T. M. Duche Nut Co., Inc.

T. M. DUCHE NUT CO., INC. T. M. Duche Nut Co., Inc. and Construction and General Laborers Union , Local 185, AFL-CIO T. M. Duche Nut Co., Inc. and Construction and General Laborers Union , Local 185, AFL-CIO, Petitioner. Cases 20-CA-4537 and 20-RC-7414 February 12, 1969 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION 13Y CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On May 6, 1968 , Trial Examiner Allen Sinsheimer, Jr., issued his Decision in the above-entitled cases, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner' s Decision . He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed . Finally, he found that the Union's objections to the election in Case 20-RC-7414 were valid and recommended setting the election aside. Thereafter, Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed an answering brief. 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 these cases to a three-member panel. 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 , the briefs, and the entire record in these cases, and finds merit in Respondent' s exceptions. Accordingly , the Board adopts the findings . conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found that Respondent coerced and restrained employees in violation of Section 8(a)(1) by Assistant Plant Superintendent Alfred Stokes' preelection statement to employee Violet Warmack, and by President Howard O'Neill' s preelection speeches to employees. He further found that, in refusing to bargain with the Union without an election , Respondent was not acting in good faith and therefore violated Section 8(a)(5) of the Act. Respondent contends that Stokes' and O'Neill's statements were not coercive and that its refusal to bargain with the Union without an election was not unlawful. 457 1. Except for O'Neill's speeches to employees and Stokes' conversation with employee Warmack, the Trial Examiner found that Respondent had not committed any other unfair labor practices. One or 2 days before the election, President O'Neill made seven substantially identical speeches to separate groups of employees varying from 10 to 17 in number. A synthesis of the significant testimony credited by the Trial Examiner shows that O'Neill first told the employees that he did not intend to make any threats or promises. He then discussed the employees' and Company's economic position. He mentioned the unemployment benefits enjoyed by seasonal employees, saying that this benefit amounted to $90,000 for the previous season, that this was_ nearly $1 an hour added to their income which was tax free, and that the Company was paying as much as it could. He referred to other nut companies operating a_ single shift year-round which gave employees health benefits that the Company's seasonal employees did not receive and said that the Company had showed a loss the previous year, and that 60 percent of its costs went for labor. He also said that if Respondent were forced to give health and other benefits it could not afford, it would have to alter its operations so as to have one shift on a year-round basis. He reminded employees of benefits the Company had given in recent years including salary increases, Thanksgiving and Christmas gifts, paid holidays, and free coffee. When employees questioned him about what would happen to the night shift in the event of a change in operation, O'Neill answered that this would probably be eliminated; that the reduction in the work force would be accomplished by retaining the best employees from every shift. O'Neill also stated that while the law required bargaining in good faith, he was under no obligation to accept the Union's demands, that he would be hardnosed about bargaining, that he would have to meet with the Union, but that no one could force him to agree to or accept the Union's demands. O'Neill made further statements, apparently in answer to questions about rumors of a strike. They were that should there be a strike, the Company would continue operating; that even if 60 percent of the employees struck, the Company could operate with replacements, and that it had three telephone calls by applicants for every job. Employee Warmack testified that about a week before the election, she asked Assistant Plant Superintendent Stokes "when we were going to be through work. I told him I was anxious to go campaigning..... He said he wasn't sure when we would finish, and I told him I had heard that they was going to have to work year-round if we went union. . ..." According to Warmack, Stokes then said, "Yes, this was the only way they could make it pay is to go year-round basis. . . . ... They then discussed the employees' seniority, Warmack asking how long her mother had worked and Stokes 174 NLRB No. 72 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acknowledging that there would be some layoffs if the Company were forced to change its method of operation. The Trial Examiner found that O'Neill and Stokes threatened employees by remarks which, in summary, were that if the employees selected the Union, the Company would go to a year-round one-shift operation, thereby reducing jobs and benefits. He found that O'Neill made clear that if employees selected the Union, the Company would not bargain and employees might lose their jobs. He further found that O'Neill's statements about the Company's ability to operate with replacements in the event of a strike, while not alleged to be violative of the Act, threatened the inevitability of a strike and, when considered in combination with testimony as to a possible change to a one shift operation, threatened job loss by replacement. We do not accept the Trial Examiner's evaluation of O'Neill's and Stokes' statements to employees. We note, first, that the Trial Examiner dismissed other allegations that Respondent had committed unfair labor practices. O'Neill's speeches and Stokes' statement must therefore be appraised against a background free of unfair labor practices. O'Neill's speeches appear to represent a reasoned, non-inflammatory attempt to explain the difficult economic condition in which the Company was placed, its already heavy costs and benefits paid to employees, and the necessity it would be under to change its method of operation if it were forced to further increase its costs by paying the additional benefits which the Union was demanding. An employer is not precluded from conveying to its employees the possible adverse economic consequences that might be expected if its business costs are increased, provided this is done in a noncoercive manner.' Such expressions constitute permissible predictions of the possible economic consequences of increased costs rather than threats of reprisal to force employees into abandoning the union.' Nor do we consider the above statements of O'Neill coercive when considered together with the expressed intention to operate with replacements in the event of a strike. Such expressed intention is not an unfair labor practice;3 in fact, the complaint contained no such allegation, and it cannot convert O'Neill's other statements about economic consequences into unlawful coercive threats, as the Trial Examiner implied. We also find, contrary to the Trial Examiner, that O'Neill's statement about being a hard bargainer and not yielding to the Union's bargaining demands was not in context coercive within the meaning of Section 8(a)(1) of the Act.4 'Wagner Industrial Products Company, Inc., 170 NLRB No 157, TRW Electronic Component Division , TRW, Inc., 169 NLRB No. 6 2Id 'Skirvin Hotel and Skirvin Towers, 142 NLRB 761, 764. "Eagle-Picher Industries , Inc, 171 NLRB No. 44 (TXD) Finally, we do not adopt the Trial Examiner's finding that Stokes' answer to employee Warmack's query about the truth of a rumor she had heard "that they was going to have to work year-round if we went union" constituted a threat of reprisal in violation of Section 8(a)(1). Stokes' reply, according to Warmack, was "that this was the only way they could make it pay." Whatever the meaning that might be attributed to Stokes' answer to Warmack standing alone, it was clarified by O'Neill's subsequent speeches to employees in which he said that if the Company were forced to increase it costs it might have to change to a year-round operation. The employees could therefore have only understood Stokes' remarks as being similar to that of O'Neill's i.e., if costs were increased, operations might have to be changed to compensate for the cost increases. For the reason we have found O'Neill's more explicit statement not unlawful, we find Stokes' statement similarly not unlawful. 2. The Trial Examiner found that Respondent in bad faith refused to bargain with the Union without an election, basing the bad-faith finding on the unfair labor practices which he found Respondent had committed. However, we have not adopted the Trial Examiner's finding of 8(a)(1) violations, and we are not persuaded that the record as a whole otherwise justifies a finding that Respondent did not have a good-faith doubt of majority and in bad faith refused the Union's request for recognition and bargaining. Accordingly, we shall dismiss the 8(a)(5) allegation of the complaint.5 3. The hearing on the Union's objections to the election was consolidated with the unfair labor practice case because the objections were based on the same conduct which the complaint alleged were unfair labor practices. Based on his finding that Respondent had unlawfully threatened to change its method of operation if the employees selected the Union as their representative, the Trial Examiner sustained the objections and recommended that the election be set aside. As we have found contrary to the Trial Examiner, that Respondent's statements alleged to be objectionable were not coercive, we hereby overrule the objections to the election based on the same statements. We shall also certify the results of the election which establish that a majority of the valid votes were not cast for the Union. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is dismissed. 'The Trial Examiner recommended in the alternative that a bargaining order issue to remedy the 8 (a)(1) violations which he found As we have overruled the Trial Examiner's findings of violations , we need not consider this remedy recommendation T. M. DUCHE NUT CO., INC. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of valid ballots has not been cast for Construction and General Laborers Union, Local 185, AFL- CIO, in the election held herein , and that said Union is not the exclusive representative of the employees in the unit found appropriate within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER BROWN, dissenting: Like the Trial Examiner , I would find that Respondent violated Section 8(a)(1) and (5) of the Act and would sustain the objection to the election in Case 20-RC-7414. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Trial Examiner: This consolidated proceeding was heard at Redding, California, on October 17-19, 1967. The representation proceeding in Case 20-RC-7414 was initiated by a petition filed by the Union on February 21, 1967; it was followed by Stipulation for Certification Upon Consent Election approved March 7, 1967; and then by an election on March 17, 1967, which the Union lost,' and to which the Union filed timely objections The complaint2 in Case 20-CA-4537 issued on August 9, 1967. On August 9 the Acting Regional Director for Region 20 issued a report on objections and order consolidating cases for the purpose of hearing before a Trial Examiner and a Notice of Hearing of the consolidated cases.3 The Acting Regional Director specifically found that Objection No. 2 filed by Petitioner raised substantial and material issues of fact which should be resolved before a Trial Examiner and involved some of the same conduct alleged to be unfair labor practices in Case 20-CA-4537. Objection No. 2 was set forth as follows: "2. Management's threat to discontinue swing shift if employees voted Union, thereby creating considerable loss of jobs contrary to Act." The questions presented are: (1) Did the Union represent a majority in an approproprial.e unit? (2) Did Respondent engage in conduct which should result in setting aside the aforesaid election? (3) Did Respondent, by refusing to recognize the Union, and its subsequent conduct and activities, violate Section 8(a)(1) and (5) of the Act? (4) If so what should the remedy be? Upon the entire record, including my observation of the witnesses and after due consideration of the briefs of the General Counsel and Respondent Employer, I make the following:4 'The tally of ballots shows 47 votes cast for the Union, and 68 against. 'An original charge was filed on May 18, 1967, and a first amended charge on July 27, 1967 'The actions of the Regional Director directing a hearing on the aforesaid objections and his order consolidating cases were affirmed by the Board on September 27, 1967. 'The General Counsel and Respondent Employer have each filed separate motions to correct the transcript of the hearing in certain respects No opposition thereto has been filed . I have carefully examined the requested corrections and conclude that in each instance the requested correction should be made The corrections requested by both the General FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT 459 Respondent is a California corporation engaged in the processing and wholesale sale of nuts with its principal place of business in Orland, California. During the calendar year preceding the issuance of the complaint, the Respondent sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of California. Respondent 'admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and I further find that the assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and I find that Construction and General Laborers Union , Local 185, AFL-CIO (herein called "the Union") is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction On about January 13, 1967, the Union commenced organizational activities among employees of the Respondent. On January 24, 1967, the Union wrote to Respondent advising that "many of your employees have indicated an intent in authorizing our Local Union to represent them for purposes of collective bargaining " It also referred to employees rights to organize and Federal law prohibitions against interference, restraint, or coercion of employees in exercising such rights as well as prohibition of employer discrimination in hiring or employment to discourage or encourage membership in a labor organization. It concluded that if any conduct constituting an unfair labor practice came to its attention, the Union would bring the matter to the attention of the NLRB. Subsequently on February 6, 1967, the Union wrote Respondent as follows: Please be advised that Local Union 185, of the Construction and General Laborers, represents a majority of your employees. We have obtained authorization cards from a majority of the employees employed by your firm in a unit that is appropriate for purposes of collective bargaining. We are requesting immediate recognition of Local 185 as the Collective Bargaining Agent of your employees for the purposes of negotiating an agreement for wages, hours and working conditions. We are available to meet with representatives of your Company at a mutually convenient time and place, in order to negotiate and discuss the terms and conditions of a collective bargaining agreement. In the event you have any doubt as to whether our Union represents a majority of your employees, we are willing to have an independent third party check our authorization cards, signed by your employees, against your personnel records. Counsel and the Respondent Employer are accordingly hereby granted and set forth in Appendix "A" attached hereto and made a part hereof. [Omitted from publication I 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The State of California has a conciliation service, which provides conciliators, who are fair and equally acceptable to labor and management. Upon contact, a member of the State Conciliation Service will perform this card check and advise you as to whether we do represent a majority of your employees if such is your desire. We would appreciate an early reply on this matter. On February 21, 1967, Respondent replied by letter as follows: This will acknowledge your letters of January 24, 1967, and February 6, 1967. Please be advised that T. M. Duche Nut Co., Inc., will recognize Local Union 185 as the bargaining representative of its employees when Local 185 has been certified as such by the National Labor Relations Board following a secret election.' The same day, February 21, the Union filed the representation petition in Case 20-RC-7416. B. The Principal Issues 1. Did the Union represent a majority in an appropriate unit on and after February 7 the day after its letter of February 6 was sent and the date alleged in the complaint? 2. Did Respondent engage in unfair labor practices requiring the election be set aside? 3. Did Respondent engage in conduct or activities which were such unfair labor practices as to require a finding of violations of Section 8(a)(1) and (5) and a remedy of an order to recognize and bargain with the Union in the event it represented a majority in an appropriate unit? The authorization cards were all in the following form AUTHORIZATION FOR REPRESENTATION UNDER THE NATIONAL LABOR RELATIONS ACT I, the undersigned, employee, of the (Print full name of Company) Employed as (Print your occupation or a description of your job) at (City) (State) (Location of Project) hereby authorize Local Union, No of the affiliated with the AFL-CIO, to represent me and, in my behalf, to negotiate and conclude all agreements as to, hours of labor, wages and other employment conditions in accordance with the provisions of the National Labor Relations Act of July 5, 1935, as amended by the Labor-Management Act of 1947. The full power and authority to act for the undersigned as described herein supersedes any power or authority heretofore given to any person or organization to represent me, and shall remain in full force and effect for one 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 in the matters referred to herein.9 Date (Signature of Employee) (Home address) 1. The majority issue' The Stipulation for Certification upon Consent Election provided (and the parties agreed) that the following unit was appropriate: All production and maintenance employees of the Employer at its processing plant at Orland, California excluding office clerical employees, guards and supervisors as defined in the Act. It was further stipulated that there were a total of 116 eligible persons in said unit at times material herein. A majority accordingly is 59. The General Counsel submitted in evidence 69 signed' authorization cards. The circumstances surrounding the signing and obtaining of the cards will be considered hereafter.8 'Howard O'Neill, president of Respondent, credibly testified that he was absent from his office when the letter of February 6 was received and did not return until February 18 or 19 after which he consulted counsel and dictated the letter of February 21 which was mailed that afternoon. 