Missouri Beef Packers, Inc.

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Missouri Beef Packers, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and The International Brotherhood of Packinghouse and Dairy Workers, Party to the Contract. Case 16-CA-4305 May 26, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 25, 1972, Trial Examiner Josephine H. Klein, issued the attached Decision in this proceed- ing. Thereafter, the Charging Party and the General Counsel, respectively, filed exceptions and a support- ing brief, and the Respondent filed a brief in opposition to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Missouri Beef Packers, Inc., Plainview, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommend- ed Order. I Members Fanning and Jenkins wish specifically to note that in agreeing with the Trial Examiner they find it unnecessary to, and do not, rely on her comments regarding the Respondent's obligations under Sec. 8(a)(5), not herein involved, or her conclusions regarding Board-conducted elections vis-a-vis other methods of determining employee sentiments. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner : This case was tried in Plainview, Texas, on August 9 through 13, 23, and 24, and in Kansas City, Missouri, on August 25, 1971,1 on a complaint issued against Missouri Beef Packers, Inc., Respondent, on June 29 (and amended on July 21), Except where otherwise indicated, all dates herein are in 1971. s National Labor Relations Act, as amended (61 Slat. 136, 73 Slat. 519, 29 U.S.C. Sec. 151, et seq.) ] The brief of the Party to the Contract, received on October 18, after expiration of the previously extended period for filing briefs, has been accepted and considered by the Trial Examiner. 4 The transcript of the hearing contains numerous errors , in large part pursuant to a charge filed on March 22 by Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO (hereafter referred to as the Amalgamated), alleging interference with employees ' rights in violation of Section 8(a)(1) of the Act2 and unlawful assistance to the International Brotherhood of Packinghouse and Dairy Workers (hereafter referred to as the Brotherhood) in violation of Section 8(a)(2) of the Act. All parties were afforded full opportunity to be heard, to present oral and written evidence , and to examine and cross-examine witnesses . The parties waived oral argument and after the hearing all four parties filed briefs .3 Upon the entire record,4 observation of the witnesses, and considera- tion of the briefs, the Trial Examiner makes the following: FINDINGS OF FACT I. PRELIMINARY FINDINGS A. Respondent is, and has been at all times material herein, a Missouri corporation, with its principal offices in Amarillo, Texas. It is engaged in the business of slaughter- ing and processing beef and beef products at several locations, including a plant in Plainview, Texas, the facility involved in this proceeding. During the 12 months preceding the issuance of the complaint, a representative period, at its Plainview facility, Respondent processed, packed, sold, and distributed directly to purchasers outside Texas, products valued in excess of $50,000. During the same period, Respondent purchased goods and services valued in excess of $50,000 from outside Texas. Respon- dent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Amalgamated (Charging Party) and the Broth- erhood (Party to the Contract) are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. The Issues The basic ultimate question here presented is whether Respondent acted unlawfully in recognizing the Brother- hood as the exclusive bargaining agent for the production and maintenance employees at Respondent's Plainview plant on March 4, and in executing a collective-bargaining agreement with that Union on March 6.5 The gravamen of the complaint is that the Brotherhood did not represent an uncoerced majority of Respondent's employees in an appropriate unit and that Respondent unlawfully assisted the Brotherhood. The complaint also alleges some relative- ly minor independent violations of Section 8(a)(1). the result of language and regional accent problems . However, no motions to correct the transcript have been filed. Most of the errors are self-evident and none are crucial to the present decision . Accordingly, the Trial Examiner has not undertaken to issue a corrective order, which would necessarily be voluminous. 5 Oral agreement was reached on March 6 and the contract was reduced to writing and signed on Sunday, March 7. 197 NLRB No. .31 MISSOURI BEEF PACKERS, INC. 177 B. The Facts 1. Preproduction relationship of Respondent and the Amalgamated The Amalgamated represents the production and main- tenance employees at Respondent's slaughtering plants in Rockport, Missouri, and Friona, Texas. It does not appear when the representation commenced at Rockport, but the Friona relationship followed a Board certification in 1968. Negotiations for a contract at Friona covered approxi- mately 3 months, with a strike in progress when agreement was reached. The expiration date of the Friona contract was December 15, 1971.6 Sometime toward the end of 1969, Respondent com- menced construction of a new, additional plant in Plainview, Texas, about 85 miles southeast of Friona. To construct the Plainview plant, Respondent hired some 150 to 200 local workers, largely unskilled laborers, most of whom are