Redmond Plastics, Inc.

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Redmond Plastics, Inc. and Textile Workers' Union of America, AFL-CIO. Case 3-CA-3480 May 22, 1969 DECISION AND ORDER By MEMBERS BROWN, JENKINS, AND ZAGORIA 1968), on a charge filed April 12, alleged that Respondent engaged in unfair labor practices proscribed by Section 8(a)(l) and (5) of the Act, by refusing on and after April 1, to bargain with the Union as the majority representative of its employees in an appropriate unit. Respondent answered on June 3, denying the unfair labor practices. Upon the entire record in the case and from my observation of the witnesses, I make the following: On September 25, 1968, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Redmond Plastics, Inc., Marion , New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'In affirming the Trial Examiner's Decision, we find it unnecessary to consider or adopt his statements as to the application of the Court's views expressed in Local 1179 Retail Clerks Union v . N L.R.B. 376 F.2d 186 (C.A. 9), to the instant case Moreover, in agreeing with the Trial Examiner that the Union held valid authorization cards from a majority of the employees in the unit at the time of its request for recognition and bargaining, we find it unnecessary, and do not pass upon , the validity of Elsie Van Hoover's card or the Trial Examiner 's discussion in connection therewith In adopting the Trial Examiner 's conclusion that the Respondent violated Sec. 8(aX5), Member Zagona relies only on Snow & Sons, j34 NLRB 709. See his concurring opinion in Aaron Brothers Company of California. 158 NLRB 1077,108 1. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE A. DOWNING, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was heard at Rochester, New York, on July 8 and 9, 1968, pursuant to due notice. The complaint which was issued on May 23 (all events herein occurred in FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS; THE LABOR ORGANIZATION INVOLVED I find on admitted facts that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act' and that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Introduction and Issues Respondent corporation was founded by Floyd Redmond, its president, who personally continues to manage its manufacturing plant in Marion, though a majority stock interest is presently owned by Western Felt Works of Chicago, with which the Union has had a contractual relationship for some years. The material events herein occurred within the space of a few days (March 27 through April 1) during which the Union quickly organized Respondent's employees and made an immediate request for recognition . That request, made to President Redmond on April 1, was backed by production of some 15 cards in a unit of 21 employees and by a temporary failure to report to work by a physical majority of the employees. Respondent contests, however, the Union's actual majority and also claims a good-faith doubt on Redmond's part. Also involved is an issue whether Redmond acknowledged the Union's majority and agreed to recognize and to negotiate with the Union. No issue is presented concerning the appropriate unit (see Conclusion of Law 1) nor as to the identity of the employees who constituted it as listed in Appendix A hereto. B. The Organizational Drive The Union's Majority The organization drive, which was conducted by International Representatives Donald J. Lamb and Ed Sherman, began on March 27 with discussions with Wilbur Mander, Roger Anderson and John Hotel, the latter of whom was asked to form a committee. On the evening of March 28, Sherman and Lamb met at Hotel's home with a group consisting of Hotel, his brother Abram, Mander, Anderson, and Gary Hubright, all of whom signed authorization cards and who received other cards for distribution among fellow employees. Following return to them on Friday of 10 additional signed authorizations, Lamb and Sherman held a further meeting at Hotel's home on Sunday, attended by the Hotels, Roberta Raup and Paul McCord. There was discussion of 'Respondent, a New York corporation engaged in the manufacture and sale of valve and pump parts, sells and ships annually to extrastate points products valued in excess of $50,000. 176 NLRB No. 10 REDMOND PLASTICS, INC. the Western Felt contract, among others, and of benefits which might be sought . The union representatives informed the employees the Union had a majority of signed cards, that they would ask for recognition the following morning, and they suggested the employees stay outside the shop and not to punch in as proof of the majority. Complying with that suggestion some 12 employees remained outside while the request for recognition was being made of Redmond at 7:30 a .m. on April 1. See section C, infra. At that time there were 21 employees in the stipulated unit (see Appendix A), of whom only three had clocked in to work. To establish record proof of majority , the General Counsel offered 15 signed authorization cards which read as follows: TEXTILE WORKERS UNION OF AMERICA Affiliate of the AFL-CIO and CLC I hereby accept membership in the Textile Workers Union of America of my own free will and do hereby designate said Textile Workers Union of America as my representative for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment. Following authenticating testimony given by witnesses Roger Anderson, Wilbur Mander, Ed Sherman, Gary Hubright, Abram Hotel, and John Hotel, 14 of the authorizations were received in evidence as marked with the designation (C) on Appendix A hereto, and one was rejected. Examination on voir dire and on cross developed nothing of substance which reflected on the authenticity of any one of the 14 authorizations,: but Respondent also called five of the signatories to testify to the circumstances under which the cards were signed. As there was again little of substance which tended to invalidate the authorizations under recent Board decisions (e.g., Levi Strauss & Co., 172 NLRB No. 57; McEwen Mfg. Co., 172 NLRB No. 99), the testimony can be briefly summarized. Helen Lonneville Lonneville's card was received on authentication by Gary Hubright, who testified he told her it was a union card and asked whether she wanted to sign. After first demurring, Lonneville said she thought she needed benefits and thereupon signed the card and gave it back to him. 