'Some of the matters considered herein with respect to the majority issue, alleged unfair labor practices and ultimate remedy are in certain respects highly controversial and have resulted at times in varying views or positions among the courts, the Board; law review writers and other commentators Inasmuch as it is Board policy to require Trial Examiners to adhere to Board decisions until changed by it or the Supreme Court, I shall be governed by Board decisions where applicable. See Iowa Beef Packers, 144 NLRB 615, 616 'One, that of Margarita Dominguez was admittedly signed by her husband under circumstances described hereafter 'This included testimony as to what was said in connection with the signing of an authorization card, the circumstances surrounding the signing, and in some instances where material statements or representations of the solicitor were vague or ambiguous testimony as to Attached hereto and made •a part hereof as Appendix B is a. list of the signed authorization cards in evidence and by whom solicited (originally submitted by the General Counsel as part of his brief) which has been checked and corrected by me so as to accurately reflect the record. Reference thereto will accordingly be made from time to time hereafter. Of the 69 cards introduced by the General Counsel, he contends that "58 authorization cards- were introduced by the uncontradicted testimony of the Union representative or an employee who solicited the card" and "There is no evidence that any improper statements were made by these solicitors and the cards must therefore be accepted." Were the matter quite that simple all that would presumably be necessary would be to find one other valid card to establish a majority and ignore the remainder. However, the Respondent contends . . many of the employees who signed the cards did not contemplate giving to the Union their bargaining rights but signed the the understanding of the signers 'I note that the last paragraph of this card set forth above is the same as that which the Court of Appeals for the First Circuit in N L.R B. v Southbridge Sheet Metal Works, Inc., 380, U.S. 851, found to be an illegal restriction (stating that the Board so conceded ) and strongly disapproved of it as improperly restricting an employee' s right of withdrawal after signing . However, the Court also pointed out that the record did not show that the clause had the slightest effect. It concluded "Under the circumstances we do not think that Respondent has met its burden of showing that employees underwent a change of mind or were prohibited from manifesting it." The same conclusion is applicable herein as there is no evidence of any effect therefrom. T. M. DUCHE NUT CO., INC. cards after being told by Union organizers that the signing was for purposes other than representation "10 Respondent after analyzing testimony of certain witnesses in its brief also contends: "We think it a fair inference that if the witnesses mentioned above were advised as they testified they were advised, then such tactics must have been uniformly followed, and this manifestly destroys any claim that the Union represented a majority of Respondent's employees." I interpret this as well as other contentions of Respondent to amount to a claim that such a pattern of improper conduct, assertions, or representations occurred as to invalidate a union majority in any event. In addition it should be noted that testimony as to the signing of cards, the circumstances thereof and representations relative thereto directly or indirectly involved more persons than the eleven referred to by the General Counsel. Also as will appear hereafter, the General Counsel and Respondent differ as to what was said to certain persons who signed cards and as to the impact or effect thereof. Accordingly, I shall consider record testimony relative to the card signing by the 69 persons whose cards are in evidence with particular reference to contentions as to specific invalidity as well as of general invalidity asserted by Respondent. Hugh Cowan, assistant business representative of the Union, testified that on January 13, 1967, he was contacted by a Robert Hodge, an employee of Respondent, and met with Hodge and employee Kenneth Stokes in Orland. He talked to them and explained that if they were interested in having union representation "it would be necessary for the Union to obtain a majority of cards of the employees at the Duche Nut Company." Cowan was then asked "What do you mean by cards?" He replied: "These were the authorization cards, and if we obtained a majority of these cards we could then contact the company and ask them, after we have stated that we do have the majority, that we would like to sit down and negotiate an agreement or talk along those lines." Cowan testified that subsequently on January 21, he and another union representative, William Brickell, met with some twelve employees of Respondent at the B & B Cafe in Hamilton City (rather than Orland). According to Cowan, the following employees of Respondent were present. Robert Hodge, Hurshell Hodge, William Holmes, Burley Headly, Ed Bayless, Everett Button, Michael Utter, Thomas Utter, Kenneth Stokes, Dale Standridge, Gail (Gale?)" Wells, and Jerry Phillips. Cowan stated that all employees present signed a card at that time. Eight of these twelve were offered and received in evidence.' 2 Cowan testified that the cards were signed in his presence by the person whose name appeared on the card, that the men were afforded about 10 minutes to read the card, and he observed them looking at the cards. Cowan also solicited and obtained the cards of Mary Lou Castillo, Violet Warmack, George Embrey, Ivan Leach, George Stokes, Anne Conlee, Roma Croft, and Margarita "Whether such was the case and whether if so under Board decisions the particular card should be invalidated will be considered post "Transcript spelling is Gail but GC 5 list of employees has a Gale Wells "Supt Plant Maintenance " "The cards of Kenneth Stokes, Gail (Gale?) Wells and Dale Standridge were not offered in evidence - Standridge, Stokes and Wells were crossed off the list of employees in evidence (as GC Exh.5) apparently as supervisors. The card of B H. Headly was identified and offered but ruling was reserved and the card subsequently withdrawn as Headly was not employed on February 7 461 Audelo. Cowan, in conjunction with employee William Holmes, also obtained cards signed by Ragna Dobratz, Amy Oltjinbruns, Consuelo Dominguez and one (in evidence) signed for Margarita Dominguez by Consuelo Dominguez discussed post 13 According to Cowan, he saw Mary Lou Castillo on the morning of January 27 and "I explained to her again that my reason for coming was to talk to her about the organizing of the employees and explained to her that it was necessary for us to get a majority in order to be able to approach the company and ask for recognition and perhaps get an agreement and I gave her a card, an authorization card.. . Cowan testified in similar vein as to what he told other card signers. He said he (and Union Representative William Brickell) told Violet Warmack (who in turn solicited other signers): "We talked to Mrs. Warmack in regard to that we were endeavoring to organize the employees of the Duche Company, and we explained to her what was necessary to do this, such as signing the authorization cards and a majority, and then approaching the company and asking to be recognized and perhaps sit down and make an agreement.'91 4 Cowan was asked on cross-examination if he mentioned anything about an election. He replied that from time to time an election was mentioned by people he spoke to, who knew about a prior election at Duche 'and asked if there would be another. Cowan testified: "I said at this time I didn't know, that we were only seeking authorization so that we may approach the Company and ask for recognition." He was asked, "Did you ever say that you wanted these cards so you could have an election?" Cowan answered "No, sir, I didn't." Cowan also denied telling anybody, "If enough of you sign cards we can have an election." Cowan also stated he did not tell anyone that the reason he wanted them to sign cards was so they would be protected if the Company took disciplinary action. In response to a question from the Trial Examiner, whether anyone asked with respect to the authorization card, "What is it for?" and "What does it mean?" Cowan testified that something like that was asked and that he explained: "This is the authorization card, that I have been explaining to you" or "This is the card that I have been telling about that gives you [sic, "us"?] the authorization to speak for you or to approach the company on this majority that we are seeking." Violet Warmack, as set forth above, an employee of Duche also signed a card upon Cowan's solicitation on January 27. Warmack testified that employees Joy Brumaugh, Alice Larsen and Frances Simpson signed authorization cards in her presence on January 31. On cross-examination she testified: Q. When you signed up the three individuals that you did sign up, did you tell them that there might be an election A. No. 13In addition to these cards which were received in evidence, Cowan obtained cards from, among others, Mary Garcia which was not offered because signed February II after the demand. "Cowan testified specifically as to similar statements to Ann Conlee and Amy Oltlinbruns. His testimony as to a specific conversation with Roma Cross was that he explained to her that we were seeking authorization cards from the majority of the employees at the Duche Company" He told Margarita Audelo " .. that we were endeavoring to organize the employees of the Duche Company , that it was necessary, of course , to have a majority, ..." 1 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q Did you say anything at all about an election? A. My exact words were when I told them, to the best I can remember, I told them that these cards authorized the union - authorized the union to approach the plant and try to bargain for us as our representatives, but if the plant wouldn't come to an agreement or bargain with them, then they would go to an election Warmack then testified: Q. Let me read to you from your affidavit which you gave to Mr. Engler, 1967, April 11, the next to the last paragraph on page 2: "I signed a union card on January 27, 1967. Mr. Cowan of Local 185 was present when I signed the card I was told that if the union could get enough signers they could present the card to the company and they then could negotiate with the company for the employees." Now, did Mr. Cowan tell you that? A. Yes. Q. Continuing reading. "If the company did not accept the union, then there could be an election." Mr. Cowan told you that, didn't he? A. Yes, he did. I asked him that and he told me that in reply. William Holmes, who was an employee of Duche, testified as to his soliciting authorization cards from some 28 persons; namely, Hazel Hall, Mary Mattis, Dan Mattis, Norma Gomes, Marjorie Susee, Edith Ferry, Patricia Butler, Sam Ross, Margie Wilson, Fred Wilson, Ivan Wilson, Joann Holmes, Claude Keller, Howard M. Cook, Glenda Rolfs, Nyla Standridge, Barbara J. Crawford, Audra Bell, Helen Enos, Donald Prince, John Adlesich, Mary R Hatcher, Pauline Herman, Lloyd Leach, Naomi Leach, Elenora Woodward, Thomas McMartin, and Albert Chavez.15 According to Holmes he first knew of an election when he saw some NLRB notices posted by the Company, he asked Cowan about them and Cowan told him the Company had asked for an election so the Union filed for it. Holmes testified he didn't recall Cowan stating that the reason he wanted the cards signed was so that people who signed would be protected against reprisal by the Company. In response to questions from the Trial Examiner concerning certain specified persons from whom Holmes testified he had solicited cards, Holmes said he told these persons that they "were trying to organize to get the majority to get the Union to speak to the company for us to negotiate," and ". . by signing the card they would help me get the majority so we could get representation by the Union...." On further examination by the General Counsel Holmes testified he explained to the employees that by "representation" he meant that the Union had the kind of men who could negotiate with the Company for a contract. He denied telling any employee that the only reason he was asking him to sign a card was for an election. On further cross-examination Holmes stated that he never told anyone that one of the reasons for signing a card was to get an election and added "I never mentioned an election." The Respondent asserts in its brief that Cowan is not to be credited in his testimony "that he never said he wanted cards signed in order to have an election" or that he never said "that the signing of the card was just to indicate that "These are exclusive of those obtained when with Cowan referred to, supra. they were willing for the Union . . . to give there the union's viewpoint". Respondent asserts that no less than five named witnesses including a witness for the General Counsel testified that Cowan said "there could or would be an election."' b Respondent also specifically refers to witness Violet Williams' testimony relative to an alleged statement by Cowan to her that signing a card only meant he had the right to talk with them. Respondent also asserts that three witnesses" testified contrary to Cowan that he told them a reason he wanted them to sign the card was to afford them union protection in the event of disciplinary action. Respondent also refers to Holmes' testimony that Cowan told him that the reason there was an election was that Duche asked for it Respondent argues that either Cowan or Holmes testified falsely since the petition received on the morning of February 21 by the N.L.R.B. regional office manifestly was mailed by the Union before it received O'Neill's letter of February 21, mailed on the afternoon of February 21. Respondent also points out Cowan testified he had been contacted by Robert Hodge while Hodge testified he had contacted Cowan. First, as to Respondent's contention that the testimony by Holmes that Cowan told him there was an election, because Duche asked for it, reflects a falsehood either by Cowan or Holmes. Holmes said he asked Cowan about this after he first learned of an election when he saw NLRB notices posted. According to Holmes he asked Cowan what the notices were about and if this meant an election Cowan responded that there was going to be an NLRB- election. Holmes then testified (on cross-eamination): Q. You asked him how come9 A. Yes, he said Duche had asked for an election, certified election Q.. No, he said that the reason that the union had filed for an election was because Duche had asked for an election? A. Right. I believe that's right. Q. Did he say he got a letter from Duche asking for an election? A. I don't recall. Holmes' testimony must be viewed as referring to a time when NLRB notices were posted which would be after the petition was filed and in normal course be after Respondent's letter of February 21 was received by the Union; the record reflects that on February 6 the Union, as set forth, supra, had written a letter requesting recognition to which it had received no response as of February 21, when it filed its petition - from which lack of response it might well assume that the Respondent would not recognize it without an election The Union subsequently received Respondent's letter of February 21 stating that it would recognize the Union when "Local No. 185 has been certified as such by the National Labor Relations Board following a secret election. Accordingly at the time of the conversation between Cowan and Holmes not only might the Union reasonably assume Respondent would not recognize it without an election but "Named by Respondent in its brief as a General Counsel witness was Violet Williams who actually testified as a Respondent witness I assume that Violet Warn-rack who was also named and who was a General Counsel witness was intended Other witnesses named by Respondent in this connection were Dale Standridge, Jerry Phillips, Mary Garcia, and Kenneth Stokes Their testimony relative thereto will be considered post. "Dale Standndge, Jerry Phillips, and Kenneth Stokes T. M. DUCHE NUT CO., INC. 463 it presumably was then in receipt of Respondent's assertion that it would not do so. Under such circumstances I consider that it would be an exercise in semantics to debate who required the election because there is no question that Respondent did so insist in its letter. Accordingly I conclude Cowan's statement to be one he might reasonably make and in any event is not evidence of falsification. With respect to Respondent's allegation concerning a conflict in testimony between Cowan and Hodge as to who contacted whom, the record reflects that Cowan testified "Well on the 13th of January I was contacted by Robert Hodge. We talked to each other on the telephone and I agreed to go to Orland to meet this Robert Hodge." Hodge testified that the first time he met Cowan was at the King Dollar station following a telephone call from Cowan to meet him at the station. Hodge explained that some fellow he didn't know told him Cowan wanted to meet someone from Duche's and talk to him and that Hodge said "Sure let him call me up." Hodge said Cowan called him first. Whether or not this too involves a question of the use of the word "contact" with Hodge indicating to Cowan through the unknown person that he, Hodge, was available or the more normal one of who directly contacted whom may arguably be debatable. However, even assuming the customary use of the word "contact" and accepting Hodge's version of the origin, was Cowan's testimony deliberately false or a failure of recollection? In evaluating this, what purpose would there be in a deliberate false statement on his part on what appears to have no particular significance? Under the circumstances and accepting Hodge's testimony, it would appear more likely that Cowan's testimony was-either a result of miscontruction of the word "contact" or one of recollection. In any event, I do not consider this item sufficient to discredit Cowan as to more significant aspects of his testimony which will be evaluated hereafter. With respect to Respondent's contentions as to what Cowan allegedly said concerning an election, examination of the testimony relative thereto by witnesses named by Respondent appears to be in order First, it should be noted that Respondent's brief lumps together various statements relating to an election when it states therein "no less than five witnesses, including Violet Williams. [sic]1e General Gounsel's witness, testified that Mr. Cowan did say that there could or would be an election." Respondent here uses the words "could" and "would" as if their meaning and significance were identical -- which they are not. However, no matter whose view - the Board's or that of some courts" is considered the mere reference to the word "election" is not decisive. In some contexts and usages it does not affect the validity of an authorization or designation of a Union as collective-bargaining representative. In others it may do so. To the extent there may be different interpretations among the Board and the Courts these appear to rest on the significance attached to (1) the wording of the authorization cards and (2) representations relative thereto and to an election in the light of the cards and the entire context. The mere reference to "election" in any context does not per se invalidate an otherwise valid authorization card. Used in conjunction with certain representations and references the word "election" has been held not to invalidate otherwise valid authorizations of designations while in other instances it may have such effect.20 "Apparently refers to Violet Warmack. See discussion, supra "See Cumberland Shoe, 144 NLRB 1268, enfd 3511 F.2d 482 (C.A. 6), First as to the testimony of Violet Warmack set forth in detail, supra, she said Cowan had told her if the Union got enough card signers they could present the cards to the Company and then negotiate . Warmack stated that in response to a question by her Cowan said , "If the company did not accept the union , then there could be an election." (Emphasis supplied .) In this context the reference to an election does not detract from the authorization and no case has been cited that so holds. Dale Standridge who was an inventory foreman , called as a witness by Respondent, testified he was at the meeting of employees at the B & B Cafe in January 1967, previously set forth , that cards were passed out and he signed one, which was not offered apparently since he was ineligible as a supervisor. Standridge testified on direct examination by Respondent that Cowan said: A. Well, he said he would like us to sign the cards, well, for one thing, if the company should go back on one of us, lay us off, that if we would sign the cards they would back us up , and if the Union should go in that we would get back pay, get our job back, and that eventually it would lead to a vote if there were enough cards signed. On cross-examination he testified that Cowan said a lot of things and that they talked about an hour and a half. He also testified: Q. He mentioned something about the Union's desire to negotiate with the Company, didn't he? A. Yes. Q. He mentioned that he would approach the Company as a representative of the Union, didn't he? A. I believe so. He further testified. Q. (By Mr. Silbert) Mr. Standridge, isn't it true that Mr. Cowan told you that if a majority of the employees signed these cards the Union would approach the Company and ask to negotiate on behalf of the employees? A It was my understanding there would be a vote. Q. Mr. Standridge, we are interested not in your understanding but what Mr. Cowan - MR. CONNORS: I think he is harassing the witness. We are interested in his understanding. THE WITNESS. My memory is not that good. MR. SILBERT: It is possible he could have said that? THE WITNESS: He could have said that. Q. (By Mr. Silbert) Mr, Cowan never told you that the only reason for signing these cards was for, your protection? A. That, and it would lead to a vote, Q. He didn't tell you those were the only reasons you were signing the card, did he? A. I can't say for sure but I do know that was the main one he told us. The foregoing indicates a repeated reference by the witness to a vote21 as the matter recalled by the witness and a tack of, recollection of much else although on cross-examination he recalled something about negotiating U. A. W v. NLRB., 373 F.2d 671, enfg. 158 NLRB 322. Bishop & Malco, 159 NLRB 1159. Henry I. Siegel, 165 NLRB No. 56; Cf N.L.R B., v. Swan Super Cleaners, 384 F 2d 609 (C.A. 6), N L.R.B v. Nichols Co., 380 F.2d 438 (C.A. 2), Crawford Mfg Co. v N.L R B., 386 F.2d 367 (C A 4); Engineers & Fabricators, Inc v N.L R B, 376 F.2d 482 (C.A 5). "See fn. 19 "But not the only or sole purpose for signing the card 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and approaching the Company as a representative of the Union. This testimony will be compared with that of other witnesses to be considered. Jerry Phillips called by Respondent also testified he attended the meeting at the B & B Cafe and that Cowan talked to them. Phillips testified on direct examination: MR. CONNORS• Tell us, to the best of your recollection, what he said? THE WITNESS: That we would have if we would sign a card that they would - if something came up with our job, you know, got laid off or something, he would stand behind us, and if 50 per cent of the people would sign, they would have another meeting and tell us more about it. That is about all. Q. (By Mr. Connors) Did he say anything about an election? A. Yes, there would be an election, he said. On cross-examination he testified: Q. (By Mr. Silbert) Did Mr. Cowan tell you the only reason you signed the card was to have an election? A. Not the only reason, no. Q. In fact, he mentioned something about approaching the company and negotiating with the company, didn't he? A. I don't really remember. Q. But it is possible he said that also, isn't it? A. Yes. Q. Did you read the card before you signed it' A. Yes, I read some of it. On questioning by the Trial Examiner, Phillips stated- TX Mr. Phillips, you read [heard] something to the effect that if they got more than 50 per cent there would be another meeting or meetings? W: Another meeting, yes. TX: Another meeting of whom? W. Employees. TX Was there anything said about meeting with the Company if they got 50 per cent? W. I don't remember exactly whether there was or not. TX: Now, when you signed the card, what was your understanding of what the effect of your signing would be' W: Well, I thought if I would sign the card, the way I understood it, well, they would have another meeting to tell more about the Union and that - they said if anything happened, well, they would stand behind us. TX. Was that your understanding when you signed the card? W: Yes. TX- Did you read the card first? W: I read part of it. We was in quite a bit of a hurry, and I didn't read the complete card. On questioning by counsel for the Charging Party he said: Q. (By Mr. Panattoni) Yes, I will restate the question. At the time of this meeting, wasn't it your understanding that after 50 per cent of the employees signed up there would be another meeting of the employees to find out what kind of things you were going to ask your employer to change or improve? A. My understanding was that after 50 percent of the cards were filled out that we would have another meeting and they was supposed to tell us more of what they could do, and then we was going to have a vote. Kenneth Stokes apparently also a supervisor, called by Respondent, testified that he attended the meeting at the B & B Cafe, and signed a card about January 21, 1967. He testified Cowan asked the employees present to sign cards, and said: A. That the cards was to represent - and in case they had enough cards signed to represent the people, if they had a certain majority of the cards, that they would have an election. Q. Do you remember anything else he said about the cards? - A. Well, he said that we would have a right to vote if there was an election, and the question was brought up about plant persecution or whatever you call it, and he said anyone that was at the meeting or anybody that had signed the card that they would see that they got proper representation if persecution should occur. On cross-examination in response to questions from the General Counsel, Stokes testified that Cowan or Union Representative Brickell who also was present told the employees the Union might be able to get them more benefits Stokes then testified: Q. And one of them mentioned also, didn't they, that they would attempt to negotiate with the employer about these benefits? A. Yes Q. As a matter of fact, Mr. Stokes, they said that if a majority of the employees signed cards they would approach the employees about negotiating these benefits? A I believe so. On further redirect examination Stokes was asked by Respondent counsel: Q. (By Mr. Connors) Mr. Stokes, what I wanted to ask you was, when you signed that card over at the B&B Grill, what was your state of mind as to what was going to happen? This question was objected to and after argument the objection was overruled and Stokes replied: W: My own personal state of mind of signing the card meant that if a certain number of cards were signed that there would be an election of the employees at Duche's. A motion to strike was thereupon denied essentially for the reason that in view of the various representations set forth testified to by the witness, there appeared to be ambiguity as to motivation in signing the card. However, thereafter the following occurred. MR. CONNORS: I wonder while the recess is on if you could find the last answer of the witness, Miss Reporter. (Short recess.) TX: I have denied whatever motion there was and I want the last answer to stand. Q. (By Mr. Connors) Did you hear your last answer read back? A. Yes. Q. Is that or is that not what you were told by Mr. Cowan? Objection to the question was overruled and the witness replied: W: That is what we was told, right. The Trial Examiner subsequently initiated a question with response as follows- TX: I am going to ask the witness one question right now: What were you told, in your own language? T. M. DUCHE NUT CO., INC. 465 MR. CONNORS: By whom? TX, By Mr. Cowan at this meeting. W: Well, I don't recall the exact words, but I wasn't personally told anything by Mr. Cowan. We was addressed as a group and it was explained to us that if there was enough people interested in organization of a union at this plant that we would show so by signing cards, and it was also explained that if there was enough cards signed that they would approach the management of the plant for bargaining, and if not recognized that there would be an election which would be ruled by the Labor Board [Emphasis supplied.] Another witness Ivan Leach called by Respondent was among those whom Cowan testified he had solicited for the Union. Leach testified that he signed a card and that he, Jean Embrey, George Embrey, and George Stokes signed together. Leach said that he wasn't sure if a union representative was present because "we had been drinking quite a bit." When asked if he was drunk, he replied: "Well I have been drunker." He was then asked "In your own opinion were you in full possession of your faculties`"' Leach responded, "I would say I knew more or less what I was doing, yes." Leach was asked if he had read the card and answered "No, I knew what it was about. I signed it I didn't see no point in reading it." In response to "how did he know9" Leach said there was talk "between a few fellows, groups, you know. Leach was asked what was said and replied: "They said to give the union authorization. I more or less thought it was to hold an election." The Trial Examiner then asked, "What were you told by whoever told you?" THE WrrNESS: He said: "Just sign the card and if they get a majority vote they will bring it over and present it to Mr. O'Neill and he can either go for it or not and if not they will have an election." [Emphasis supplied] Leach said he couldn't single out who told him this - that it was just in the group. Mary Garcia, called by Respondent, testified she signed a card at Cowan's request February 11 (after the demand for recognition was made). She testified Cowan told her: A. He told me that a majority of the women had already signed this card, and that if I signed the card that I was in obligation in no way and that I could withdraw any time I wanted to. * * * * * Q. What did you understand when he said you were not obligated in any way? * * * * Q. (By Mr. Connors) Did you have any particular understanding of that? A. Well, the way I understood it, is that if I wanted to vote I could vote either way. The foregoing relates to two aspects of Cowan's testimony - one of credibility on a tangential matter - whether or not he told employees signing a card would afford union protection and the other whether or not he assured t hem that an election would be held or ,made such references to an election as to invalidate the cards. Relative to the first aspect Cowan testified as follows. Q. Did you tell Mr Standridge at that time, at the B&B Cafe, that the reason you wanted these people to sign cards would be that they would be protected if the company discharged them or took any disciplinary action against them? W• No, I do not believe I did tell him if he signed a card he would have some protection, or whatever it was you stated. Q. (By Mr. Connors) All right. Did you tell anybody the reason you wanted them to sign cards was so they would be protected in the event the company took any disciplinary action against them? A. No, sir, my statement was to the employees that I discussed was that I was seeking to organize the Duche employees and that by signing the authorization card would give us, if possible, a majority. I don't recall at this time of making any other comments. Without endeavoring to be'unduly technical in analysis, it should be noted the answer was made in response to a question directed to "the reason" rather than "a reason" and concludes with "I don't recall making any other comments." The testimony of Standridge, Phillips, and Stokes referred to by Respondent and set forth above does indicate that Cowan did refer to the signing of the cards giving them some union protection. I credit their testimony in this respect. It should be noted that such is an argument often presented in connection with organizational activities. I also would point out both here and in my subsequent analysis of the testimony with reference to statements relative to an election, that practically all of the witnesses testified as to recollection of only a small part of what occurred during a fairly lengthy meeting.22 This necessarily poses the problem of how much stated testimony was accurately placed or set forth in relation to the whole as well as how much denied or omitted testimony was deliberate, inadvertent or due to lack of recollection. Whatever the reason for Cowan's denial of recollection as to any statements relative to the signing' of cards for protection against disciplinary action, I do not consider it bears decisive weight on material matters. Here again it would appear to serve no substantial purpose or objective to deliberately fail to recollect such a statement. I consider the alleged material matters can best be evaluated by analyzing the record as to them. Accordingly, I shall make a conclusionary analysis of the testimony of the "no less than five persons" whom Respondent" claims testified that Cowan said "there could or would be an election" along with the testimony of Cowan. This reflects the following: Cowan testified that he did not say that he wanted the cards for an election, and he denied telling anyone that if enough signed cards they could have an election. Cowan also testified that from time to time an election was mentioned by people he spoke to who knew about a prior election at Duche and who asked if there would be another to which he had responded (as set forth supra) he didn't know as they were only seeking authorization to approach the Company for recognition. "Testimony of Dale Standridge, supra, indicated it lasted about an hour and a half. "Respondent, as set forth, also referred to Cowan's solicitation of Violet Willimas, who signed a card dated February 11, which was not offered in evidence. Her testimony, in substance, was that Cowan solicited her signature about February 11 at a time when she had company According to Williams, she asked Cowan if it was something to make her join the Union, and he said "Absolutely -not, you are under no obligation whatsoever." She said "In other words I am not obligated to vote any way" and Cowan answered, "Right" According to Williams, Cowan also 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of the witnesses referred to by Respondent, Violet Warmack, who (actually) testified for the General Counsel, denied that she ever told anybody there might be an election, and as set forth previously, testified first that Cowan told her that if the Union could get enough signers they could present the cards to and negotiate with the Company. Warmack testified further that Cowan then told her in response to a question from her, "if the company did not accept the Union then there could be an election." The testimony of Respondent witnesses Standridge, Phillips, and Stokes with regard to the discussion that occurred at the B & B Cafe has been set forth, supra. As indicated therein, this represents only a partial- statement of what was said at that meeting. Not only is this true in the case of Standridge and Phillips but in addition neither witness said that Cowan told them that the cards were only for an election. The record further definitely reflects their inability to recall much of what was said, although Standridge did say he recalled Cowan mentioning something about negotiating and approaching the Company as a representative of the Union. 'Finally, as most persuasive concerning what occurred at the meeting was the testimony elicited from Kenneth Stokes. This has been set forth in detail to illustrate his entire testimony which initially appeared to indicate that he had been told the cards were for an election, then to reflect that he also was told about the cards being used for authorization and recognition purposes and then again testimony with respect to being told about their use for an election. The foregoing represents testimony elicited by respective counsel and the witnesses' responses. However, finally in response to -a direct question from the Trial Examiner, set forth above, to expressly tell what was said in his own words, Stokes, as set forth, stated that he had been told "if there was enough cards signed, that they would approach the management of the plant for bargaining and if not recognized that there would be an election which would be ruled by the Labor Board." (Emphasis supplied.) This latter testimony by Respondent witness, Kenneth Stokes, reflects substantial support for the testimony of Cowan as to what was, said at the meetings with regard to the obtaining of authorization cards and proceeding to seek recognition from the Company. Furthermore, in any event, it represents a proper statement, which would in no way negate the validity of the cards, - namely, to seek recognition on the base of the signed cards and if recognition were not forthcoming from the Respondent, then to have an election. The testimony of Respondent witness, Ivan Leach, set forth, supra, in essence is similar in its conclusion to that of Stokes - that he was told (by someone) "Just sign the card, and if they get a majority vote they will bring it to Mr. O'Neill and he can either go for it or not and if not they will have an election." (Emphasis supplied.) On the basis of analysis of the foregoing, without reference to Garcia's testimony which I will consider shortly, it appears that Cowan's testimony is essentially substantiated not only by General Counsel witnesses but also by Respondent witnesses and that no references were said concerning the card "something like giving them the right to talk to us" so she signed it but didn't read it thoroughly She said that she wasn't interested and when asked whether he said "he had a right to talk for you" replied, "He might have As I say, I had quite a lot of company that day " I conclude that the circumstances indicate a witness somewhat indifferent to the card who was busy at the time she signed. made to an election which would in any way nullify or invalidate the cards. This is supported not only by Cowan's testimony but also by the aforesaid testimony of Respondent witnesses Kenneth Stokes and Ivan Leach. In fact, even the testimony of the other Respondent witnesses whose statements obviously were incomplete and failed to set forth more than a fragment of the conversations taken out of context do not negate this finding - this latter testimony of witnesses such as Standridge and Phillips is, as previously indicated, pointed toward remembrance of an "election" but with little else definitely recalled. Even they did not say that the card was only for an election. I conclude that there is no substantial evidence to justify or support a conclusion that the cards were signed because of or on the basis of a promise of an election. Rather, I find and conclude that any references to an election were in connection with a situation that might arise in the event the Company first refused to recognize the Union on the basis of its authorization cards from the employees. With respect to the testimony of