Mexican-Americans. In general, the literacy rate, in either English or Spanish, of those employees is not very high. Original plans called for production to begin at the Plainview plant around the end of 1970, but construction delays resulted in postponement of initial production until March 2, 1971. Steve R. Mauser, International representa- tive of the Amalgamated, testified that he was assigned to "keep an eye on the construction" of the Plainview plant "and look at the probability of organizing [the] plant at a future date." Pursuant to this assignment, in the summer of 1970 he spoke to representatives of Respondent in Friona. He first spoke to Robert Burns, who said that he was going to be plant manager at Plainview. Mauser said that the Amalgamated "would like to have recognition" at that plant. Burns replied that he was not authorized to do anything at that time. In the fall Mauser spoke several times to Dave LaFleur, then plant manager at Friona. Mauser said the Amalga- mated would like recognition at the Plainview plant and LaFleur said - he did not know when it was to open. According to Mauser, LaFleur said that he would give the matter "much thought and he might be able to work out something based on the Friona plant." Eventually LaFleur referred Mauser to Robert Mellinger, Respondent's nation- al personnel director. Mellinger said that the Company had not as yet come to a decision about Mauser's request but they "would still work something out as the plant nears completion." As late as January 21, Mellinger said he had not as yet made up his mind about recognition of the Amalgamated at Plainview and told Mauser to check again later. Leonard Guerrero, secretary-treasurer of Local 77 of the Amalgamated, had similar conversations with management personnel at Friona in November and December 1970. Although Guerrero testified that some of the Friona employees wanted transfers to Plainview, and the subject of transfers was apparently discussed to some extent, the evidence as a whole negatives any negotiated plan for transfers. So far as appears, there were no such transfers except for a small number of Friona employees who were sent to Plainview for the purpose of training the inexperi- enced Plainview work force . Guerrero testified that he had several discussions with Respondent's representatives in Friona, the last being with Bill Gilberts , Friona plant superintendent, around the middle of February, in the course of a grievance meeting. Concerning the conversa- tion, Guerrero testified as follows: Our conversation after settling some step two griev- ances, turned out to the effect that I asked him for recognition for the Missouri Beef plant in Plainview. ... At this time, he indicated to us that this would be an unfair labor practice due to the fact that this would be forcing the people to join the union. At that time Gilberts said that the Plainview plant would probably go into production around the end of February. Both Mauser and Guerrero testified that Respondent's representatives expressed their desire to avoid having any collective-bargaining agreement at Plainview expire simul- taneously with that at Friona. Mauser's and Guerrero's testimony was uncontradicted and was corroborated in part by Mellinger. At one point he testified that in a "half kidding" conversation with Mauser he said that the Company was "probably thinking about running that plant non-union the best [it] could or see if [it] couldn't do it that way." Sometime around the turn of the year, Mellinger consulted counsel, who said he could not "see any reason not to talk to" Mauser. Mellinger thereupon invited Mauser to have lunch with Mellinger and LaFleur in Plainview. However, according to Mellinger, Mauser did not show up and there was no subsequent communication. 2. Chronology of events leading to contract on March 6 On January 24, Respondent held a public-invited open house at the Plainview plant , in anticipation of the commencement of production, which was then expected to occur on February 23. Chester C. Green, national treasurer of the Brotherhood, attended the open house, where he met some of the employees. Thereafter, except for a week spent at his home in Kansas City, he remained in Plainview until the events here involved . During this period he spoke to several employees and apparently held informal meetings with employees in his room at the Congress Inn. A meeting was held on February 23, at which an organizing committee was selected. Since the date for the beginning of Respondent's production had by then been postponed to March 2, a further meeting of the organizing committee was scheduled for the evening of March 1. At the March 1 meeting, attended by around 10 to 15 employees, some Brotherhood authorization cards were signed and many were distributed for use in solicitation at the plant the next day. There is a conflict of evidence, discussed below, as to whether any authorization cards had been distributed before that meeting . The authorization 6 The present record contains no evidence concerning negotiations for any renewal of that agreement. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards, printed only in English, are single-purpose cards authorizing representation.7 On Tuesday, March 2, production was begun with a relatively small kill designed primarily as a training session for the employees, who had previously worked on construction of the plant. Although Lazaro Villalovos, a maintenance worker, testified that he was too busy working to distribute any Brotherhood cards, it appears that most of the production employees did very little work that day. It is clear that many cards were signed at the plant on that day. On the evening of March 2, there was a Brotherhood meeting. There is a conflict of evidence, discussed below, concerning precisely what transpired at that meeting. In any event, at 10:15 p.m., after the close of the meeting, Don Mahon, International president of the Brotherhood, telegraphed Robert Burns, Respondent' s general manager, as follows: Whereas a substantial majority of your employees have authorized our union as their collective bargaining agency we hereby request meeting with you for purpose of proving our claims and commence our negotiations. Please acknowledge. The return address was given as the Brotherhood's office in Des Moines, Iowa. The following afternoon Burns tele- graphically replied as follows: Our company is willing to meet with you at 9:00 a.m. Thursday, March 4, 1971, at the Congress Inn in Plainview, Texas to discuss your claim of representa- tion. Unless, I hear otherwise I'll assume this is satisfactory. On the morning of Thursday, March 4, Mahon and Green met with Burns. The Brotherhood handed over its authorization cards, which the company representatives were to take back to the plant to check against Respon- dent's records. There is a conflict of evidence, discussed below, concerning how many cards were turned over and whether they were counted at that time. It is clear, however, that no copies or records were made or kept by either Respondent or the Brotherhood. Upon returning to the plant, Bums and Mellinger turned the authorization cards over to Jerry Roberson, personnel manager at Plainview. As is more fully discussed below, Roberson testified to his having checked the cards against the Company's seniority list and having "spot checked" the signatures. Thursday afternoon, Mellinger telephonically advised the Brotherhood that the card check had satisfactorily established majority and that the Company was willing to commence contract negotiations the following morning. That evening, a union membership meeting was held at which a negotiating committee was selected, consisting of Mahon and Green together with essentially the same employees who had composed the organizing committee. Contract negotiations were conducted on Friday, March 5, from 9 a.m. until around midnight or later. Sometime 7 The heading on the front of the card is, in large type: "AUTHORIZA- TION TO NBP&DW." The text reads: "I; , authorize the National Brotherhood of Packinghouse and Dairy Workers (NBP&DW) to represent me in collective bargaining." The back of the card reads: "This card will be used to secure recognition and collective bargaining for the purpose of negotiating wages, hours, and working conditions. YOU HAVE THE before noon, Mahon obtained Respondent's agreement that the employees could be invited to and be able to attend a Brotherhood meeting on Saturday afternoon. On Friday afternoon, at the plant, the employees were informed that they were to work at construction for 8 or 10 hours on Saturday, March 6. On Saturday, they started to work at 7 a.m. and contract negotiations resumed at 9 a.m. During the employees' coffeebreak, at or around 9:30 a.m., Max Davis, construction superintendent, informed the employees that a union meeting was to be held that afternoon and displayed a notice thereof which had been posted in the plant. Virtually all the employees clocked out at noon and attended the Brotherhood meeting commenc- ing at 1 p.m. At the meeting, the progress of contract negotiations was reported, primarily by Mahon, who spoke in English. However, Lazaro Villalovos, Rabel Ray Ramos, and active employee solicitors, interpreted and themselves answered questions in Spanish. Although there is some conflict in the evidence, it appears that the employees generally approved the contract terms which had been agreed on to that point and authorized the committee to continue negotiating to a final contract. At the March 6 meeting, three-part blue cards were distributed and some were executed. These cards consisted of an authorization for representation and acceptance of membership, an authorization for the checkoff of union dues, and an application for union insurance benefits. There is a conflict of evidence as to when such blue cards were first distributed and as to whether any green authorization cards were executed and/or turned in at the March 6 meeting. These conflicts are discussed below, in connection with determining the Brotherhood's majority status. The contract negotiations, which were suspended for the duration of the union meeting, were then resumed and agreement was reached on the terms of a collective- bargaining agreement on the evening of Saturday, March 6. The agreement was reduced to writing and signed on Sunday, March 7. 