'Relying on N.L.R.B. v . Gorbea, Perez and Morell, 300 F .2d 886. 888 (C.A 1), Respondent assigns , for example, Sherman's admission that he informed the five committeemen on March 28, that initiation fees would be waived . The precise issue was raised by the employer in Amalgamated Clothing Workers v. N.L.R. B., 345 F.2d 264, 267-268 (C.A. 2), with the court refusing to follow Gorbea though it assumed that the waiver helped to induce the employees to sign the authorization cards. Respondent also cites testimony by Mander and Anderson that the committeemen were told to sign up the employees quickly and not to give them a chance to think it over because someone might talk to Redmond about it. They were told to keep the matter secret because it would be easier to get the Union in if Redmond were taken by surprise and that they should not give a card back even if the signatory asked for it. There was nothing in that statement of an organizational technique or in the manner of its application by the solicitors which reflected on the validity of a single authorization , including those signed by five employees called by Respondent next to be considered below. 99 Lonneville admitted that Hubright told her it was a union card, that the employees wanted the Union for hospital benefits and needed to have a majority to go along with them. She thereupon signed the card without reading it (but after filling out all blanks) in order to help her fellow workers obtain hospital benefits, understanding that the union would come in by the signing of the cards and that the employees would get those benefits. Verna E. Chapman Chapman's card was received on authentication by Abram J. Hotel, who testified he told her it was a union card, asked her to read it over, date it and sign it. Shortly afterwards Chapman returned her signed card to him but did not fill in the blanks. Chapman admitted she knew the card was a union card and saw the name Textile Workers' Union on it (after first denying the latter). She testified that Hotel told her the employees wanted hospitalization and other benefits and that by "voting for" or signing the card, the employees could perhaps produce those benefits. Thereupon she signed the card without reading it in order to give her fellow employees the "go ahead" and to help them get the benefits. Elsie Van Hoover Hoover's card was received on authentication by John Hotel, who testified he gave her the card, told her the employees were trying to get a union in, and asked if she would like to join the Union. Hoover later returned her signed card to him with all blanks filled in. Hoover testified that Hotel told her he would like for her to sign the card to get the Union in and to get benefits for the employees, and she admitted that to signing she was doing so to have union representation. Hoover testified further, however, that Hotel told her that everyone else had signed and (under an offer of proof) that she would not have signed but for Hotel's statement. Lloyd Holdridge Holdridge's card was received on authentication by Wilbur Mander, who testified he told Holdridge that some of the employees would like to see if they could get a union in and asked if Holdridge wanted to sign up. Holdridge returned his signed card some 2 hours later. Holdridge, who openly professed strong antiunion sentiments, testified that Mander told him they wanted to get 100 percent of the employees signed up, that he did not read the card, and that he "thought" or "understood" that there was to be a vote on whether the union got in. That belief, however, was not based on anything Mander told him but on his prior experiences with unions. Though Holdridge admitted he filled in all blanks on the card, he testified he did not look at and did not see the Union's name on it. Albert Rykbost Rykbost's card was received on authentication by John Hotel, who testified he told Rykbost it was a union card and asked whether Rykbost would like to join. Some time later Rykbost returned his signed card with all blanks filled in. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rykbost testified that when Hotel asked him to sign, he inquired whether signing would mean he was in the Union. Hotel replied that it did not and that it meant only that if enough cards were signed, the Union would come in and explain to the employees the benefits the Union could give. Rykbost stated he was in no hurry to sign but that if the rest of the employees signed, he would go along with them.3 Rykbost kept the card for a couple of hours and after again discussing the Union with Hotel, he signed the card and delivered it to Hotel. He admitted that he filled in all the blanks and that the words Textile Workers' Union were on it as well as the other information. It is also to be noted that none of the above signatories made any attempt to disavow their cards or requested either the solicitor or the Union to return the cards. Three of them (Lonneville, Hoover, and Rykbost) were among the 12 signatories who refrained from clocking in to work while the demand for recognition was being made. Lonneville and Rykbost testified they stayed out because John Hotel stated that those who signed the blue (union) cards could not go in, and they did not clock in until John Hotel came out and motioned to the group that they were to come in.' Concluding Findings Recent Board decisions leave without foundation Respondent's contentions concerning the validity of the authorization cards. Thus, in Levi Strauss & Company, 172 NLRB No. 57, and McEwen Manufacturing Company, 172 NLRB No. 99, the Board restated at length and reaffirmed the principles which it applies in determining the validity of such cards and which , so far as here relevant, may be briefly summarized as follows: The central inquiry in determining the effect to be given authorization cards is whether the employees