Mary Garcia, first it should be noted that the conversation occurred on February 11 after a request had been made to the employer to bargain with the Union. This was prior to the employer's refusal to recognize the Union. According to Garcia, she had been told that a majority had signed, (which apparently was true) and that if she signed, she was under "no obligation" and could withdraw any time she wanted to. The record indicates nothing to the contrary - whatever was meant by "no obligation." Garcia was asked what she understood when "he said you were not obligated." Garcia said that she understood that if she wanted to vote, she could vote either way The latter is a possible but not necessarily customary understanding of the statement about "no obligation," although it may bear on with what intent she signed the card. Were her card one of those to be considered, conceivably an argument might be presented and considered as to its validity. However, in this instance, resolution of such would serve no purpose since the card was not offered as it was signed February 11 after the demand was made. Whatever Mary Garcia's individual interpretation of the word "obligation" might be, it does not support a conclusion that Cowan told her or anybody else that there would be an election. Based upon the foregoing, I find and conclude that the cards introduced in evidence as obtained by William Cowan, which are referred to in the footnote below, 14 were all valid designations on behalf of the Union. Is With respect to other cards that were obtained, these will be discussed hereafter and particularly those concerning which a question has been raised by Respondent. Nyla Standridge called by Respondent testified that Holmes came to her house and told her that he thought the Union would be able to help them and that she did not recall anthing else. Standridge said she read the card "These consist of cards opposite numbers 1 through 14 and 16 through 18 on Appendix B hereto (GC 6 through 13, GC 15 through 20 and GC 22 and 23.) Also included are cards no 19 and 20 on Appendix B, GC 25 and 26 obtained jointly with William Holmes whose testimony relative to and the admissibility of other cards obtained by him is discussed hereafter Card no. 15 on Appendix B, GC 21 that of Margarita Dominguez is considered separately hereafter "In reaching this conclusion I have also considered the testimony of those referred to by Respondent in its brief as "disciples" of Cowan including Holmes discussed post as well as all testimony in the record concerning the signing of cards of which certain additional specific testimony is set forth and analyzed hereafter T. M. DUCHE NUT CO., INC. before she signed it. She was then asked, "Did Mr. Holmes say anything to you about an election'" She responded, "It was my understanding if he didn't I thought lie did as I say I just don't recall for sure." She was then asked by the Trial Examiner, "Did he use the word 'election'?" She replied, "I believe he did, or voting - it was either election or voting." Question: "What did he say?" The Witness: "I don't know exactly. It has been too long ago. My recall is not that good " Patricia Butler, apparently subpoenaed by the General Counsel, but called as a witness by Respondent, testified that Holmes told her, "'If we get enough signers on here - we need 51 per cent,' I believe, 'and we can have an election.' " Butler then testified on another occasion Holmes said to her "We hope we can get a majority." She replied, "Is this going to obligate us in any way or will anybody know we signed those cards?" Holmes said, "No, this is a secret." She then added that Holmes said that these cards would be given to a National Labor Relations man and that after a certain length of time they would be destroyed; that they were just to see if we could get a majority so we could have an election Butler then referred to her soliciting other employees to sign and that Holmes had asked her to talk to Mildred Powell. Butler said she went to Mildred Powell, explained the Union was trying to come in, and said, "Mildred, if you sign this card, all this is is giving the Union the right to come in and negotiate, it does not mean we are voting for or against the Union." Butler also took two cards to Mary Zaragosa and to Josephine Cesa, pursuant to Holmes' request. She spoke to them together and "I told them that the Union was trying to come in ...." Butler also told them about the benefits the Union thought they could get. She was then asked- Q. Now do you recall anything else you told these two ladies? A. I told them that they needed a majority of the girls at the plant. Q. For what purposes? A. To sign these cards so the Union could come in and negotiate. Q. Did you say anything to these two girls about an election? A. Yes, I told them that Bill had told me there would be an election and we could vote any way we wanted to. This card did not obligate us in any way. With respect to the testimony of Mildred Powell whose card will be considered hereafter, Butler who gave her the card testified that she had heard Powell's testimony but denied that she said anything to Mrs. Powell about a meeting that the Union was having. A consideration of testimony of other persons who obtained cards may be in order. Ivan Leach who was previously referred to as having been solicited by Cowan at a time when he (Leach) had been drinking, further testified he obtained cards from two other persons, Elizabeth Siemens and his sister, Martha Powell, whom he asked to sign a card. Leach said he couldn't remember what he said to her at the time and he could not recall whether lie told her that by signing she authorized Local 185 to represent her. Leach also said that he believed that he mentioned the word "election" but that was the extent of his recollection. Leach could not recall what he said to Elizabeth Siemens and stated that his condition at the time he requested her to sign was somewhat worse with respect to sobriety. According to Elizabeth Siemens, Leach brought the card to her house and said to her, " ' If you sign the card, 467 whatever how much they get together that they would see what that would be - and then he said we would be in no way obligated." Siemens said that she could not recall anything else, that she read and signed the card but did not pay too much attention to it. She was asked what she understood by the words "No obligation" and responded, "Well that there was -- well, I mean that I was not - well, that I that it just didn't mean that I would join the Union that we would have an election later on and that we could that we had the right to vote either way."24 Martha Powell testified that Leach asked her to sign the card; that he told her that about 95 to 96 percent of the people had signed and she should sign, that she wouldn't be "under any obligation". . She was asked if she read the card and replied that she glanced at it and read part of it but there was nothing in there "that I seen where I would be obligated to anything". Alice Embrey, a witness for the General Counsel, testified that she obtained cards from her brother-in-law Kenneth Embrey and also one from Kenneth Stokes; that she herself signed a card; that she obtained signed cards from Olive Thomas, Viola Williams, Francis Schluneger and Ina Chastain whose cards were received in evidence. Embrey testified that the cards of Chastain, Thomas, and Schluneger were signed in her presence after they had looked at the card. She said that she did not say anything about an election to any of the people who signed cards. She was asked by Respondent counsel on cross-examination, "Did you think that at any time that as a result of signing these cards there would be an election held by the Labor Board? Answer "No, I didn't." She was also asked by Respondent counsel: Q. What did you tell people when you asked them to sign this card? A. I told them the Union was thinking about coming in and they would have to have. signers to see if it was favorable. Q. See if what was favorable? A. If the Union could see if they could get together to come in Viola Williams testified that Alice Embrey obtained a card at her request but did not ask her to sign it and that she signed it on her own without solicitation. Glenda Rolfs testified that she obtained authorization cards from Verna O'Hair, Zelma O,'Hair, Carmen Gomez, Elizabeth Browning, Cecilia Torres, and Carrie Andrews. The cards of Verna O'Hair, Zelma O'Hair, and Elizabeth Browning were signed by them in her presence. The cards of Carmen Gomez and Carrie Andrews were signed in the presence of Zelma O'Hair who returned them to Rolfs.2' As for Cecilia Torres, Rolfs gave her a card which she subsequently returned to Rolfs Rolfs stated that she obtained the cards from Kenneth Stokes. She was asked: Q. Did Mr. Stokes say to you that he wanted the cards signed so that there could be an election? A. No, I don't remember. Rolfs was asked whether she heard any talk at all about an election before she saw the election signs and answered "no". She was asked after she saw the signs did she go to Mr. Stokes and ask why there was going to be an election. Rolfs responded, "No I knew that from the "Cf. the testimony of Mary Garcia, supra "They were authenticated through Zelma O'Hair whom it was stipulated when she was called as a witness would ' testify that she obtained these cards which were signed in her presence by'Andrews and Gomez on the dates therein. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election 2 years ago that if the Union and the Company couldn't come to an agreement that there would be an election." Rolfs said she didn't have any idea there was going to be an election one way or the other. Francis Schluneger called as a witness by the Respondent testified that she signed a card at her home while she was talking to Alice Embrey. Schluneger read the card before she signed it voluntarily without being asked to sign it It was explained to her "that this was to form a Union, organize a union " She was asked: Q. Was anything said to you about an election? A. There was not. Stella Satterfield testified that she got a card from Pat Butler which she signed; that Butler told her to guard it with her life and not let anyone at the plant get hold of it but did not say anything else. Satterfield said that Butler did not say anything to her about signing the card so that there would be an election. Satterfield signed the card later, gave it to Violet Warmack and asked her whether they were going to have another election like they did before. Warmack replied, "No that they were trying to get a majority so the union could negotiate with Duche." Satterfield also said that she obtained a card from Doris McIntire which was signed in her presence. Mildred Powell testified that she signed a card about January 31, filled in the "other information", but did not read it. She said she was talking at the time and just wrote it and "plopped it down on the table." On cross-examination, Powell testified nobody actually asked her to sign it; that Pat Butler came to her and they were talking and she said to Butler "What is it?" Powell was asked "Question: What did she say?" "Answer: She said, `It just means it gives the Union the right to come in and talk to us' And I said `Where?' and she said, `Well that Bill had told her that that was what it was and that it was going to be at the Fairgrounds.' " (The reference was to Bill Holmes .) Powell then testified that Butler told her "that is one of those cards that gives the Union the right to come in and talk to us." Powell said "Is that all?" to which Butler 'replied "yes." Powell further testified as follows: Q. When you signed this card which was General Counsel's exhibit 71 did you think that all you were agreeing to was to listen to this man at the fairgrounds`' Objection. Overruled. A. Yes. On redirect examination, Powell first said she did not remember when she received a letter from the Union informing her about a meeting at the fairgrounds, then she testified that she thought it was after she signed the card and subsequently that she really didn't know but imagined it was after she signed a card. Powell repeated that Butler told her she was signing a card so the Union could speak to her at the fairgrounds At still another point under questioning by the Trial Examiner, Powell again stated referring to Butler: "And she said `Well the way I understand it's just so that we can go and hear that guy talk.' " Trial Examiner "At the fairgrounds?" The Witness: "Yes." Powell further testified that she read the printed material but that she didn't read the part which said "Hereby authorize Local Union No." Butler, as previously set forth, testified she told Powell that in signing the card "all this is is giving the Union the right to come in and negotiate. " As was noted by the General Counsel in his brief, the Trial Examiner not only moved from one side of the bench to the'other (which was circular) to observe the witness ( as in all cases) but in addition had stepped down to watch this particular witness closely for the reason that the testimony appeared to illustrate some confusion on the part of the witness concerning the circumstances attendant to signing the card. Actually the record indicates that at the time of the card signing by Powell on January 31 the meeting at the fairgrounds had not even been scheduled." In my judgment Mildred Powell signed a card without clearly understanding or comprehending what it's ultimate significance was. I note that this latter could raise a question as to its validity although the Board has held that the signing of a card is sufficient" unless it can be shown that there was such misrepresentation or circumstances as to mislead the signer. I do not find such occurred nor do I find,that Powell was told that the signing of the card was so she could hear the man at the fairground. I reach this conclusion from Butler's testimony as to her conversation with Powell, evidence that no such meeting was in contemplation at the time, that such statement was not made to anyone else, that it is not one ordinarily used or logically expected to be used3° and finally from the confusion on the witness' part manifested by her testimony. Although I consider that there may be a question as to the validity of Powell's card, I conclude that under existing Board precedent it is valid and accordingly I so find." Cecilia Torres testified that she signed a card after Glenda Rolfs brought it to her home. In response to a question as to what Rolfs said to her, she testified on cross-examination: She said to sign that card and there was something about the Union which I did not understand too much about and she said that we would vote on it. Q. Was it your understanding that when you signed the card there would be some sort of an election? A. Yes. Torres was again asked what was said to the best of her recollection. She answered, "That is about all. That there would be an election and we would vote on the union." Torres was asked whether she recalled if anything was said about the Union negotiating with the Company. She responded, "I don't remember." The foregoing raises some question about Cecilia Torres' card. While the testimony does not amount to a statement that the sole purpose of signing the card was to have an election, the only item she could recall was that there was to be an election. Further, it could be inferred, as she testified was her understanding, that there was to be an election. Moreover, it may be argued that this was the basis for her signing the card. I find it unnecessary to resolve this since in evaluating the cards I will not consider Torres' as it will not affect the result. I have previously found that the cards obtained by Cowan were valid except I reserved consideration of the card of Margarita Dominguez. She had originally signed a card in the presence of her husband and Holmes. Since the signatures were not' too clear, her husband had "According to testimony of Cowan the meeting at the Fairgrounds was on March I I which was some, weeks after the petition was filed. "As set forth although Powell denied reading it she admitted she filled it in and signed it. " I note that such was specifically found by the court to have been said to a card signer in N.L R.B v Dan Howard, 390 F 2d 304, and the court there accordingly rejected the card However, as set forth, I have found for reasons enumerated that such a statement was not made to Mildred Powell herein "See cases cited fn 19 T. M. DUCHE NUT CO., INC. subsequently resigned for himself and had signed her name again. Obviously, the testimony indicates that there was a valid card signed by Margarita Dominguez and that her husband had simply replaced the earlier card. There is no showing of any contrary intervening intent on-her part. I consider that the reexecution by Consuelo Dominguez for his wife, under these circumstances, is sufficient to validate the card, based on the authority originally given when she signed the first card. The destruction of the earlier card would not invalidate the authority given by the card unless such was at her instance with her approval In support of its validity see Peterson Bros., 144 NLRB 679. In any event even were it not considered valid, it would not affect the majority as will appear hereafter. The card of Ivan Wilson, previously discussed, signed by his daughter at his direction in the presence of Holmes is clearly valid. See also Peterson Bros., supra. With respect to the cards obtained by Holmes (in addition to those obtained jointly with Cowan, supra) namely Nos. 24 through 51 on Exhibit B. GC 30 through 57), 1 find these to be valid designations. Nyla Standridge testimony set forth, supra, reflects a lack of recollection as to what Holmes said but in no way invalidates her card or any other. Butler's testimony, supra, concerning what Holmes told her, refers to needing 51 percent and "we can have an election." (Emphasis supplied.) This latter, as indicated, uses the word "can" and appears to be both vague and ambiguous. Moreover, it should be noted Butler then testified she told Mildred Powell that "all this is giving the Union the right to come in and negotiate, and it does not mean we are voting for or against the Union." In the case of Mary Zaragosa and Josephine Cesa, as set forth, Butler testified she told them the purpose was "to sign these cards so the Union could come in and negotiate," but when asked if she said anything about an election said "Yes, I told them that Bill had told me there would be an election and we could vote anyway we wanted to." (Emphasis supplied.) Here, in speaking to Zaragosa and Cesa, Butler testified she told them (1) the signing of the cards was so the Union could negotiate and (2) then testified she said there would be an election, while her direct testimony as to what Holmes told her was that there "can" be an election. There is admittedly some confusion involved. If the statements first made were that there would be an election, then Respondent's argument that an election was intended first and negotiations would follow if successful in the election becomes plausible. It also then might logically be argued that the purpose of signing was for an election. However, Holmes' testimony is contra, Cowan's contra and as set forth bosh Kenneth Stokes, Respondent witness, Ivan Leach, a Respondent witness, and Violet Warmack, a General Counsel witness in testifying as to what Cowan asserted, ultimately supported a sequence of "obtaining a majority first" then "seek to negotiate" and "if not obtain recognition" then "have an election." While Butler refers to obtaining a majority of 51 percent so they could