3. Postcontract events On or about March 9, the Amalgamated instituted an organizational campaign, beginning with handbilling, followed by personal contacts and union meetings. The Amalgamated filed the present charge on March 22. Some authorization cards were obtained, but the record does not contain any indication of the number. Some of the employees who testified for the General Counsel in the present case indicated that they had signed Amalgamated authorization cards because of dissatisfaction with the Brotherhood. Among those signing cards for the Amalgamated was Lazaro Villalovos. Villalovos, a leader in the Brotherhood's campaign, had been elected vice president of the Brother- RIGHT UNDER FEDERAL LAW TO ORGANIZE AND JOIN A UNION. By joining the National Brotherhood you have the support of one of the world's most progressive Unions." These cards will hereafter generally be referred to as "green cards," to distinguish them from a set of three-part blue cards also solicited by the Brotherhood. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent maintains that these employees were properly includable in a production bargaining unit as of March 4, when recognition was granted. Mellinger testified that firm commitments of production jobs had been made to those employees. Max Davis, however, who had served as construction superintendent for the Rockport, Friona, and Plainview plants, said that the procedure had been the same at all three locations and proceeded: Now, they was told they would get transferred. Now they wasn't promised a job, no seniority or nothing at first, but they was to have a job when the plant went into production. Q. In other words, they could transfer if they elected to do so? A. Correct. The evidence shows that it-was expected that all of the original construction workers who wanted to would eventually be given jobs in production or maintenance. However, the transfers were contingent upon the employ- ees' no longer being needed for construction and upon there being a need for the employees in production. According to Mellinger, all employees who had signified their desire for production jobs were transferred to the production payroll as of March 2, acquiring seniority in production and receiving the general wage increase put into effect for production workers as of that date. The general wage rate at that time went to $2.10 per hour, which constituted a substantial increase for many employ- ees. Apparently, however, some employees were already receiving that much or more. It does not appear whether any employees received less than $2.10 per hour after March 2. The evidence also shows that at least some of the persons who remained on construction work after March 2 did arrange for the purchase of special clothing required for production workers. It thus appears that both Respon- dent and the employees contemplated that all employees who wanted to would eventually perform production work. On the other hand, the evidence is clear that a substantial number of such employees never did transfer to production work. There is in evidence a list of "Construc- tion Employees who became Production and Maintenance Employees" (G.C. Exh. 372). This list, prepared by Respondent, contains the names of 169 employees as of March 2-6. Of these, 22 had not transferred to production by July 19. Of the 22, 16 were terminated without ever having transferred to production work.13 At first blush, there is considerable appeal to a contention that employees who had elected to take production jobs when available would have a greater "community of interest" with the production employees than with the "permanent" construction workers and equitably should have a full voice in determining the terms 13 Eight of the sixteen employees who had been terminated without ever performing production work had been subject to checkoff of union dues. In addition, five employees who had not commenced production work by July 19 were having Brotherhood dues checked off on that date. 1' The situation is distinguishable from that of employees temporarily performing duties outside the unit in which they have previously worked and to which they will return . Cf. Anaconda Aluminum Company, 133 NLRB 1123. 15 R. B. Garza, D. Ortiz, V. Rangel. and conditions of their prospective employment. But the actual history of the employees here involved confirms the wisdom of adhering to the established Board rule that "A unit determination must depend on the present duties of the employees, not on speculation as to future changes in work assignments." Brooklyn Borough Gas Company, 110 NLRB 18. See also Certain-Teed Products Corp., 102 NLRB 1324; Elliott Company, Crocker-Wheeler Division, 106 NLRB 1033, 1036.14 Accordingly, the Trial Examiner finds that those employees who had not commenced production work when recognition was granted are to be excluded from the unit, along with the "permanent" construction workers. c. Size of unit The General Counsel introduced into evidence two employee lists prepared by Respondent which should identify the employees within the bargaining unit on March 4: (1) a letter from Mellinger to Respondent's counsel purporting to contain a "list of employees as of March 2, 1971, against which the membership cards were checked" (G.C. Exh. 370); and (2) a list of "Construction Employees who became Production and Maintenance Employees," showing, as to each employee, the date of hire, the "date of physical transfer to P&M," the date of termination if any between March 12 and July 19, and the union dues checkoff status (G.C. Exh. 372). In addition, Respondent introduced the seniority list against which Roberson testified he had checked the authorization cards presented by the Brotherhood on March 4 (Resp. Exh. 4). Although it would appear that