by their act of signing clearly manifested an intent to designate the Union as their bargaining agent . The starting point, in assessing that intent, is the wording of the card. Where a card on its face clearly declares a purpose to designate the Union, the card itself effectively advises the employees of that purpose , particularly where, as here, the form of the card is such as to leave no room for possible ambiguity. An employee's thoughts (or afterthoughts ) as to why he signed a union card, and what he thought that card meant, cannot negative the overt action of having signed a card . Cf. Joy Silk Mills v. N.L.R. B., 185 F.2d 732, 744 (C. A. 5). An employee who signs such a card may perhaps not understand all the legal ramifications that may follow his signing, but if he can read he is at least aware that by his act of signing he is effectuating the authorization the card declares. To assume that the employee does not intend at least that much would be to downgrade his intelligence or to charge him with irresponsibility, neither of which the Board is willing to do. In the case of clearly expressed authorization cards, as in the case of other signed instruments , there is no valid 'Rykbost made no claim that Hotel represented that all other employees had signed cards. 'Though a conflict developed on the collateral issue whether Sherman also informed some of the employees they should go in to work, Roger Anderson's testimony was corroborative of Sherman that the latter spoke to a group which included at least him and Paul McCord . Though the point is largely immaterial, I credit Sherman 's testimony to the extent so corroborated. basis in reason or law for denying face value to the signed cards, absent affirmative proof that the signing was a product of misrepresentation or coercion.' The present record is devoid of evidence of coercion and there is also nothing which amounts to substantial misrepresentation . Rykbost's testimony concerning Hotel's representations did not reflect such a material misrepresentation as would invalidate the card . Thus in Gordon Manufacturing Company, Inc., 158 NLRB 1303, 1308, there was testimony that the solicitor informed an employee that signing the card meant the Union would come and talk with the employees . The Board adopted the Trial Examiner' s finding that such a statement did not constitute misrepresentation sufficient to vitiate the card. Neither Rykbost's testimony nor that of Respondent's other witnesses contained any indication that was here "such a `hard sell' as would overcome the fact of signing a clearcut authorization card ." N.L.R.B. v. Southbrigde Sheet Metal Works, 380 F .2d 851 , 855 (C.A. 1). Thus there was no showing here of "fairly strong evidence of misrepresentation" which is required in adjudging such cards to be invalid. Id. Hoover's testimony (including the offer of proof) also failed to establish a material misrepresentation . Thus in Merrill Axle and Wheel Service, 158 NLRB 1113, 1114-15, the Board rejected the Company's contention that four cards were invalid because the solicitors made an untrue representation that most or a majority of the employees had already signed and because the employees in question would not have signed except for the misrepresentation . See also N.L.R.B. v. Cactus Petroleum Inc., 355 F.2d 755 (C.A. 5). Though a temporary aberration in the course of the Board law appeared in I.T. T. Semi-Conductors , Inc., 165 NLRB No. 98,6 the Board soon corrected its position in G & A Truck Line , Inc., 168 NLRB No. 106 . The Trial Examiner there rejected the cards of two employees because they were signed in reliance on what he found to be the "substantial and critical misrepresentation" that everyone else had already signed. The Board, however, found that the cards were to be counted toward the Union' s majority, stating that: Contrary to the Trial Examiner, the Board has held, with court approval, that statements of this type are immaterial in determining the validity of authorization cards, even when signed in reliance thereon. Such statements are harmless sales talk or puffing, which do not operate "to overcome the effect of . . . [the employees'] overt act of signing." I therefore conclude and find on the entire evidence that when the request to bargain was made on April 1, the Union held valid authorizations from 14 employees, or more than a majority of those in the unit. Evidence concerning a subsequent change in heart did not affect the majority which existed when the request was made but is 'The failure of some of the signatories to read the cards did not vitiate them, particularly since the signatories were aware that the card was a union card or was to obtain union representation. McEwen Mfg Co., supra Claims by some of the signatories that they did not even see the Union's name on the card did not inspire confidence in their testimony since the Union's name appeared in large type across the top of the card and was repeated twice more in the brief text of the authorization `The Board held that an authorization card secured upon a false representation of existing majority "can be rendered invalid only upon proof that it would not have been subscribed but for the erroneous representation or that the misrepresentation operated coercively by putting signers in fear of majority reprisal." REDMOND PLASTICS, INC. 101 considered below on the question of good -faith doubt. C. The Issue of Good-Faith Doubt The issue of good-faith doubt turns largely on what happened at the 7:30 meeting when Redmond was requested to recognize and to bargain with the Union. Also relevant under Respondent's theory was a subsequent shift of employee sentiment (see fn . 