have an election, it is common knowledge that 51 percent is not necessary to have an election. The reference to 51 percent, therefore, would not logically support a conclusion of obtaining that to have an election but rather one of obtaining 51 percent in order to negotiate I conclude that Butler either misunderstood Holmes in part or was confused to some extent as to what she was told by Holmes. As set forth she first testified as to Holmes telling her the need to obtain 51 percent so they can have an election, then as to her telling Mildred Powell that signing the card was only to give the Union the right to 469 negotiate and did not mean voting for or against it; then testifying that she told Mary Zaragosa and Josephine Cesa they needed a majority "to sign these cards so the Union could come in and negotiate", and finally that she told them "there would be an election and we would vote any way we wanted to." From Butler's testimony in the light of the testimony of Cowan, Holmes, Warmack, Kenneth Stokes, and Ivan Leach, I find and conclude that' any reference to an election that may have occurred followed a reference to obtaining a majority of cards so the Union could negotiate. Such cards appear valid under both existing Board decisions as well as Court cases 3E Even if the construction and conclusion I have reached as to Butler's testimony were not followed, her card and those of Zaragosa and Cesa would be valid under existing Board decisions Based on all the foregoing, I find valid the cards of Patricia Butler, Mary Zaragosa and Josephine Cesa.33 However, in any event, even if they were not included I would find and conclude that the Union possessed a majority at all times material. As to all other cards obtained by Holmes34 as well as those obtained by Butler, I find them valid.35 With respect to the cards obtained by Leach, I find them' valid. Elizabeth Siemens testified as to her "understanding" of the word "obligated." But I do not consider that such negates the normal effect of signing a card which is clear in meaning Further the normal meaning of the word "obligated" does not imply a representation of an election that would invalidate a card such as here involved. - The cards obtained by Alice Embrey are clearly valid and so also those obtained by or through Glenda Rolfs with the possible exception of the card of Cecilia Torres.', The foregoing indicates that of the 69 cards received all are clearly valid37 with the possible exception of the cards (of Cecilia Torres which I am not counting) and the cards of Patricia Butler, Mary Zaragosa, Josephine Cesa, and Mildred Powell which I also consider to be valid and am counting. I have previously found these latter to be valid authorizations. However, even if these and that of Margarita Dominguez which I have also found a valid authorization were not counted, the Union had valid authorization cards of 63 persons which represents a clear majority of the 118 persons in the unit.38 I accordingly find that at all times material the Union represented a majority in an appropriate unit. "See fn. 19- "I have previously found valid the card of Mildred Powell "Other than the aforementioned testimony of Butler, which I have discussed in detail, I note that none of the signers of cards solicited by Holmes of whom Linda Rolfs, Claude Keller, Joann Holmes, and Nyla Standridge testified, in any way contradicted the testimony of Holmes as to what he said when obtaining cards. "Stella Satterfield signed a card given her by Butler who said nothing Satterfield asked Violet Warmack about it and Warmack told her they were trying to get a majority so they could negotiate "As set forth, supra, I have not resolved the validity of Torres' card as it will not affect the result. "These include in addition to those I have 'specifically previously found valid all other cards received which are listed on Appendix B hereto "I consider my findings and conclusions with respect to the validity of all authorization cards found herein to be valid authorizations of the Union as collective-bargaining representative, to be not only in accord with the decisions of the Board referred to in footnote 19 but also as being in accord with the decisions of the courts set forth therein, as well as practically all other decisions of both the Board and the courts which are pertinent to the issues 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The unfair labor practices issues a. The allegations as to threats by Alfred Stokes The complaint alleges that about February 23, 1967, Respondent by Alfred Stokes, assistant plant superintendent, threatened to discharge an employee because of his union activities and that on about March 10, Stokes told an employee that Respondent would alter its method of operation and discharge some employees if ' the Union were selected. Item No. 2 of the Election Objections stated, "management's threat to discontinue swing shift if employees voted union thereby creating considerable loss of jobs contrary to act."_ This would appear to encompass in part the second alleged threat by Stokes and also in part certain alleged threats by President O'Neill referred to hereafter. William Holmes testified that shortly after the Union filed a petition he was called out on the wool ramp by Alfred Stokes" who according to Holmes told him "Howard O'Neill had information that a man on the day-shift was going around signing up people for the Union and when he found out who he was he would be canned on the spot." According to Holmes at this time he was the only male employee on the day shift who was soliciting authorization cards. On cross-examination Holmes admitted that during the same alleged conversation Stokes arranged his working schedule and that of his wife as they desired which was to leave them as they were. Stokes testified concerning the shift arrangements as to Holmes and his wife and denied that he ever told Holmes that he was going to fire him. The General Counsel makes a substantial point of the fact that Holmes' testimony was with respect to an unnamed individual being "canned" without mentioning Holmes. The General Counsel contends that accordingly Stokes' answer (by mentioning' Holmes) does not contradict Holmes' testimony. However, the General Counsel also relies on Holmes' testimony that he was the only individual soliciting cards at the time. If this is so, the implication would appear to be that Holmes was the individual purportedly referred to who was to be terminated. It would further appear that Respondent could properly draw such inference from Holmes' testimony and that accordingly Stokes' denial that he ever told Holmes he was going to fire him would in essence constitute a denial of Holmes' testimony and I so find. Stokes, in addition, testified that he did not fire anyone between January 15 and March 20 and that there was only one discharge or layoff on the night shift for drinking on the job. He further said that he spoke to Holmes about the latter's spending too much time on the belts and told him to spend more time "top side where he belongs". While the issue is not free from doubt, upon appraisal of the circumstances including the fact that Holmes apparently was wandering about so that he could properly be told to work in a certain location, that the employer granted his request to leave his and his wife's shifts as they were, that no one was discharged, and that there is no other evidence of any direct threat of discharge made to anyone else because of union activity, I find and conclude that the alleged threat to "can" somebody for union organizing work was not made as stated. Violet Warmack testified that she asked Stokes when the season would end and according to her Stokes replied: "An admitted supervisor of Respondent. He said he wasn't sure when he would finish, and I told him I had, heard that they was going to have to work year-round if we went union, and he said yes, this was the only way they- could make it pay is to go year-round basis, and he also said that they had been looking up the women's seniority, the amount of years they had worked, and I asked him if he recalled how many years my mother had worked, if it was 23 or 25 years, and he said he thought it was 23 or 25 years, and he said that if the union got in they would have to get rid of some of the people, the older people that couldn't carry their weight around there, that this is where the family ties would be broken. This conversation was not denied by Alfred Stokes and I find that it occurred as stated and to constitute a threat of reprisal in violation of Section 8(a)(1) of the Act. Its additional significance and import will be further seen, post, in connection with an analysis of the testimony of President O'Neill and the allegations relative thereto b. The alleged threat s made by President Howard O'Neill On March 15 and 16, prior to the election of March 17, President Howard O'Neill made a series of seven speeches to groups of employees varying in number from about 10 to 17 In connection with these I will first refer to O'Neill's version of the speeches or talks and then to the testimony of various witnesses relative to what he purportedly said to the extent that their testimony either supports, varies from, or contradicts his statements. In evaluating this I recognize that there may have been some variations at different meetings although according to O'Neill his talks were based on notes which had been cleared With his attorney. While the precise statements were not always identical, the general purport of the remarks according to O'Neill's testimony was intended to be similar. Respondent contends that everything O'Neill said was protected by Section 8(c) of the Act. The General Counsel contends that certain statements went beyond the protection of Section 8(c) and were threatening or coercive in nature. Respondent attempted to introduce evidence concerning the state of ' mind of numerous individual employees as to whether they felt threatened or coerced. The Trial Examiner sustained objections to a series of questions designed to elicit such information, which were propounded to various witnesses, for the reason that the effect of statements or utterances is a conclusion to be drawn by the Examiner and the Board based on such statements and utterances and attendant circumstances. O'Neill testified that the business, that of processing and shipping almonds and walnuts, was seasonal with a normal cycle running from late August to early September to a maximum in late January or early February with a season ending in April or May, that the maximum employment was 180 to 200 and the permanent number of employees about 30. He said that there were 3 shifts during the season although the graveyard shift was much smaller than the others. O'Neill prefaced his remarks to the employees by stating that he did not intend to make any threats or promises. O'Neill said he spoke to the employees against a background of rumors that "the plant was going on strike", and he assured them that any rumors of job loss were unfounded, that there would be an election and they had the right to think and vote as they pleased. O'Neill T. M. DUCHE NUT CO., INC. testified he also told them that he was distressed that some of them felt that they needed a uman, and further that he did not intend to make threats or promises and if anyone so construed his remarks they should stop him and say so. O'Neill then discussed the unemployment benefits that the people had enjoyed in the past years by only working on a seasonal basis. According to O'Neill he told the employees that the total employment insurance enjoyed by the people of Duche the season before approached $90,000 and that this amount of money added nearly $1 an hour to their income, which was tax free. Be said he told them the Company was paying the highest amount the industry could pay to support this but it was not completely necessary because the other nut companies were operating for the most part on a single day shift so they could qualify employees on a year-round basis and be able to give them certain benefits that Duche could not afford. O'Neill testified further "I refer to certain health benefits that seasonal employees are not eligible for, the company will not participate in it unless the company guarantees he will carry that policy during his off-season, if we felt we were forced into certain benefits that we felt we could not afford, we would have to alter our operation so we could then give these benefits to the employees on a full-time basis." O'Neill said he reminded the employees that in the past 12 years they had received II wage salary increases and only a few months before had received a substantial increase; that they had received a gift every year, during the past 12 years every year at Christmas, that they received the past Christmas as a paid holiday and had received other benefits such as hams, turkeys, and pies for both Thanksgiving and Christmas at Company expense. He mentioned the free coffee the Company provided which they were not compelled to do, since in union plants he had visited for the most part there were vending machines where the employees purchased coffee. According to O'Neill, "I told the employees we were obligated by law to bargain in good faith with the Union but we were under no obligation with respect to unreasonable demands and I would take a hard look at the - I believe the term was used in testimony - that I would be hard nosed about this - that I would be very careful not to be in violation of unfair practice but I did not think the people needed the Union because they had already received most of the benefits that the Union had promised or intimated they would get for them" (Emphasis supplied.)40 O'Neill then said he explained the criteria for hiring after pointing out that 60 percent of Respondent's cost was labor; he told the girls it was difficult because some years the crops were big and others they were small and it was difficult to pull in some people without at least being accused of some discrimination "that we did the best thing possible, in our own judgment, bringing them in, and releasing them, that the people were hired on a seasonal basis agreed upon at the start of every season, but that we would use our best ability to bring people in as we saw fit." O'Neill said he could not recall saying anything about if 60 percent of the people walked out the other 40 percent could work. He could recall a 60 percent figure only as referred to in connection with labor expense. O'Neill was asked about loading the truck on the street which subject had been referred to in testimony of General "I have emphasized the word unreasonable m view of certain contentions that will appear subsequently as to the omission of such word from certain employees' testimony concerning O'Neill's statements. 471 Counsel witnesses. O'Neill answered, "Yes the rumor was around that the plant would be completely paralyzed because the union would picket the plant and would not allow the trucks to come and go. This was a day or two before the talks so I talked to the city officials and several of the management of our trucking lines and we received assurance that we could either load in the street if we wished or that the interstate haulers would cross the lines and load the truck and we would not be stopped from operations." He said the rumors came to his attention from certain people at different times about the town to the effect that the plant was going to be on strike and the union had enough cards to take the people out. O'Neill told the employees he didn't think they needed a union and also mentioned that the financial situation reflected the Company actually showed a loss the year before. He also said he mentioned about the money that the Union would get in dues and made certain statements concerning the use of the revenue that the local union had received. According to O'Neill some people asked, "Well, we would like an insurance plan and would this be possible?" O'Neill testified he responded And I said that I could not make a committment at this time, however it was something that could be explored and looked into at a later date. O'Neill testified that at one of the talks he was asked why they couldn't have a suggestion box and "I said there would be nothing to prevent that." He said another person wanted to know if they could form a committee representing all the different shifts in the plant to meet with management and "I said there would be nothing wrong with that but I could not make a promise or a committment at that time." O'Neill was asked Q. Was any question asked you about change of operation by way of change of shifts in the plant? A. Yes. When I made references to the fact that when we had to qualify people on a 12-month basis we would have one shift 12 months of the year which would reduce the total labor force and then I was asked what would be the deciding factor, who would work, and I said that probably the best workers from every shift would be consolidated into one. On cross-examination O'Neill was asked Q. Now, can you tell me exactly what you said to the employees about bargaining with the union? A. Yes, I said the law required me to bargain with the union in good faith but I was not under any obligation to accept any unreasonable demand, and I remember at that time the question came up, now that you bring it to mind, "How often would you have to bargain with the union?" And I told them I did not know, but it could be once a week or month, that I did not know. Q Is it possible that you told the employees you didn't have to accept any demands made by the union? A. Any unreasonable demands. Q Is it possible that you just said "any demands"? A. No, it is not possible. I was very careful about that. Q. Were the comments you made about bargaining with the union comments that were taken from the prepared notes that you had' A. Yes, prepared notes. However, I varied from them a little bit. Q. I will show you a document that I believe is a copy of the prepared notes that you had 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. CONNORS. Yes, this is a copy we gave the Board. Q. (By Mr. Silbert) This is a copy of the notes you had? A. Yes. Q. I note No. 9 of that statement reads: "We do not have to accept any union demands." A. Yes, that is the way it reads. Q. It is not possible that that is the way you phrased that9 A. I have already told you how I answered the question. TX: Would you repeat it? Q. (By Mr. Silbert) The question, is it possible that you made your statement as it is indicated in your prepared notes? A. No, it is not possible. O'Neill repeated on further cross-examination that the statement he made was with respect to unreasonable demands and that he was positive that the word "unreasonable" was included although he admitted that his notes did not contain this. He said that he realized there was a difference in content between the meanings of "unreasonable" and "any union demands." He also said he understood at the time the notes were prepared it would be "an intimation of violation of the Act if I said I would not agree to any demand." O'Neill testified on further cross-examination: Q. Were you advised at any time that the legal consequences would differ if you used the words "refuse to accept any union demands" and if you used the words, "refuse to accept unreasonable union demands"? A. No, I was not advised that. Q. You were not advised that? A. No. O'Neill also testified: Q. Do you recall mentioning to the employees that you had three applications for every job? A. Yes, at the commencement at the speech, I told them that our telephones had been very busy because the rumor