General Counsel's Exhibits 370 and 372 should theoretically be identical, there are several discrepancies between them. Without detailed analysis, it may be stated that No. 370 lists 176 employees, while No. 372 shows a total of 169 as of March 4. For the purpose of this discussion, General Counsel's Exhibit 370 will be taken as the point of reference, since Roberson testified that it was compiled from the seniority list which he used in checking the cards. Exhibit 370 includes three persons named on a list of "permanent construction" employees.15 General Counsel's Exhibit 372, which the parties stipulated was accurate, shows that 27 persons were still working on construction as of March 4.16 One of the employees listed was a scaler, excluded from the unit by the parties' contr4ct.17 The number of employees in the bargaining unit thus becomes 145.18 (1) The number There are in evidence 138 green authorization cards bearing the dates March 1, 2, 3, or 4, which Respondent and the Brotherhood maintain were submitted to the 16 These employees are: R. Almendarez, R. Asbedo, O. Benitez, L. A. Campbell, R. Cantu, J. M. Casteneda, B. Contreras, A. Cortez, D. Cortinas, E. Eckley, Gilbert Garcia, R. Garcia, J. P. Gauna, R. B. Gonzales, W. Gonzales, C. Martinez, J. Martinez, J. O. Morena, L. Ortiz, R. R. Ramos, J. Roberson, J. Sanchez, P. Urrutia, L. Villalovos, B. Villaueva, E. Villarreal. 17 Jerry Veach. 18 Because of considerable confusion in the record , this must be taken as an approximate figure. MISSOURI BEEF PACKERS, INC. 179 hood Local of the Plainview plant in April and continued in that office at the time of the present hearing. However, at the hearing, he served as the employee assistant advisor to counsel for the General Counsel and the Charging Party. In testifying, he left little doubt that his sympathies are with the Amalgamated and against the Brotherhood. The complaint alleges that at various times between March 10 and April 19 Respondent's representatives engaged in numerous acts of interference with the employees' rights under Section 7. Essentially , the conduct alleged was directed against the Amalgamated.8 The relevant evidence will be discussed below following resolution of the basic 8(a)(2) allegations. 4. The Brotherhood's majority Respondent and the Brotherhood maintain that the question of the Brotherhood's majority status could not properly be litigated because no such issue was raised by the charge or complaint. The charge alleged that Respondent had "contributed support to, sponsored and dominated" the Brotherhood. The complaint alleged that Respondent had unlawfully recognized and contracted with the Brotherhood "although a majority of said employees had not authorized" that Union to represent them. Recognition of a minority union is a common form of unlawful support. The complaint thus did not constitute action by the Board "on its own initiative rather than pursuant to a charge," as Respondent maintains. Under the allegation that the Brotherhood had not been authorized by a majority, it was proper for the General Counsel to prove the invalidity of cards used to justify recognition. To be sure, the complaint did not specify the bargaining unit covered. But neither had the Brotherhood's demand, which Respondent deemed adequate. Respondent can hardly claim to have been taken by surprise when the General Counsel undertook to establish that the Brother- hood did not represent a majority of the employees in the bargaining unit defined by Respondent in its contract. The size and composition of that unit are manifestly compo- nent' elements in a determination of majority status. 5. The bargaining unit a. Definition of unit Although the demand for recognition did not define any specific unit, representatives of both Respondent and the Brotherhood testified that they mutually understood that a production and maintenance unit was contemplated. However, according to its representatives, Respondent had 8 The complaint, as amended, alleges interference "since on or about March 4, and continuing to date" and specifies one instance of interroga- tion on March 5, which was before any activity by the Amalgamated. However, there was no evidence to support that specific allegation and the General Counsel's brief does not discuss it. 9 The contractually defined unit is: "all production and maintenance employees including truck drivers at the Company's Plainview, Texas plant, but excluding all office clerical employees, hot beef and paying and billing scalers, watchmen, guards, office janitors and supervisors as defined in the Act." 10 There is some authority for the proposition that bargaining concerning the unit is to be encouraged. See Colecraft Mfg. Co. v. N.L.R.B., 385 F.2d decided that scalers, hide mill operators, and supply room employees were not because they were "management" people and apparently are excluded from the units represented by the Amalgamated at the Friona and Rockport plants. There are no hide departments at the Friona and Rockport plants and Respondent had decided that the hide mill operators were closer to management. than to rank-and-file employees. These potential exclu- sions were not discussed between the parties before recognition was granted. In the course of contract negotiations, however, the matter was resolved, with scalers being excluded and the hide operators included. The evidence is not entirely