11, infra) of which Redmond was informed. When Lamb and Sherman arrived at the plant shortly before 7:30 on April 1, a group of 12 employees was waiting outside (the Hotels, Mander, Hubright, Helen Lonneville, Jeanne O'Connor, Paul McCord, Albert Rykbost, Elsie Van Hoover, Irene Hermanet, Roger Anderson, and Roberta Raup). Sherman and John Hotel told various employees that those who signed blue (union) cards should not go in and Lamb requested the two Hotels and Mander to go in with him and Sherman as a committee and to act as witnesses when recognition was requested. When Redmond arrived around 7:30 Lamb and Sherman and the committee followed Redmond into the shop while the other employees remained outside without clocking in. The testimony of Lamb and Sherman may be summarized as follows: They introduced themselves as representatives of the Union and informed Redmond they ,represented a majority of the employees and were ready to establish a majority by card proof. They asked whether Redmond would like to check the cards and he said he would. Lamb handed some 16 cards to Redmond ^ who looked through them and commented that one of the signatories (Stephen Young) was a part-time employee. Lamb asked whether Redmond found the signatures to be authentic and Redmond replied that he thought they were. Lamb stated that if Redmond needed further proof of majority he could look into the shop and see that there was no one in the plant. On Lamb's further inquiries Redmond agreed he believed the Union represented a majority and agreed he would recognize the Union. They discussed a meeting for negotiations and agreed on April 4. During that discussion Redmond looked through the cards again and commented on his assumption that the committee present would be sitting with the Union in the negotiations. Lamb suggested that there should be an interim agreement to cover the understanding as reached and Redmond agreed. Sherman thereupon left to procure a writing tablet from Lamb's car and the committee and the other employees punched in to work.' When Sherman returned, Lamb composed in longhand a draft of a recognition agreement, reading it to Redmond as he went along . Redmond found the language acceptable but stated that the negotiations would work both ways, that there would be no more free coffees for employees and no more short days or free paid time on inventory days. Redmond agreed to have his secretary (Linda Utley) type up the draft but stated he would have to talk with Chicago officers of the company (or of Western Felt) before he signed it. They agreed to meet at 10 a .m., and the draft was handed to Utley to be typed. As typed by Utley and produced at the 10 o'clock meeting, the agreement read as follows: I do hereby recognize the Textile Workers Union of America, AFL-CIO as the bargaining agent of the employees of Redmond Plastics, Incorporated. Proof has been shown me of a signed majority of my employees on this day April 1, 1968. I agree to negotiate with the Textile Workers Union of America A. F. L. - C. I. O. All conditions concerning the employees employment will remain status-quo until an agreement is reached between the two parties . April 4, 1968 is the first day of negotiations between the Textile Workers' and Redmond Plastics, Incorporated. The 10 o'clock meeting was brief. Lamb and Sherman testified that Redmond informed them the agreement had been typed but because of the time zone differential he had been unable to contact the Chicago officers and he would rather talk with them before signing. He said nothing about an attorney at the time. Lamb and Sherman testified that when they returned again at 4 p.m. pursuant to agreement, Redmond informed them he had talked with his attorney in Chicago (whom he finally identified as Philip Carter) and had been advised to seek a consent election agreement. They inquired whether he doubted the Union's majority and he replied he did not . Sherman inquired whether Redmond informed his attorney of everything that had taken place that morning, including looking at the cards and agreeing to recognize the Union, and Redmond stated that he had. Redmond's testimony concerning the 7:30 meeting was in direct conflict with Lamb's and Sherman's mainly in denying that he acknowledged the Union 's majority and that he agreed to recognize and to negotiate within the Union . In other respects Redmond either admitted or failed to deny significant portions of their testimony. Thus Redmond admitted that the Union representatives claimed a majority, showed him a handful of authorization cards, and asked him to negotiate. He admitted that he glanced through as many as five at the top of the stack and called attention to the card signed by a part-time employee and that he possibly looked at the cards twice. Indeed, Redmond admitted on cross-examination that he informed Lamb , "[I]t looked like you have a majority," and that though he did not count the cards, he based that conclusion on the size of the stack. Redmond also admitted the Union representatives informed him the employees were outside and had not gone to work , though he testified he knew the whole force was not outside because he had seen some of them at work.' Redmond admitted further that he was questioned concerning the authenticity of the cards and, though he could not recall his response, he admitted he raised no question except in the case of Young , the part-time employee. Indeed, Redmond testified specifically that it was not the cards he doubted but that his difficulty lay "in trying to comprehend how the people that [he] knew so well would get involved." 'Though Lamb and Sherman testified that up to this point the meeting lasted some 30 minutes, the timecards of II employees, including the committee showed that they clocked in at approximately 7:38. Their error may have laid in including the time they remained in the office during preparation of the interim agreement, next referred to. Respondent also attacks Sherman's claim that he went outside , but Anderson's testimony, referred to in fn . 4, supra, corroborated Sherman. 'Documentary evidence established that only three employees had clocked in at that time and that one other was at work who did not punch the time clock . Against this there were 12 (including the committeemen) who had not clocked in and there were three others who were not due to report until a later time. Roberta Raup, who waited with the outside group, was on sick leave on April l and did not clock in with the other 11. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Redmond also admitted that there was discussion of preparing a recognition agreement and that he agreed his secretary could type it. He testified he was not present during all the time when Lamb was writing out the rough draft and he could not remember whether Lamb read portions of the draft to him as it was being written. Redmond denied that he agreed at any time to sign the agreement and, denying that he agreed to recognize the Union, testified he stated that he recognized Lamb and Sherman to be representatives of the Union. Redmond testified further he informed Lamb and Sherman he was not ready to negotiate, that he needed to contact other officers of the Company and to get some legal advice (though he had no attorney at the time) because he had not had problems with unions before. It was therefore agreed that there would be a meeting on April 4 and that Lamb and Sherman would return at 10 a.m., to give Redmond an opportunity to call other officers in Chicago. Redmond testified finally that his secretary brought him the typed draft of the recognition agreement after Lamb and Sherman left but he did not look at it and did not read it and directed her to keep it until the union representatives returned. He first read the agreement when Lamb and Sherman returned at 10 a.m. and asked him to sign it. Redmond informed them he would not sign anything or do anything until he had legal advice, and they agreed to meet again at 4 o'clock at which time he hoped to have a lawyer. Respondent called Wilbur Mander concerning the first segment of the 7:30 meeting but his testimony was of scant value in corroboration of Redmond. Not only did Mander reflect a disposition to admit less of a damaging nature than Redmond did, but his testimony was substantially impeached on a number of significant points by a prior written statement which he gave Lamb on April 3. Thus Mander testified that Redmond looked at the cards only once, that he could not state "definitely" whether anything was said about a majority and could not say "definitely" that there was any discussion of whether the cards were authentic. On cross-examination , however, Mander admitted that his written statement contained the following language: Don Lamb offered card proof of a majority and Redmond looked at the cards. Don Lamb asked Redmond if he thought the cards were authentic and he said yes. Mander testified further that on the question of recognizing the Union, Redmond's statement was that he realized they were union representatives, and so far as Mander knew what Redmond agreed to was to talk with them about the possibility of a union at a meeting on April 4. Mander's piror statement contained the following sentence: I can't recollect all the conversation that took place, but do remember setting a date for negotiations which was Thursday, April 4, 1968. In acknowledging that his statement contained that language, Mander commented, "Negotiations, a meeting, same thing." Respondent sought unsuccessfully to rehabilitate Mander on redirect examination by attacking his prior written statement. Mander testified, however, that Lamb explained he needed a statement "of what went on" in support of a Board hearing because Redmond had "said a lot of different things." Thereupon, answering Lamb's questions as Lamb wrote, Mander "Just told him what I thought went on." Mander read over the statement before he signed it and pointed out nothing that was wrong in it.' Concerning the preparation of the interim agreement, Respondent called Linda Utley, Redmond's secretary, who testified that after Redmond introduced the union representatives to her there was discussion of a meeting to be held on April 4, and further discussion of an agreement to be put in writing. At Redmond's suggestion Lamb and Sherman wrote out in longhand an agreement on yellow lined paper . Although it was read aloud between Lamb and Sherman, Redmond was present only in the beginning and it was not read to him though he might have heard a few words of it. Utley typed up the agreement after Lamb and Sherman left, gave both the rough and finished drafts to Redmond, who kept them, and she did not see them again. On the foregoing record as I am unable to credit Mander's testimony, I find Redmond's testimony to be without corroboration concerning the first segment of the meeting. On the other hand the testimony of Lamb and Sherman was not only mutually corroborative but it was confirmed in major respects by Redmond's admissions and by his failure to deny the statements attributed to him concerning the assumed participation of the employee committee in the negotiations and concerning his view that the negotiations should work both ways. I therefore conclude and find that Redmond conceded the fact of the Union's majority after checking the cards submitted to him and after questioning the authenticity of only one card. I find further that Redmond otherwise expressed no doubt either on authenticity or majority and, moreover, that means were immediately at hand for resolving any unexpressed doubts, i.e., checking on the number of employees who refrained from working in support of the recognition demand. I find further that Redmond agreed to recognize the Union and agreed to a meeting for negotiations on April 4.10 Concerning the 4 p.m. meeting, Redmond testified that in the meantime he had talked with Chicago officers and with Philip Carter, whose law firm represented Western Felt, and that he informed Lamb and Sherman that, "[W]e had a good-faith doubt as to the validity of the cards and we would like to have a secret ballot [election]." They inquired again whether he would sign the interim agreement and he replied he was not going to sign anything or do anything except with legal advice, and his advice was to ask for an election. Redmond denied telling them he did not doubt they represented a majority of the employees and denied telling them his attorney instructed him to deny his earlier conversations with them. 