about the city was that all the employees would be going out on strike and since we have a tremendous supply of labor in Orland and many of the women had wanted to work there for years, that they were now calling and that there were now about three telephone calls for every job in the plant. He was subsequently asked: Q. At these meetings, Mr. O'Neill, you brought up the subject of the possibility of changing to one shift under certain circumstances. It was the first time you had mentioned any possibility of a change in the method of operation to the employees, was it not? A. Yes. O'Neill was asked by the Charging Union's attorney: Q. (By Mr. Panattoni) But at the time you gave this talk, Mr. O'Neill, do I understand you to say that you were considering a change' in the method of operation in the event the union was voted in? A. No, I was asked what changes would be made in the plant if we were forced to join the union. Q. And your statement and answer to that was that if the union went in you would have to make this change in shift; is that right? A. We would have to make some economic change to compensate for the economic cost which would be involved and additional benefits that they were enjoying Q. And that change would involve going to a year-round shift and in fact eliminating the night shift; is that correct? A. Yes. He further testified W: I told the people that if we were forced to join the union and that these benefits -- we were forced to accept 14 of these benefits, that they were not presently enjoying, it would increase our cost of operation and we would then have to balance the extra cost of operation, and one way would be that we would have to work 12 months' basis rather than 6 or 7 months' basis. Then the question immediately came up, "What would you do with the night shift?" MR. PANATTONI• And your answer was? W: That the night shift would probably be eliminated. O'Neill was asked about whether he had told the employees that since they work from season to season he was under no obligation to rehire them at the opening of a new season and he replied that he did not say that, although he testified that it was the policy of the Company to consider employees as seasonal workers and that their relationship was terminated at the end of the season with no obligation to rehire. He said this was made known to them through the employment application that they signed every year. On further examination by the Charging Party, O'Neill again was asked about the use of the words "any demand as compared with unreasonable demand. He was asked if he considered that a statement to employees that he would "reject any union demand" would be in violation of the Act O'Neill responded, "This was discussed, this particular phraseology was discussed by Mr. Connors (Respondent counsel) and myself on the telephone the day before I gave the talks and it was clearly understood at that time that the words "unreasonable demands" would be used. O'Neill further stated that he prepared the notes (from which he spoke) completely on his own without advice of counsel and then called him to check them. O'Neill was again referred to Item No. 8 of the notes which read "We do not have to accept any union demands" and again repeated that in his talks he referred to "unreasonable demands." O'Neill was asked from the Trial Examiner "During your talks did you make any statements about keeping older people". W: I mentioned hardship cases. We have had a few for the last 6 or 7 years that have no other means of income for the family that we have kept on. TX: What did you say? W: It came up by questions of some of the girls that they were having to work harder than some of the others, and I tried to explain that there were a few in the plant - I didn't want to name names because they were generally known - who had lost husbands and had to make a living for the family, probably were not as keen as some of the girls in ability but they were in older years and we did feel sorry for them in their loyalty we returned it by keeping them on the payroll 41 In order to evaluate the testimony of General Counsel's witnesses as compared with O'Neill's version and 'According to O'Neill, the hardship cases were only discussed in two of the meetings T. M. DUCHE NUT CO., INC. statements, these will be analyzed in a number of categories by pointing out pertinent testimony of various witnesses for the General Counsel relative to those statements or utterances of O'Neill which the General Counsel contends constituted violations of the Act.42 Accordingly, the testimony will be analyzed on the basis of the following general contentions raised by the General Counsel One, that O'Neill in his speeches indicated that the employer wouldn't properly bargain or in essence voiced a position of anticipatory refusal to bargain or negotiate in good faith. Second, a contention that O'Neill threatened employees with loss of job security or of work by changing to a one-shift operation in the event the Union were selected, and by emphasized reference to having three applicants for each job. Third, a contention that he made certain promises of benefit such as insurance programs and also a promise of permission for or suggestion of selection of an employee committee. Fourth, although not directly set forth in the General Counsel's brief, there appears to be implicit in the testimony offered by the General Counsel a contention that O'Neill threatened the employees with the inevitability of a strike if the Union were selected; that all employees who went on strike would be replaced as he had three applicants for each job and that the strike could not be successful as not only did he have replacements available but had arranged to use the street to pick up the nuts to avoid any interference. This latter will be considered in conjunction with the alleged threat of change to a one-shift operation and alleged threat of loss of unemployment benefits. In addition to analysis of the testimony as to each of the foregoing, there will also be considered the total impact upon employees of what was said by O'Neill. It should be noted in considering the foregoing that there appears to be some inconsistency in the purported positions of the Respondent. Such inconsistency may be manifested among alleged statements that the Union could, in essence, get nothing from bargaining, that the advent of the Union would force a change in shift operations and at the same time that the advent of the Union would necessarily cause a strike which would not succeed. In general, it appears that the witnesses, both those of the General Counsel and O'Neill, were seeking to tell the truth as they saw and recalled it. This leads to another question. If witnesses generally recalled an illegal sequence., even assuming it were not precisely so stated, but were a logical import of the presentation as made, would Respondent be responsible, therefor If such result could reasonably occur, then the answer would appear to be "yes." I recognize this leads to still another question which Respondent sought to ask numerous employees (but to which objection was sustained) and that was, did the employee feel threatened? However, there is this difference - that the employees were reciting what they believed they heard or what they understood which is quite different from whether they felt threatened or coerced. Accordingly, evaluation of the testimony appears in order. First, as to the General Counsel's claim that in response to questions from employees at some meetings, O'Neill promised certain benefits in the future. Purportedly, with respect to health insurance O'Neill told the employees ". . . it would be gone into later on and he couldn't see any reason why with the size of the Duche plant he felt it could be worked out;" or O'Neill uttered "In one instance also pertinent testimony of another witness for Respondent is set forth. 473 words to such effect. While General Counsel witness Holmes so testified, other witnesses, among those referred to by the General Counsel, testified somewhat differently. According to Claude Keller, O'Neill said ". . . he couldn't see why a plant as large as Duche Nut Company couldn't have a good health insurance program and that he would look into it." (Emphasis supplied.) Admittedly, this implies doing something but is not a promise in the same sense as the testimony of Holmes quoted previously. There appears the following also by Keller. On cross-examination, Keller was asked if the remarks about insurance were prompted by a question and answered, " and I asked him a question on part time or seasonal employees' insurance program and he said they would have to look into both matters". General Counsel witness Linda Rolfs testified on direct examination, . . as somebody had asked him the question about insurance and he said he didn't realize that the girls were that interested in it, but he would try to look into it at a later date " Joann Holmes testified she asked O'Neill about insurance "and he said that he didn't know that the employees wanted an insurance plan and that he would look into it". Holmes, on cross-examination, testified O'Neill said "he would look into it later". Holmes then reasserted his earlier testimony by quoting O'Neill to the following effect: "He said he saw no reason we couldn't get a plan because of the size of Duche". As previously set forth, O'Neill's version of his answer relative to insurance was that he said he could not make a commitment at the time but "it was something that could be explored and looked into at a later date." Similar testimony with respect to a suggestion box was elicited that "he would look into it" and actually one was put up a week or two after the election. O'Neill admitted that the subject of a suggestion box had been brought up and his version was "there would be nothing to prevent that." There was also some testimony concerning selection of a committee of women. O'Neill testified that he told the employees that there would be nothing wrong with such a committee but that he could not make a promise at the time. Three employees for the General Counsel testified as follows: (1) Violet Warmack that O'Neill said ", . he felt it would be a good idea if we selected a committee that would come to him with problems.. ."; (2) Ann Conlee that O'Neill said "he had heard a committee was appointed at the meeting and he thought that was rather a good idea, he thought that after this was over he wculd like to have some kind of committee like that for the women - ." Conlee added, "He thought it was rather a good idea and he would give that some consideration." (3) According to Joann Holmes' testimony ". . . a lady in the meeting asked why, if we had problems, why didn't we form a committee and go to him with the problems and he said that would be fine if he (we?) wanted to...." The General Counsel contends that the foregoing illustrates a promise of benefit by the Respondent in order to induce the employees to abandon the Union. I am not unaware of the sublety of promises; however, I believe that the question is one of degree and extent. I am not convinced that the Respondent's responses here were of such definite nature or in such context as to bring them within the scope of the cases which have held that there were promises in violation of Section 8(a)(1).43 "See the recent Decision of the Board in Redcor Corporation, 166 NLRB No 120, and cases cited in TXD This case was one in which the undersigned Trial Examiner was involved but the extent of the implied 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Then this brings us to the major issues of controversy revolving essentially around three basic contentions. (1) That the Respondent threatened bargaining would inevitably be fruitless - in essence, a charge of anticipatory refusal to bargain; (2) That the Respondent threatened that if the Union came in it would have to go to a one-shift operation from a seasonal one with resultant loss of jobs. Involved in this as part of the situation is the prior testimony of Warmack with respect to what Alfred Stokes said concerning the elimination of older people and possibly certain implications arising from the testimony of some other witnesses respecting what was said by O'Neill as to older people,49 (3) What amounts to an implied contention (from the evidence) that the employer, in essence, threatened a strike would occur or warned of the inevitability of a strike, that the workers had no hope of winning the, strike, that the Respondent could and would replace all who went on strike with available replacements of whom there were plenty. These three main items will be considered as set forth, both individually and collectively, as to their total import hereafter. The following testimony of witnesses for the General Counsel appears pertinent on these issues. Violet Warmack testified that O'Neill said at one meeting which was held in the coffeeshop on March 15: . . . we could always come to him with anything, he stated that the coffee cost him $170 a month to maintain coffee and furnish us with coffee, he said they were paying all they could afford to pay, and that he would not have to bargain with the union and he was going to be hard-nosed about coming to agreement with the union,. . before the election (held March 17) as follows: He went on to state he had been getting calls every day from people seeking employment because of the publicity of the union, and he went on to say that he had three applications for every person's job in the plant and that if the union was successful he would have no alternative but to run the plant on a one-shift, year-round basis, and to get his one shift he said he would take the most qualified people off the two shifts and put them on one shift, year-round, and by this he said people would be laid off. He then went on to state that if the union was successful by 60 per cent, and 40 per cent didn't want the union, that in case of a strike or a picket the 40 per cent would be able to come back to the plant and go to work; should the 60 per cent that voted for the union fail to cross the picket line they would be replaced. He then went on to say he had permission from the city of Orland to load his trucks in the street, and he had also contacted management of the three truck lines that haul for Duche and the management assured him they personally would see these trucks cross the picket line . . . He then went on to say he was paying the highest wages he could afford to pay, and he said no one could make him pay higher. He said some were comparable to union scale, some below. Then he said no one could force him to negotiate, that the law read that he had to bargain in good faith, but he said this meant he could speak to the union and then do what he wanted to, go right on doing what he wanted to do. He said coffee cost him $170 a month and that most places had coin-operated machines. I believe that is all I can recollect. [Emphasis supplied.] ... he said he was going to have to cut out one crew to make it pay, that other companies were going to automation and were putting out more production with less girls or less crew, he said he wasn't worried about getting the product out, that he had made arrangements with the City of Orland to haul the nuts in the street. [Emphasis supplied.] * * * * * Q. You mentioned that he had talked about loading the trucks in the street. In that context, did he say anything about a strike or anything of that nature? * * * * * A. Yes, he said that if we went on strike that he had been getting telephone calls and he had three applicants for every woman's position there. [Emphasis supplied.] William Holmes testified as to a meeting in the coffeeroom at about 3:10 in the afternoon about 2 days promises made therein at the meetings of employees was so great as to clearly indicate that in certain respects the employer had made very definite commitments regarding material matters I do not consider such to be the case herein. "As set forth, supra, O'Neill himself admitted discussing at two meetings the matter of keeping certain older people, so-called "hardship" cases Other witnesses including Ann Conlee (post ) referred to O'Neill stating it had been company policy "to carry a good many of those (slower older ladies) but he might have to change that in the future " Linda Rolfs, post, testified O'Neill said, ". . . he did say that he had hired a lot of the older girls out of sentiment and that if some of the girls had to work harder to make up for it it couldn' t be helped " In this connection, Joann Holmes testified to substantially the same effect as Linda Rolfs Holmes further testified on cross-examination: Q. Now, at the beginning of Mr. O'Neill's talk, did he tell you that he was somewhat familiar with the law and that he did not intend to make any threats or any promises' A. Yes, he did. Q. Did he say that more than once during the course of this talk? A. As I recall, he said it several times. Q. And did he tell you that many of the topics which he covered were covered because of questions he had asked of him about employees? A. No, he said most of his speech was made out by his lawyer. There was no questions other than the insurance. Ann Conlee testified as to a meeting held in the coffeeroom just after 5 o'clock when they went to work that night. According to Conlee, O'Neill said: . . then he said there had been a lot of gossip going around, and his phone had been ringing, and people were calling in for jobs and he had three applications for every job we held. Then he said he thought conditions were fairly good, we received coffee, which cost about $175 a month. He also said that the union were not going to get in there, that he would fight it all the way, and if we were going out on strike the pickets could walk up and down, and back and forth, and it wouldn't worry him at all.... [Emphasis supplied.] * * * * * Q. Do you recall if something else was said at that meeting? T. M. DUCHE NUT CO., INC. A. He mentioned that several of the women were dissatisfied because they had to do the work of some of the slower, older ladies , and he realized that that was hard, but that had been a company policy , to carry a good many of those ladies, but he might have to change that in the future. Q. Did he say why he would have to change it? A. No. * * * * Q. He made some statements about what would happen if there was a strike and certain employees coming back. Did he say anything else about the strike? A. No, only that if there were pickets outside it wouldn't bother him if they stayed quite a while because he was going to see the union wouldn't get in. Q. Did he say anything about help loading trucks? A. Yes. I think he said he had permission - I think it was permission from the city, to load the nuts in the street Q. Was Mr. O'Neill using notes when he made the speech? A. He was reading from some papers. Q. How often did he refer to the papers? A. He would glance at them occasionally. Linda Rolfs attended a meeting about a few minutes after 6 o'clock on March 15, and testified that O'Neill said: Q. Can you tell me now, to the best of your recollection, what was said by Mr. O'Neill at that meeting? A. One thing, he stated about unemployment, how much he paid out, and that it amounted to about a dollar more per hour for the girls in the summertime. He made a statement about the coffee, which was $170 per month. He made a statement about the trucks, if the union was voted in, there was a picket line, that he had made arrangements with the city to load the trucks in the streets. He did say that he had telephone calls all day since this deal over this union had started and he had three applications for