designated by a majority of employees in an appro- priate bargaining unit. The employer must recognize and bargain with such an organization whether or not it has been certified by the Labor Board. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 76 S.C. 559, 100 L.Ed. 941 (1956); N.L.R.B. v. Sunrise Lumber & Trim Corp., 241 F.2d 620 (2 Cir., 1957), cert. denied 355 U.S. 818, 78 S.C. 22, 2 L.Ed. 2d 34 (1957). To be sure, an employer laboring under a good faith doubt as to a Union's majority status need not extend recognition. Nevertheless, in the absence of such a doubt, the employer has no vested right to an election. N.L.R.B. v. Trimfit of California, 211 F.2d 206 (9 Cir., 1954).8 4t the time of the Union's demand for recognition and bargaining on Febru- ary 11, 1965, Respondent was requested to, and did, inspect union authorization and application cards executed by each of its five employees in the acknowledged appropriate bargaining unit. At that time Respondent admitted, and at the hearing stipulated, that the signatures thereon were authentic and genuine. The signed authorizations to the Union to bargain on behalf of the signatory employees was clear, unambiguous, and unequivocal. Yet with this evidence before it, Respondent here claims to have had a "good-faith doubt" as to the Union's majority status, a claim it first made in its answer to the complaint but was not mentioned in its letter to the Union denying recognition. In its brief under the heading Employer's Good Faith Doubt, Respondent argues this point as follows: The union representative represented to Respondent's employees that all of the contractors were going to be propositioned at one time and that there would have to be all of the contractors before they could do any good. This the Union did not do. Thus, the cards were signed on a conditional basis, which condition was not met. Therefore, the cards were of no force or effect at or since the time the Union requested that Respondent bargain with it. Under the conditional basis of the signing, the Respondent was justified in doubting that the Union had an uncoerced majority. Employer's refusal to bargain was based on its good faith doubt of the Union's majority as revealed by its investigation. At no time has the General Counsel or the Union attempted to refute the findings of the Respondent's investigation. Respondent doubted the majority on March 18 [sic], 1965, and at the time of the hearing. 6In his testimony Wilson testified that he only saw the signatures of two of the em- ployees However, the authenticity of the signatures on these five cards was stipulated at the hearing. 7It is to be noted that Respondent at this time made no mention of any doubt as to the Union's majority status. B See also Snow & Sons, 134 NLRB 709, enfd. 308 F 2d 687 (C.A. 9) Elliott-Williams Co., Inc., 143 NLRB 811, enfd. 345 F.2d 460 (C.A. 7). The Colson Corporation, 148 NLRB 827, enfd. 347 F.2d 128 (C.A. 8). H & W CONSTRUCTION COMPANY, INC. 863 Thus is raised the question of what constitutes an employer's "good-faith doubt" and how it is to be proved. The burden of going forward with proof of the defense of a "good-faith doubt" is, of course, upon Respondent, To prove such a defense Respondent must present a substantial basis of believable evidence which would lead reasonably to the con- clusion which Respondent claims would be reached .9 Otherwise we would reach the absurd result that an employer's naked statement that he had a "good-faith doubt" would be unassailable. This case is even weaker, if possible, than the Weaver and Younger cases 10 because the only testimony we have here is that of Wilson as follows: Well, we [Booth and Wilson] discussed this, you know, whether it would be a few. contractors or the whole Permian Basin, and Mr. Booth told me that it would be the whole Permian Basin that would be in on this. Well, then I checked up with some of them, and I found out it was not, so I didn't feel like, you know-well, we're just a small outfit and I didn't feel like you know, that we would be justified in going ahead and bargaining. When I asked why he felt that the Union did not represent a majority of his employees, Wilson answered: Well, why I feel that way is because. I think they were misrepresented in the whole thing. That is what I think. "They actually didn't say-in other words, there's two sides to this story, and they just saw one side of it, you see. We had never: discussed it with them; you, know, on' our side. - It is to be noted that no employee of' Respondent testified. Hence, contrary to Respondent's brief, there is in this record, no competent, probative evidence that the Union made any such representation to the employees or that, even if made, such representation induced any employee to sign. No employee withdrew or repudiated his authorization to the Union. Representations made to the Employer could not, and would not, induce any employee to sign a union authorization card. Respondent's contention here is that the alleged statement about negotiating with all the dirt contractors in the Permian Basin was a material "misrepresentation" or "coercion" which voided the validly executed cards is without merit as this Trial Examiner has already found in the Wheeler and the Younger cases.ii Respondent' has admitted that the single employer's unit is an appropriate unit. There is nothing in the Act which requires a union to organize all similar employ- ers nationally or even regionally prior to bargaining with an employer where a majority of the employees had authorized the Union to do so. In" fact most national employer organizations oppose anything but the single-employer unit. A "good-faith" doubt must be based upon facts which would cause a reasonable man for good cause to question the evidence before him. The evidence here shows that the Respondent's "investigation " produced' the fact that these authorization cards had been authentically signed by the employees but not even one iota of evidence that any employee had been induced by false representations or "coercion" to execute such authorizations and not even a suggestion that one employee even desired to repudiate or withdraw such executed authorization. 12 Under these cir- cumstances no reasonable man could have any doubt-much less a good-faith. doubt-that the Union did in fact represent the majority of its employees in the appropriate unit.. 0 See Laystrom Manufacturing Co , 151 NLRB 1482, and cases there cited 10 See supra "As noted supra, at least 2 other of the 30 to 37 dirt contractors in the Permian Basin were approached on the question of recognition as was Respondent here 12 This last distinguishes this case, from N L R B. v. The Great Atlantic d Pacific Tea Company, Inc., 346 F 2d 936, (C.A. 5), where the court finds reasonable cause for Respond- ent's doubt because one employee did in fact withdraw from the Union. If, as the court says, this withdrawal proves the reasonableness of the Respondent 's doubt, then by a parity of reasoning the absence of any such withdrawals or even any suggestion of em= ployee dissatisfaction over their union affiliation or authorization would indicate the unreasonableness of the alleged doubt. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later being pressed by Respondent's Attorney Wilson explained his "good-faith doubt" as follows: Well, I actually believe that on one side there was. In other words, what I am trying to say is that I believe they were represented through that one channel there. In other words, we never had talked to them about our side of it. In other words, like I said a while ago, we're not able to-we're poor boys. That's what I'm talking about. And, like I told him, there is two sides to the story on it. Wilson explained further: Well, because they [the employees] felt like at that time that the majority of the whole Permian Basin was going-well, that, in other words, it would be like what you would call a co-op, and that they would go together. But they found out different now, and I think, therefore, they won't go in. They've found out that it isn't, and that's it. If these answers mean anything, they mean, as Respondent also contends in its brief, that Respondent wanted further time in which to convince their employees not to engage in collective bargaining and, in addition, Respondent desired a Board- conducted election with the hope that by the time that election could be conducted Respondent would have been able to convince its employees to vote against the Union and thus repudiate their already signed authorization cards. Such subjective feelings on the part of an employer do not constitute the basis for "a good-faith doubt" N.L.R.B. v. Economy Food Center, Inc., 333 F.2d 486, 472 (C.A. 7). Wishful thinking does not constitute a good-faith doubt. Accordingly, I must find, and hereby do, that no reasonable man could have had any good-faith doubt as to the Union's majority status under the circum- stances of this case and, in fact, neither did this Respondent. However the law is now well settled that the Employer's refusal to recognize and bargain with the Union on a card showing such as occurred in the instant case and in the absence of a reasonable doubt as to the majority status of the Union as here constitutes a refusal to bargain in violation of Section 8(a)(1)•and (5) of the Act. I so find.I3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, 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 of commerce. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. - It having been found that Respondent has refused to bargain collectively with the Union as the exclusive bargaining representative of the majority of Respond- ent's employees in an appropriate unit, I will recommend that, upon request, Respondent bargain in good faith with the Union as such representative and embody any agreements reached into a written signed document. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. H & W Construction Company, Inc., is, and at all times material herein has been, an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By refusing to bargain collectively with International Union of Operating Engineers, Local 826, AFL-CIO, as the exclusive representative of Respondent's 13 Among the 15 reasons cited by Respondent in its motion to dismiss the complaint herein, a majority involved constitutional or jurisdictional questions which were essen- tially decided by the Supreme Court in affirming the constitutionality of the Wagner Act and will not, therefore be further discussed here. H & W CONSTRUCTION COMPANY, INC. 865, employees in the appropriate unit noted below, Respondent has engaged in and is- engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) : All employees of Respondent excluding office clerical employees, guards, super- visors, administrative and professional employees as defined in the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER -Upon the basis of the foregoing findings of fact, and conclusions of law, and upon the entire record in this case, I recommend that H & W Construction Com- pany, Inc., Odessa, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to recognize and bargain collectively in good faith with International Union of Operating Engineers, Local 826, AFL-CIO, concerning wages, rates of pay, hours, and other terms and conditions of employment, as the exclusive representative of all its employees in the following appropriate unit: All employees of Respondent excluding office clerical employees, guards, super- visors, administrative and professional employees as defined in the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: - - (a) Upon request, bargain collectively in good faith with International Union of Operating Engineers, Local 826, AFL-CIO, as the recognized exclusive bar- gaining representative of all its employees in the appropriate unit found above and embody in a written signed document all understandings reached. (b) Post at its plant in Odessa, Texas, copies of the attached notice marked "Appendix A." 14 Copies.of said notice, to be furnished by the Regional Director for. Region 16, upon being duly 'signed by Respondent's Representatives, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of receipt of this Decision, what steps have been taken to comply with the foregoing recommendations.15 I FURTHER RECOMMEND that unless within 20 days from the date of the receipt of this Decision, Respondent does not notify the said Regional Director that it will- comply with the foregoing Recommendations, the Board order and issue an order requiring the Respondent to take the aforesaid action. 14 In the event that this Recommended Order Is adopted by, the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Thal Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 15 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively with International Union of Operating Engineers, Local 826, AFL-CIO, as the exclusive representative of all our employees in the following appropriate unit: All our employees excluding office clerical employees, guards, supervisors, administrative and professional employees as defined in the Act. 264-188-67-vol. 161-56 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL embody in a signed written document any and all agreements reached with the said International Union of Operating Engineers, Local 826, AFL-CIO. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union of Operating Engi- neers, Local 826, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named or in any other labor organization. H & W CONSTRUCTION COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele- phone Edison 5-4211. Korn Industries, Inc. and United Furniture Workers of America, AFL-CIO. Cases 11-CA-2870 and 2884. November 14, 1966 DECISION AND ORDER On April 19, 1966, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and adopts the findings of the Trial Examiner only to the extent consistent herewith. 161 NLRB No. 65.