'The giving of the statement otherwise exposed Mander's lack of reliability as a witness in that he testified elsewhere he made no attempt to procure return of his card from the Union because, "[W]e couldn't get in contact with them ." The opportunity plainly existed on April 3 when he gave Lamb a statement which fully supported the Union 's position on the 7:30 meeting. "By knowingly permitting the drafting of the interim agreement Redmond lent further support to the view that recognition was granted, for if he had refused recognition or questioned the Union's status, there was no point in the union representatives staying on and preparing a useless paper acknowledging a recognition which Redmond had allegedly refused to accord. Furthermore, Redmond's attempts to disclaim knowledge of the contents of the interim agreement were exposed by Utley's testimony that Redmond was present at least at the start and that he kept the typed draft. I credit the testimony of Lamb and Sherman that Redmond found the draft acceptable. REDMOND PLASTICS, INC. 103 Respondent also called R. J. Chappelow, personnel director of Western Felt, who testified that around 11:15 Chicago time (12:15 EST) he received a call from one Joseph Mansfield, whom he knew as a member of the Union's Chicago Joint Board. Mansfield reported that the employees at Redmond's were on strike and requested that Western Felt apply some influence on Redmond to give the Union a voluntary recognition agreement. Though Respondent assigns that testimony as inconsistent with claims by Lamb and Sherman that Redmond had already agreed to recognize the Union, the inconsistency evaporates when the time factor is considered. Thus at 10 a.m. New York time (9 a.m. Chicago time), Redmond had already informed Lamb and Sherman that he proposed to talk with the Chicago officers before he actually signed the agreement. Respondent also offered testimony by Redmond and Carter concerning Redmond's calls to Chicago, culminating in a call from Carter, who advised Redmond on the position he should take. Redmond testified that he first called Fred Sheran (secretary and treasurer of Respondent and comptroller of Western Felt) some time after 9 a.m., told Sheran what had happened and stated that he wanted some legal advice. Sheran said he would call back but did not do so until after the 10 a.m. meeting with Lamb and Sherman. On that call Sheran informed Redmond he would be hearing from a lawyer, and around 11 or 12 o'clock Redmond got a call from Philip Carter, who asked what had happened. Redmond testified that he reported to Carter to the best of his knowledge, covering the fact of the production of the cards and the the fact the employees had not come in to work. Carter inquired whether Redmond checked the cards individually and Redmond replied he had not. Carter also asked whether Redmond knew how they had been obtained and Redmond again replied he did not. Carter informed Redmond that from his experience he had discovered that cards were doubtful because of doubt as to how they were obtained. Though Redmond knew nothing himself of those circumstances and could therefore tell Carter nothing, Carter advised him that he should inform the Union representatives he had a good faith doubt of the authenticity of the cards and would like a secret ballot election. Carter testified that at Sheran's request he called Redmond, who informed him that two union representatives and three employees had called on him, claiming majority representation by the Union and supporting their claim by producing authorization cards. Redmond also reported that some of the employees did not report to work and had "stood around outside." Redmond did not state, however, and Carter did not inquire whether the majority remained outside. Carter asked whether Redmond counted the cards and he said he had not done so and he also answered negatively Carter's questions as to whether he had read the cards, whether he looked at them individually, and whether he compared the signatures with other company records. Redmond also told Carter about the agreement the Union representatives wanted him to sign and read it to Carter over the telephone. Carter inquired what the purpose of the meeting was, referred to in the agreement, and Redmond stated it was to talk further about the union matter. Carter explained to Redmond that certain courts had taken the position that authorization cards in and of themselves were unreliable evidence of majority status and explained further certain circumstances which had developed in his experience with respect to the use of authorization cards, i.e., that in some instances the cards merely authorized the Union to seek an election and in other instances they authorized the Union to negotiate on behalf of the signatories. Carter continued that because "we did not at that point know what the inscription was on the card, it seemed to me that it was doubtful in our minds as to what purpose the cards had been signed for, and, under the circumstances, it established at least, a basis for a position of good-faith doubt." Carter explained what courses of action might be followed if a representation petition were filed and finally advised Redmond that when the union representatives returned, he should indicate to them that he had a good-faith doubt that they represented a majority of the employees in an appropriate unit. As to whether Redmond himself expressed any doubt concerning a majority, Carter testified he believed Redmond did so in that "he indicated that as far as he was concerned he could not understand how a majority of his people could have been involved in a matter of this type." Carter admitted on cross-examination, after reading a card, that he would have no difficulty in ascertaining the purpose of the card from the language itself, but he testified that nevertheless it might be possible that the circumstances surrounding the execution might lead a signatory to believe something entirely different from what the card said. Respondent also offered, as confirming or reaffirming Redmond's alleged majority doubts, evidence concerning a wave of sentiment against union representation which began within a day of the bargaining request and which extended