every employee's job. [Emphasis supplied.] Q. Can you recall if anything else was said? A. I can't think right offhand. He did say that if the Union didn't get in, that everything would go on the same as before, that there would be no changes in employment. [Emphasis supplied.] * * * * * W: He said that they had always hired by seniority, and he did say that he had hired a lot of the older girls out of sentiment, and that if some of the girls had to work harder to make up for it, it couldn't be helped. He said that the union coming in, trying to come in, had cost him a lot of time, and a lot of money, and he wasn't going to forget it. Q. The question was whether or not Mr. O'Neill mentioned anything on the subject of bargaining or meeting with the union? A. He said he didn't he wasn't going to bargain with the union, that he didn't have to bargain in good faith if he didn't want to. I can't think of anything else. * * * Cross-examination 475 Q. (By Mr. Connors) Mrs. Rolfs, did I understand you to say that Mr. O'Neill said he didn't have to bargain with the union? A. As I remember it, yes. Q. Don't you think he said he did have to bargain with the union in good faith and had to meet with them? A. It could have been that way. Q. Did he start off his remarks by saying he didn't want to make any threats and didn't intend to make any threats? A. He said that, yes Employee Claude Keller testified at a meeting in the coffeeroom about 3:15 p.m. O'Neill said: ... and he said that the company was paying as much as they could afford to pay and they would not and could not pay more, and he said that he had been having an awful lot of phone calls, that the line had been tied up there at the company, I believe he said at his house also, and that people were requesting jobs if and when we went on strike, he said there was a big rumor going around to this effect, and that there was something like three applications for every one job in the plant, and he said that if we did go on strike, if the union was successful and we did go on strike, that he had permission from Orland to load the trucks in the street, and he had a guarantee of trucks, and he said if the union did go in that the plant would operate on a year-round basis , that it would be the only way he could make the plant pay, and he said because his buyers who bought nuts from him did not want nuts all at one time, and he had been having to put them in cold storage, and he said working all year-round would eliminate his paying unemployment, that as it was right now it was approximately a dollar an hour paid into unemployment for the people that worked there on a part-time basis. [Emphasis supplied.] * * * * * Q. Do you recall if anything else was said at that meeting? A. Oh, he said during the meeting there that if we did go on strike the jobs there would be there, but if we went on strike that he would just replace us. * * * * * He said that he wouldn't have to bargain - oh - he considered bargaining in good faith with the union, was that he would have to meet with the union approximately once a month and listen to them, but he said he did not have to agree with what they had to say, or a contract, that the plant would continue to run as usual * * * * * Q You mentioned that Mr. O'Neill said something about working year-round. Did he say how that would be done or how that would be accomplished? A. Yes, he said that they would only have to have one shift, that if they worked on a year-round basis, that there would be no hurry to get the nuts out as there is on a seasonal basis, that they would go to one shift and that would mean a loss of jobs [Emphasis supplied.] 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination, Keller testified Q And he said that his conception of good faith bargaining or his concept of good faith bargaining was that he would have to meet with the union and listen to what they had to say; is that correct9 A. Yes, that is what he said. On questioning by the Trial Examiner, Keller testified: TRIAL EXAMINER: I have a question . What was said about the year-round operation? Who said it? Was there a question or did Mr. O'Neill bring it up? How did it come about? THE WITNESS' In the meeting Mr. O'Neill stated that if the union was successful in obtaining the plant that he would have to go to a year-round basis. The way I took it, his meaning was he would put the plant on a year-round basis. TRIAL EXAMINER: Just indicate for the record what he said. THE WITNESS: He said that he would go to a year-round basis and this meant that he would need only one shift and that it would eliminate the second shift. [Emphasis supplied.] TRIAL EXAMINER: Is that what he said? THE WITNESS. To the best of my memory, yes. Subsequently, on further cross-examination, Keller testified: Q. Did he say that if the union was voted in and wages were increased he would have to offset these additional costs somehow? A. Yes, he did. Q. And didn't he say he would have to change our operations to make them similar to other nut companies,- namely, the one-shift basis? A. Yes,-he did. Stella Satterfield testified that she attended a meeting about 5 minutes after 4 in the coffeeroom 2 days before the election and that O'Neill stated: Well, first, the thing that I really remember is he brought up the cost of unemployment to the plant, that our wages would be increased considerable if we added the unemployment which he let us have by seasonal work, and he said that coffee cost him a certain amount, and I don't remember just how much, but the cost of coffee was brought up, so much per month, and he did say that he had been - that the phone had been ringing all day, women who had heard of union activities figured that there would be some of us out of work or some jobs available, and that they were calling in, and he said that even if some of you - "if 60 per cent of you vote for the union and 40 per cent against, I can take the 40 per cent and hire additional help and the 60 per cent will be out," and he said, "If you have any idea you can stop us from getting the nuts away from the plant," he had already made arrangements to load in the street. . . Q Do you recall if anything else was said with respect to the operation of the plant in the future? A. Yes. This was in connection - when he was talking about the cost of unemployment, as well as I remember, that he would have to cut one crew off and run full time in order to economize He said they were paying all they could and nobody could make them pay more. Q. Can you remember anything else that was said? Do you recall if anything was said on the subject of meeting with the union? A. I don't remember anything about that. He said he didn't have to bargain with anybody. Q. What did he say along that line? A. Those were his exact words, "I don't have to bargain with anybody " On cross-examination, Mrs. Satterfield testified: Q. (By Mr Connors) Is it your testimony, Mrs. Satterfield, that Mr. O'Neill said he didn't have to bargain? A That is the way I remember. Q. Is your memory pretty clear on that? A. Well, I remember it that way. He said he was going to be hardnosed about it. [Emphasis supplied.] Joann Holmes testified that O'Neill spoke to a group, including herself some time after 6 o'clock on March '15 in the coffeeroom. She testified that O'Neill said: Well, at first he said - I think it was at first - he said that he had spoken to his lawyers about this and - to find out what he could say, and that they were experts in this sort of thing, and he had notes in front of him and he read from his notes - or didn't read from them but he looked at his notes every once in a while, and then he told us that since the community had heard about the election not the election, I take that back - the union tried to get in, that his telephones had been ringing off the hooks from people wanting applications for work, and that he had three applications for every job in the plant, and then he went on to say that if the union did go in that he would be forced to put the plant on a one-shift, year- round basis, eliminating the night shift, and - let's see - I think somebody asked him or said to him that he thought that Duches could be forced to negotiate with the union, and he said that no one could force him to sign - do, say, sign or accept anything that he didn't want to. [Emphasis supplied.] * then a lady asked him if the union went in, would she have to join because she didn't want to, and he told her No, she would not have to join, and then he used the example of 60 per cent for, the union and 40 per cent against the union. He said the 40 per cent could work and should there be a strike, the 40 per cent could cross the picket line and the 60 per cent could be replaced, and then he mentioned that some of the older ladies that had worked there for years arid years, that he the plant hired back every year out of sentiment, and if the rest of us had to work a little bit harder to maybe compensate for being a little slower, that he was just sorry, but that is the way they did it, and he also said that he had obtained permission from the City of Orland to load his trucks - or to load trucks in the street should there be a strike. [Emphasis supplied.] On cross-examination, she testified: Q. Did he say the law required him to negotiate with the union? A No, an employee said that he through the Duche Company could be forced to bargain with the union, and he said no one could force him to do anything. Q. Did he say he would not bargain with the union? A. No, he just said no one could force him to. T. M. DUCHE NUT CO., INC. Q. To sign anything? A. Do, say, sign or accept, he said. Jessie Degel, a witness called by Respondent, testified that she attended one of the meetings and recalled some of what O'Neill said including the following: ... and then he said that if the union got in that there would be a possibility that in order to meet the, oh, benefits, if they negotiated and everything, and that there would be a possibility that they would have to go year-round and they would pick the best workers from both shifts and have one shift year-round. The foregoing, except for the testimony of Mrs Degel who posed the matter in terms of "possibility" of going to a yearly operation, indicates (except as set forth below)" consistent testimony by the General Counsel witnesses to the effect that O'Neill threatened to go to a one-shift operation with resultant loss of jobs in the event that the Union was successful; that he also threatened that bargaining would do no good because he was going to be "hard nosed" in bargaining and didn't have to agree to or accept anything; that further that he repeated in the various meetings that he had three phone calls by job applicants for every employee; that if there were a strike he was prepared to and would replace the strikers and operate the plant. While O'Neill, as previously set forth, claimed that he had said that he would not agree to "unreasonable" demands, the testimony set forth indicates a totality of position by O'Neill to the effect that he would bargain only to the extent that he chose to do so, he didn't have to agree to or accept anything46 and was going to be "hardnosed", that he would eliminate jobs in the event the Union were successful by going to one shift and that in the event the Union were successful and called a strike that he would beat the strike by having three available replacements for each worker and by having made plans to operate during the strike. The first problem concerns conclusions as to what O'Neill said. Assuming that they were telling the truth, as I find, there seems to be no doubt that the aforesaid witnesses for the General Counselgl understood him to have made the various statements in substance as "I note in this connection an arguable ambiguity in Keller' s testimony on direct examination where he stated O'Neill "said if the Union did go in that the plant would operate on a year-round basis , that it would be the only way he could make the plant pay; he also so testified on questioning by the Trial Examiner. Then on further cross as set forth, supra, he responded "yes" to a question , "Did he say that if the Union was voted in and wages were increased he would have to offset these additional costs somehow"" And a further answer of "yes" to a question, "Didn't he say he would have to change our operations to make them similar to other nut companies, namely the one shift basis?" This testimony unlike Keller's earlier testimony and that of the other witnesses for the General Counsel as to what they heard at various meetings, refers to what would follow a wage incn.ase. I expect this would have been involved in O'Neill's thinking. However, the testimony of employees set forth , supra, other than possibly Keller and Degel was that O'Neill spoke of a one shift operation with loss of jobs it the Union were selected without reference to costs. Even in Keller's latter testimony set forth , although there is a reference to cost at one point there is no qualification on the change to a one shift operation This would occur. Actually although the questions set forth on cross-examination followed each other in the record it is not clear therefrom what time sequence may have been involved between such a "cost" reference by O'Neill and the statement about changing to a one shift operation "As further supporting the conclusion that O'Neill said he did not have to agree with or accept anything he didn't want to, is the reference in the notes used by O'Neill , supra, to "We do not have to accept any union demands." I do not predicate my findings thereon but consider it further supporting evidence therefor. 477 consistently set forth by them. The only variance from this was the testimony of Respondent witness Degel who qualified O'Neill's statement as to "possibly" going to one shift. Her recollection was obviously poor and I do not credit her testimony with respect to such qualification.48 I further find it reasonable to infer that the aforesaid witnesses for the General Counsel heard O'Neill to have stated, in substance, what was set forth Although I consider that if enough persons "heard" certain statements as made, Respondent could be found responsible therefor and for the cumulative effect of O'Neill's remarks even if not actually so stated, I do not find it necessary to rely on such concept. Rather I conclude from all of the testimony and my appraisal of the witnesses that whether or not he intended to do so O'Neill at the various meetings made the statements set forth herein attributed to him by the witnesses named in footnote 46 hereto. The next question is did these statements violate the Act or were they protected under Section 8(c). The Court of Appeals for the Ninth Circuit in the very recent case of T. R. W. Semi-Conductors '41 analyzed the issue very carefully and reversed the Board in that case on the ground that in essence the employer's statements were in the nature of predictions. I believe that the position asserted by the Court of Appeals is a sound one. The problem is when are predictions such and when are they threats or something more. The court, in its opinion, stated "We can find in the material supporting the first two themes no threat that the employer would use force or indulge in reprisal. The literature-and the speech, insofar as violence and strikes are concerned, are but predictions of what the Union might or would do. As such, we think that they'fall squarely within the protection of Section 8(c) even though they might well produce in the minds of employees fears of violence. The same observation applies to predictions of possible monetary loss or job loss resulting from strikes that are contained in the propaganda. [Citations omitted.] There is no suggestion that the employer will reduce benefits or cut jobs if the employees vote for the Union. [Emphasis supplied.] The prediction is that the Union may or will cause such losses through strikes." The question, therefore, is were the Respondent's statements herein mere predictions or were they "suggestions" or more than suggestions that the employer will reduce benefits or cut jobs if the employees vote for the Union. I think that a fair interpretation of the remarks set forth above, supra, which I have found were made by the employer constitute threats (1) that the employer would reduce benefits by going to a one shift operation if the Union were successful, (2) that if the Union were selected, there very likely would be a strike which the Union would lose because Respondent had prepared for it, and further the employees who went on strike would lose their jobs because they would be replaced and (3) that the employer would not bargain in good faith with the Union. I recognize, as set forth above, that the employer was advised by counsel and that these asserted positions have an apparency of inconsistency. Whether they were made conjunctively or disjunctively, is not decisive herein. The fact is that all were asserted in the same speech - each time the speech was repeated. 47I refer to Warmack, William Holmes, Conlee, Rolfs, Keller, Satterfield, and Joann Holmes. In footnote 44, I have also analyzed Keller's testimony with respect to any variance from other witnesses "385 F 2d 753 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They were not set forth as an informative presentation of possibilities which conceivably could have been proper Rather, they were presented as matters which would occur. The inferences which can be drawn from the foregoing are not only such as might arise from one type of threat but rather from a combination of threats. To paraphrase: First, it won't do you any good to get the Union because we won't bargain anyway; second, If you do select the Union, it will mean a loss of employment, and you may lose your job; and third, if the Union is selected there is likely to be a strike, and we have the replacements and will replace you if you strike. These are not predictions of possibilities or even probabilities but rather utterances of what the employees could expect the employer would do. This latter as pointed out by the court in T R. W. Semi-Conductors, supra, is not protected by Section 8(c). In that case the court distinguished the statements therein on the ground they were merely "predictions of possibilities or probabilities." It recognized (citing cases) that statements of what will happen are violative of the Act where they involve reduction of benefits, loss of jobs, etc. In addition to the decision of the Court of Appeals for the Ninth Circuit in the T. R. W. Semi-Conductors case, the Court of Appeals for the Seventh Circuit, in ld L R.B. v. Kolmar50 recently passed on a like question. In a series of letters to employees the employer indicated according to the Court: [3] Respondent's pre-election campaign appears to have been, calculated to impress its employees with three "facts." The first was that respondent's economic position at its Milwaukee plant was extremely precarious and that the effective reasons for continuing the Milwaukee operations were sentimental rather than economic. The second "fact" was that any impairment of respondent's competitive position in the market served by its Milwaukee plant would compel it to close the plant and transfer its operations elsewhere. The third "fact" was that the introduction' of 'a union at the plant would, impair respondent's competitive position. These "facts" inescapably lead to the conclusion that election of the union would be tantamount to the termination , of operations at Milwaukee and the consequent loss of employment. [4] We need not detain ourselves in linking together the excerpts from respondent's campaign pronouncements The test is whether the likely import of respondent's pronouncements was coercive . Wausau Steel Corp. v. N.L.R.B , supra 377 F.2d at 372. Here the likely import was that if the union won, plant closure was a foregone conclusion. [Emphasis supplied.] The court further stated: Respondent contends that where the employer has maintained a close relationship with its employees and its course of conduct does not show a pattern of unfairness to the union, these factors should be considered in determining whether its communications were coercive. It cites several recent decisions of this court in.which these factors were found to render the employer's pronouncements innocuous. In none of these cases was the message as ominous as in this case. [Emphasis supplied.] [5] Respondent further contends it was merely giving its employees the facts, enabling them to make a reasonable and free choice "It is well settled that an SB387 F 2d 833. employer's 'prediction' of untoward economic events may constitute an illegal threat if he has it within his power to make the prediction come true " International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.L.R.B., 110 U.S. App. D.C. 91. 289 F.2d 757, 763 (1960). Respondent has the power to close or relocate its Milwaukee plants' [Emphasis supplied.] I recognize as did the court in T. R. W. Semi-Conductors and the court in Kolmar that issues such as here involved are rarely free from doubt and further that freedom of expression is to be given considerable latitude However, where the expressions are coercive in effect whether disjunctively or conjunctively as I have found herein they are neither protected by Section 8(c) of the Act nor the constitutional guarantees of Freedom of Speech and Expression. Accordingly, I find that both by the threats or coercive statements by O'Neill as to loss of jobs and benefits set forth above, disjunctively as well as conjunctively, and also by its anticipatory refusal to bargain in good faith.52 Respondent violated Section 8(a)(1) of the Act. I have also, supra, so found violative of Section 8(a)(1) the threat by Alfred Stokes to Violet Warmack that if the union were selected they would go to a year-round basis and they would "have to get rid of some of the people," referring particularly to older people. 3. Conclusions as to Respondent's good faith Another question to be resolved is was Respondent's refusal to recognize the Union without an election in good faith or not where the Union possessed a majority at the time? I am aware that certain law review writers53 and also some courts have expressed doubt concerning the use of subsequent unfair labor practices to establish proof of "See also Wausau Steel Corporation , 377 F 2d 371 (C A 7) in which the court said During the period prior to the election , Theodore Wallach, Wausau's president, communicated with his employees by letters and through speeches While Wallach was generally guarded in his statements, he did suggest that if the union won the election, overtime work might be reduced or eliminated. He also stated that increased expenses due to unionization might make it necessary to sell trucks , and to close the new steel department, and that if the union obtained a 22 or 22 1/2 cent raise for the employees, Wausau would be forced out of business He noted that certain wage inequities had come to his attention and that he planned to correct them. He further said No union can supply you with overtime or force the company to provide overtime Our margin of profit is so small that any substantial increase in our costs would mean that we would operate at a loss and be forced to drop major parts of our operations We don't want this - and you don't either We intend, when this union matter is settled, to make proper adjustments in wages and to establish a reasonable insurance program This theme was stressed a number of times in Wallach 's various communications [Emphasis supplied ] The Court also stated While we do not doubt that Wallach proceeded carefully in attempting to limit his communications to his employees to the legally permissible, his words must be judged by their likely import to his employees As the trial examiner suggested, one who engaged in "brinksmanship" may easily overstep and tumble into the brink It is well settled that an employer has violated Sec. 8(a)(1) of the Act if, in communicating to his employees during a union organizational drive preceding an election, he makes promises of benefit or threats of loss or reprisal for their vote [citing cases] [Emphasis supplied ] 'rThat such conduct is tantamount to a threat to employees to refrain from assisting or becoming members of a union, see Grunwald Marx, 127 NLRB 477 citing Augusta Bedding, 93 NLRB 211, 212 See also Raytheon , 160 NLRB 1603. "See 75 Yale Law Journal 805 at 825 et seq , Lesnick 65 Michigan Law Review 851 at 855 T. M. DUCHE NUT CO., INC. 479 bad faith in a refusal to recognize a union having a majority of signed authorization card S.54 However, the Board has taken a different view as to consideration of subsequent unfair labor practices in evaluating the presence or absence of good faith. The Board has weighed the extent and seriousness of the unfair labor practices considered in connection with all the circumstances involved in reaching an evaluation as to whether a refusal to bargain was in good faith or not. In its decision in Bernel Foam" the Board stated in a footnote* Unlike the Trial Examiner, we are not convinced that, because Respondent made no effort to impede or delay the election and because Respondent's unlawful 8(a)(1) conduct did not occur until 2 weeks after its refusal to bargain with the Union, it follows that Respondent's refusal to bargain was not motivated by a desire to gain time in which to undermine the Union. On the contrary, the time necessarily consumed in arranging for an election is itself a delay when compared with immediate recognition or acceptance of an impartial card check. Moreover, the fact that Respondent waited until the day before the election to engage in unlawful conduct is entirely consistent with a finding that Respondent refused to bargain with the Union in order to gain time to destroy its majority, since on the day of the election Respondent would benefit most from its unlawful acts. At that time, the Union would have little opportunity prior to the election to undo the harm done by Respondent's various coercive statements. Further, since Respondent had taken active steps just prior to the election to destroy the Union's majority there obviously was no necessity for Respondent to delay the election further. [Emphasis supplied.] The Board subsequently in the lead case of Aaron Brothers" discussed certain criteria for determining whether an employer's refusal to bargain with a union (shown to have a majority) was in good or bad faith. It stated Whether an employer is acting in good or bad faith in questioning the union's majority is a determination which of necessity must be made in the light of all the relevant facts of the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct. Where a company has engaged in substantial unfair labor practices calculated to dissipate union support, the Board, with the courts' approval, has concluded that employer insistence on an election was not motivated by a good-faith doubt of the union's majority, but rather by a rejection of . the collective-bargaining principle or by a desire to gain time within which to undermine the union. However, this does not mean that any employer conduct found violative of Section 8(a)(1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding. For instance, where an employer's unfair labor practices are not of such a character as to reflect a purpose to evade an obligation to bargain, the Board will not draw an inference of bad "See for example discussion in N L R B v. United Mineral & Chemical Corporation, 391 F 2d 829 (C A 2), and N.L R B v. River Togs , 382 F 2d 198,20b-209 "146 NLRB 1277 at 1284 "158 NLRB 1077 faith. It referred to Hammond and Irving" as a case where the unfair practice (some interrogation) "while unlawful was not so flagrant that it must necessarily have had the object of destroying the Union's majority status." However, in later cases the Board distinguished the Hammond & Irving case on the facts therein. For instance in I , T. T. Semi-Conductors, Inc.," the Board said: We view the Section 8(a)(1) violations found to have been committed by Respondent throughout the period of the Union's organization activity to be of a serious, substantial and pervasive nature. The threat to close the plant should the Union be designated as bargaining representative, the furnishing of material and space on company time for the fabrication and dissemination of anti-Union propaganda, the granting of a wage increase at a time calculated to interfere with the self-organizational rights of employees, and the disparate enforcement of a no-solicitation rule are each, in our judgment, by themselves sufficient to establish that the Respondent had as its purpose the rejection of the collective bargaining principle or the desire to gain time within which to undermine the Union and dissipate its majority [Emphasis supplied.] The Board went on to find that Respondent violated Section 8(a)(5) by refusing to recognize the,Union In Fabricators, Incorporated, 168 NLRB No. 21, the Board said: In meeting with a group of employees for the purposes of discussing employee grievarres, the day before the election, President Jagoe threatened that if the "troublemaker" were identified the trouble would be eliminated. And a department fotcman made a threat of layoffs if the Union came in, with an admonition to an employee to spreads t is warning, which the employee obeyed In our jr gment, these threats of serious reprisals plainly refleklr Respondent's attitude toward its employees' unionization. These unfair labor practices, coupled with, unlawful interrogations by Jagoe and other respqisible Company representatives, occurring both befire and after Respondent's refusal to extend reca;nition, clearly support an inference of bad faith or the part of Respondent. [Emphasis supplied.] These cases and others' indicate vhere there are substantial unfair labor practices such as hreats of layoff or discharge (as here) and/or a threw, of refusal to bargain, they must "necessarily have the object of destroying the Union's majority status" ol^ establish that Respondent "had as its purpose the reection of the collective-bargaining principle or the desiii to gain time within which to undermine the Union art dissipate its majority." Accordingly under the circu(stances here involved, the nature of the threats rade by the Respondent in conjunction with the impeling election were such as to require a finding and conclu;on under the aforesaid decisions of the Board that the Repondent was not acting in good faith in refusing to rrrognrze and bargain with the Union without an election, I conclude that Respondent has violated Section 8(a)() and also 8(a)(1) of the Act by such refusal to btgam. The 1"154 NLRB 1071. "165 NLRB No. 98 "See Galbreath Bakery, Inc, 163 NLRB No 41, and discutio, therein. and see N L R B v Consolidated Rendering Co , 386 F 2d "i99at 703, (C A 2) 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate remedy, therefore, under the aforesaid decisions, will be to require the Respondent to recognize and bargain with the Union.6° Furthermore, as stated by the Board in Fabricators, Incorporated, ibid.- in any event, an order directing the Respondent to bargain with the Union, upon request, is necessary to remedy the effects of its unfair labor practices. The record establishes that the Union had a majority when the Respondent began its course of unfair labor practices directed at destroying this support. The subsequent diminution of support, as revealed by the Union's loss in the election, can only be attributed to the Respondent's unlawful conduct 61 I shall accordingly recommend that the Respondent be ordered to bargain, upon request, both to remedy its violation of Section 8(a)(5) and its violation of Section 8(a)(1) of the Act IV. OBJECTIONS TO THE ELECTION Item 2 of the election objections is as follows: "Management's threat to discontinue swing shift of employers voted Union, thereby creating considerable loss of jobs contiary to the Act." This encompasses substantially the same matters alleged in paragraph 2(b) and (c) of the, complaint that Respondent informed employees "that Respondent would alter its method of operation and discharge some of its employees if they selected the, Union as their collective bargaining representative" I have previously found under Heading III that Respondent engaged in such alleged conduct in. violation of Section 8(a)(1) of the Act. For the same reasons, previously set forth under Heading III, I hereby find that Respondent (Employer) has engaged in the conduct alleged in the aforesaid Item 2 of the election objections. Ac[ordingly, I am recommending that the election be se; aside. In view of my findings and recommendatiois that the Respondent be required to bargain with tlb Union, I further recommend that the petition for epresentation be dismissed and all proceedings helcthereunder be vacated.62 V. THE REMEDY Having foui'I that Respondent has engaged in and is engaging in ertain unfair labor practices, I shall recommend tht it cease and desist therefrom and that it take certain afirmative action which I find necessary to remedy and 'emove the effects of the unfair labor practices and n effectuate the policies of the Act. Affirmative, I shall recommend that upon request Respondent hrgain collectively with the Union for the employees in he unit herein found appropriate. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By threatening to change its operations and discharge employees if the Union were selected as collective-bargaining representative, Respondent restrained and coerced its employees and thereby violated Section 8(a)(1) of the Act. 2. By threatening that it would not bargain in good faith with the Union if selected as collective-bargaining representative, Respondent restrained and coerced its employees and thereby violated Section 8(a)(1) of the Act. 3. All production and maintenance employees of T. M. Duche Nut Co., Inc., at its processing plant at Orland, California, excluding office clerical employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sections 8(a)(5) and 9 of the Act. 4. On February 7, 1967, and at all material times thereafter, the Union represented a majority and has been the exclusive bargaining representative of all the employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Sections 8(a)(5) and 9 of the Act; and Respondent on that date was, and has since been, obligated to recognize and bargain with the Union as such. 5. By refusing, upon request, to recognize or bargain with the Union for the employees in the above-mentioned appropriate unit on and after February 7, 1967, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] "The courts have also sustained such a remedy under similar circumstances . See for example N L R.B v. Luisi Truck Lines, 384 F.2d 842 at 847, (C A 9), citing cases , "Citing Bryant Chucking Grinder Company, 160 NLRB 1526 The Board there said- Respondent's subsequent unfair labor practices, designed to induce employees to abandon their support for the Union , demonstrated a rejection of the collective-bargaining principle and give rise to the inference that its initial refusal to bargain was not in good faith. . . The record establishes that the Union had a clear majority when the Respondent began its course of unfair labor practices directed at destroying that majority. To the extent that the election revealed a loss of union support thereafter, such loss must be found attributable to the Respondent's unfair labor practices . Therefore, we shall order the Respondent to bargain, upon request, with the Union both to remedy its violation of Section 8(a)(5) and its violations of Section 8(a)(1) of the Act. 'Urving Air Chute, 147 NLRB 627 at 630 APPENDIX B LIST OF AUTHORIZATION CARDS Signed by: Introduced by: Trans. No. 1. Thomas Utter (G.C. 6) Hugh Cowan 35 Michael Utter (G.C. 7) Hugh Cowan 36 3. Ed Bayless (G.C. 8) Hugh Cowan 38 4. Everett Button, Jr. (G.C. 9) Hugh Cowan 40-42 T. M. DUCHE NUT CO., INC. 481 5. William Holmes (G.C. 10) Hugh Cowan 40-42 6. Jerry Phillips (G.C. 11) Hugh Cowan 40-42 7. Hurshell Hodge (G.C. 12) Hugh Cowan 40-42 8. Robert Hodge (G.C. 13) Hugh Cowan 40-42 9. Mary Lou Castillo (G.C. 15) Hugh Cowan 44 10. Violet Warmack (G.C. 16) Hugh Cowan 46 11. George Embrey (G.C. 17) Hugh Cowan 47-50 12. Ivan Leach (G.C. 18) Hugh Cowan 47-50 13. George Stokes (G.C. 19) Hugh Cowan 47-50 14. Consuelo Dominguez (G.C. 20) Hugh Cowan 51-53 15. Margarita Dominguez (G.C 21) Hugh Cowan and 51-57, William Holmes 117-119, 151 16. Anne Conlee (G.C. 22) Hugh Cowan 58, 59 17. Roma Croft (G.C. 23) Hugh Cowan 59, 60 18. Margarita Audelo (G.C. 24) Hugh Cowan 60, 61 19. Ragna Dobratz (G.C. 25) Hugh Cowan (also present William Holmes) 62 20. Amy Oltjmbruns (G.C. 26) Hugh Cowan (also present William Holmes) 63} 64 21. Frances Simpson (G.C. 27) Violet Warmack 85, 86 22. Joy Brumbaugh (G.C. 28) Violet Warmack 87 23. Alice Larsen (GC. 29) Violet Warmack 88 24. Hazel Hall (G.C. 30) William Holmes 104, 105 25 Mary Mattis (G.C. 31) William Holmes 105, 106 26 Dan Mattis (G.C. 32) William Holmes 1 66, 107 27. Norma Gomes (G.C. 33) William Holmes 108 28. Marjorie Susee (G.C. 34) William Holmes 108-112 29. Edith Ferry (G.C. 35) William Holmes 108-112 30. Patricia Butler (G.C. 36) William Holmes 108-112 31. Sam Ross (G.C. 37) William Holmes 108-112 32. Margie Wilson (G.C. 38) William Holmes 108-112 33. Fred Wilson (G.C. 39) William Holmes 108-112 34. Ivan Wilson (G.C. 40) William Holmes 110-112, 152-156 35. Joann Holmes (G. C. 41) William Holmes 113-115 36. Claude Keller (G.C. 42) William Holmes 113-115 37 Howard M. Cook (G.C. 43) William Holmes 114-115 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 38. Glenda Rolfs (G.C. 44) William Holmes 114-115 39. Nyla Standridge (G.C. 45) William Holmes 114-115 40. Barbara J. Crawford (G.C 46) William Holmes 114-115 41. Audra Bell (G.C 47) William Holmes 114-115 42. Helen Enos (G.C 48) William Holmes 114-115 43. Donald Prince (G.C. 49) William Holmes 114-1`15 44. John Adlesich (G.C. 50) William Holmes 114-115 45. Mary R. Hatcher (G.C 51) William Holmes 114-115 46. Pauline Herman (G.C. 52) William Holmes 114-115 47. Lloyd Leach (G.C. 53) William Holmes 114-115 48 Naomi Leach (G.C. 54) William Holmes 114-115 49. Elenora Woodward (G.C. 55) William Holmes 115 50. Thomas McMartin (G.C. 56) William Holmes 115, 116 51. Albert Chavez (G.C. 57) William Holmes 138, 139 52. Alice Embrey (G.C. 58) Alice Embrey 158 53. Olive Thomas (G.C. 59) Alice Embrey 159, 160 54. Ina Chastain (G.C. 60) Alice Embrey 160, 161 55. Francis Schluneger (G.C. 61) Alice Embrey 161, 162, 215, 216 56. Viola Williams (G.C. 62) Viola Williams 170 57. Elizabeth Browning (G.C. 63) Glenda Rolfs 221, 222 58. Verna O'Hair (G.C. 64) Glenda Rolfs 222, 223 59. Zelma O'Hair (G.C. 65) Glenda Rolfs 223, 224 60. Carmen Gomez (G.C. 66) Glenda Rolfs and 224, 241, Zelma O'Hair 242 61. Carrie Andrews (G.C. 67) Zelma O'Hair 225, 241, 242 62. Cecilia Torres (G.C. 68) Cecilia Torres 339-343 63. Doris McIntire (G.C. 69) Stella Satterfield 251, 252 64. Stella Satterfield (G.C. 70) Stella Satterfield 252, 253 65. Mildred Powell (G.C. 71) Mildred Powell 275 66. Mary Zaragosa (G.C. 72) Pat Butler 316 67. Josephine Cesa (G.C. 73) Pat Butler 317 68. Martha Powell (G.C. 74) Ivan Leach 324, 325 69. Elizabeth Siemens (G.C. 75) Ivan Leach 326