even to members of the employees committee." Redmond testified that around 6 p.m. on the evening of April 1, Irene Hermanent came to his home and, claiming to speak for some of the girls, informed him they did not want the Union and wanted to know how they could get their cards back. Redmond replied that the only solution he knew was by a secret ballot election to be held by NLRB. Mander testified that on the morning of April 2, he and the Hotel brothers, after talking the matter over, went in and talked with Redmond about the possibility of getting their cards back, informing Redmond that some of the employees were not quite sure they wanted a union. Redmond informed them he did not know what could be done except for the possibility of a vote in a Labor Board election. Redmond in turn reported to Carter on the afternoon of April 2 that several employees had informed him they no longer wished to be represented by any union. ' 3 Finally the record contains a series of letters dating from April I through June 8, but as they were devoted only to maintaining the respective positions of the parties, they threw no further factual light on the issue of good-faith doubt. The same is true concerning a visit by Lamb and Sherman on April 4, when Redmond refused their request to negotiate and referred them to Carter's letter to Lamb of April 2 as stating his position. In the "Though much of the testimony was taken on an offer of proof subject to a later ruling on admissibility, I find that it is relevant to Respondent's theory of the good-faith doubt issue and I now receive it in evidence. "There was also testimony that John Hotel and Mander refused requests by Lamb on the evening of April I that they keep the employees from reporting to work the next morning. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meantime Carter had also advised Redmond there was no longer any purpose in a meeting because Redmond's reports of defections in union support put in further doubt the majority status of the Union. Concluding Findings As found above, Redmond expressed no doubt at the 7:30 meeting concerning the fact of the Union's majority and he agreed to recognize the Union and agreed on a date to begin negotiations. Even if it were assumed that Redmond entertained unexpressed doubts at the time , there were ready means available by which he could have resolved any doubt on the spot. Thus a checking of the signatures against office records would have required at most only a few minutes" and even less time was needed to check on the physical number of employees who were supporting the recognition request by refraining from work . Cf. Harry's Television Sales and Service , 143 NLRB 450, 455. Indeed Redmond could have had no real doubt on the latter score for he admittedly saw some of the employees at work and therefore knew or should have known that only four of them had come in. Moreover, on authenticity Redmond's own testimony showed that he did not in fact doubt the cards but that his difficulty lay in trying to understand how his employees could get involved with, or why they wanted, the Union. The subsequent calls to Chicago and the advice received from Carter could not serve to create for Redmond a good-faith doubt when none existed and none was claimed at the time recognition was requested . Furthermore Redmond admittedly informed Carter that the employees had not come in to work and that his doubt lay in his inability to understand how his employees could get involved in such a matter." Beyond that all claims of doubt were patently synthetic ones, suggested by Carter on the basis of his experience in other cases . But Carter's advice did not fit the facts of the present case, for the circumstances of the recognition meeting had left no basis for asserting a good-faith doubt of majority. Even the most adroit attempts at locking the stable door would come too late under the evidence here, for Redmond had already given the horse away. Respondent argues, however, that an employer may decline to recognize a union and insist on an election even if he knows of the Union's majority at the time of the demand for recognition, citing in support certain language from Agway Petroleum Corporation, 170 NLRB No. 95. The factual situation in the Agway case, however, is distinguishable from that in the present case in that the information concerning the Union's majority there reached only to a subordinate and was not passed on to the superior who replied to the recognition demand. The subordinate's knowledge was thus found to be not in actuality "Company knowledge." Furthermore, the language which Respondent relied on was prefaced by a citation of judicial authority which held to the contrary that even in absence of any other showing of antiunion animus or other violations of the Act, employers may be found guilty of violating the statutory command that they recognize and bargain with the union which represents a majority of their employees. See, e.g., N.L.R.B. v. Tom's "Redmond admittedly had no difficulty in spotting the card of one signatory who was not properly within the unit. 'This amounted in effect to the familiar lament, "How could they do this to me?" Supermarket, Inc, 385 F.2d 198 (C.A. 7); Local 1179 Retail Clerks Union v. N.L.R.B., 376 F.2d 186 (C.A. 9); Snow & Sons v . N.L.R.B., 308 F.2d 687, 692-694 (C.A. 9). In the latter case the court pointed out the pertinent distinction in the following language: Proof of an improper motivation for insisting upon a Board election warrants the inference that the employer, when it refused to recognize the union, did not have a reasonable doubt as to the union 's majority status . But proof of such motivation is not essential in order to make such a finding if lack of a reasonable doubt is established in some other way. [Emphasis supplied.] The court applied that rule later in Local 1179, supra, and held further that: [W]hen the employer makes his own examination of the authorization cards and is convinced of their identity and validity, as the Trial Examiner found that Serpa had done, a subsequent refusal to recognize the union is adequate affirmative evidence of a lack of good-faith doubt as to majority status. See also Greyhound Terminal , 137 NLRB 87, 91, 92, enfd. 314 F.2d 43 (C.A. 5); Fleming & Sons of Colorado, Inc., 147 NLRB 1271, 1273. The true rule is, as the Board held in the latter case, that an employer has no absolute right to insist upon a Board directed election and that (quoting from Snow & Sons, 134 NLRB 709, 710-711): Where, as here, the Employer entertains no reasonable doubt either with respect to the appropriateness of the proposed unit or the Union's representative status, and seeks a Board-directed election without a valid ground therefor, he had failed to fulfill the bargaining requirements under the Act. Also without merit is Respondent's further argument that in any event it could legally withdraw recognition when it subsequently learned the Union lost its majority status, citing Braymen-Meinking Contractors Inc., 171 NLRB No. 57. The principle which is controlling here is that an employer's doubt is to be determined as of the time of the request and the refusal to recognize. See Snow & Sons v. N.L.R.B., supra, where the court added: Once it is shown that the employer entertained no genuine doubt of this kind at the time it refused to bargain, an unfair labor practice has been established. The fact that, as it later developed , there were grounds which might have created a genuine doubt at that time is then immaterial. See also the Board 's decision on remand in John F. Serpa, Inc., 166 NLRB No. 66, where the Board ordered the employer to bargain even though during the intervening time and subsequent to the recognition request two employees voluntarily withdrew their cards and destroyed the Union's majority. To summarize , I conclude and find on the entire evidence that at the time the Union made its request to bargain on April 1, Redmond entertained no genuine doubt of the Union's majority and Respondent was therefore not entitled to insist on a Board-directed election. I conclude and find further that the subsequent change in employee sentiment did not affect the Union's majority as of the critical time the request for recognition was made nor did it serve to support alleged claims of doubt at that earlier time. REDMOND PLASTICS, INC. I therefore conclude and find that at all times on and after April I, Respondent refused to bargain with the Union within the meaning of Section 8(a)(5) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees employed at Respondent's Marion plant, excluding all office and clerical employees, guards, supervisors and professional employees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times on and after April 1, 1968, the Union has been the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. 3. By refusing to bargain with the Union on and after April 1, 1968, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action as outline below which I find to be necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act I hereby issue the following: RECOMMENDED ORDER Redmond Plastics Inc., its officers, agtts, successors and assigns shall: 1. Cease and desist from refusing to bargain with Textile Workers Union of America, AFL-CIO, as the exclusive representative of its employees in the unit herein found appropriate and in any like or similar manner interfering with, restraining or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action- (a) Upon request bargain with Textile Workers' Union of America, AFL-CIO, as the exclusive representative of its employees in the unit herein found appropriate and embody any understanding reached in a signed agreement. (b) Post in its offices and plant at Marion , New York, copies of the attached notice marked "Appendix B."" Copies of said notice on forms to be provided by the Regional Director for Region 3 , shall, after being duly signed by Respondent's representative , be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. "in the event this Recommended Order be adopted by the Board the 105 (c) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.16 words Decision and Order" shall be substituted for the words, "the Recommended Order of a Trial Examiner" in the notice "In the event this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A Employees in Unit 1. Roger D . Anderson (C) 2. Verna E. Chapman (C) 3. Stephen V. Crane 4. Bonita C. Dibble (C) 5. Irene G. Hermanet 6. Lloyd G. Holdridge 7. Abram J. Hotel (C) 8. John J. Hotel (C) 9. Gary O. Hubright (C) 10. Florence N. Johnson 11. Arthur E . Lonneville 12. Helen O'Connor Lonneville (C) 13. Wilbur T . Mander (C) 14. Paul D . McCord (C) 15. Jeanne G . O'Connor (C)' 16. Roberta A. Raup (C) 17. Albert F . Rykbost (C) 18. Elsie Van Hoover (C) 19. Ross J Van Slyck 20. James A. Wing 21. Mark A. Wayman e,1 R ectte APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain with Textile Workers Union of America, AFL-CIO, as the exclusive representative of our employees in the bargaining unit and WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL bargain collectively upon request with, Textile Workers Union of America, AFL-CIO, as the exclusive representative of our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment and other conditions of employment and if an understanding is reached embody such understanding in a signed contract. The bargaining unit is. All production and maintenance employees employed by us at our Marion plant, excluding all office clerical employees, guards, supervisors and professional employees as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of Textile Workers Union of America, AFL-CIO, or any other a 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization except to the extent provided in Section This notice must remain posted for 60 consecutive days 8(a)(3) of the Act. from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice REDMOND PLASTICS, INC. or compliance with its provisions, they may communicate (Employer) directly with the Board's Regional Office, Fourth Floor, Dated By The 120 Building, 120 Delaware Avenue, Buffalo, New (Representative) (Title) York 14202, Telephone 842-3112.