clear as to the supply room employees, which appear to be a very small class. By limiting the unit to production and maintenance employ- ees, together with truckdrivers, the contract excludes construction workers. Additionally, the customary exclu- sions are made in the contract .9 The unit defined in the contract is substantially less than all Respondent's Plainview employees, the unit apparently covered by the Brotherhood's demand. Respondent un- doubtedly would have been free to reject the demand as inadequate without running afoul of Section 8(a)(5). But it does not follow that it was obligated to reject the demand to avoid violating Section 8(a)(2). Without interfering with its employees' rights it could take the risk that the unit agreed upon would ultimately be found appropriate by the Board.10 Since the General Counsel and the Charging Party have not attacked the contractually defined unit as inappropri- ate, it will be accepted for the purpose of this Decision. b. Placement of employees performing construction work. As previously stated, Respondent had constructed the plant primarily with workers hired for that purpose. Commencing around the first of the year, each employee was asked if he would like to remain on as a production or maintenance" employee when production started. The employees were asked according to seniority and permitted to express their preferences as to particular jobs. The majority of the employees said they would like production jobs, but some declined and some wanted to defer decision. Those employees who declined the offers were kept on as "permanent construction" employees.12 As of March 2, when production commenced, there was still some construction work left to be done and production apparently did not reach its projected full level. Thus several employees who had opted to take production jobs continued to work in construction after March 2. Respon- 998, 1007(C.A. 2), reversing in part 162 NLRB 680, 689, where the Board found that the variance between the unit requested by the union and that finally agreed upon was insubstantial. 11 Hereafter, except where otherwise indicated, "production" will be used to include both production and maintenance, as distinguished from construction. 11 The record contains a list of "permanent construction" workers prepared by Respondent. It shows that as of March 2-6 there were 15 such employees, all of whom were terminated sometime between March 12 and July 19. In addition, 28 were hired after March 6, of whom only 10 were still in Respondent's employ as of July 19. MISSOURI BEEF PACKERS, INC. 181 Company on March 4. Of these cards, several must be disregarded because they were executed by persons not in the bargaining unit. Two cards were signed by "perma- nent" construction workers,19 and 26 by employees who, though expected to transfer in the future, had not done so by March 4.20 Four were signed by scalers, whom the parties excluded from the unit.21 One was signed by a person whom Respondent had not included in its lists of unit members. (G.C. Exhs. 370 and 372).22 One card was clearly shown to have been a duplication 23 That leaves 104 cards purportedly signed by members of the unit. (2) The dates (a) Altered dates Numerous cards are attacked because of questions concerning their dates. The Brotherhood, though not named as a party respon- dent, litigated actively and has filed a voluminous brief. It sought to establish that, pursuant to a predetermined strategy, it distributed no authorization cards before the organizing committee's meeting on March 1, the eve of Respondent's first kill. Using his notes, Green read the names of 13 employees who were named to the organizing committee at the March 1 meeting. He also testified that they "had 10 that was signed up in the organizing committee" on March 1. However, there are cards of only seven committee members bearing the date March 1. There are five additional cards dated March 1, but it does not appear that these five persons attended the meeting on March 1. Villalovos testified that he had solicited authorizations both before and after March 2, when production started. At least five employees credibly testified to having received and signed their cards at the plant before March 2. Some employees clearly placed the date before March 1, the earliest date appearing on any of the cards. Ramon Villanueva credibly testified that he had Villalo- vos sign a card for him while he was working. in production. Villanueva believed this had been done on Thursday, March 4, although it might have been on March 3 or 5. Villanueva's card, signed for him by Villalovos, is dated March 1.24 It appears that employees generally were requested only to sign their names, with somebody else later filling in the blanks, including the date of execution. Of the approxi- mately 35 employee witnesses called by the General Counsel, only two, Julian M. Castaneda and Mike Rushing, testified to having personally affixed a date to authorization cards. The date Castaneda put on was March 19 R. B . Garza, H. Bustas. 20 J. M. Castaneda, E. M. Eckley, L. Villalovos, W. G. Gonzales, R. Almendarez, R. Asebedo, O. Benitez, R. Cantu, B. Contreras, A. Cortez, D. Cortinas, Gilbert Garcia, R. F. Garcia, J. Gauna, J. Martinez, J. Morena, D. E. Quoros, R. R. Ramos, J. Roberson, B. A. Villanueva, E. Villarreal, C. P. Martinez, L. L. Ortiz, J. Sanchez, P. Urrutia, R. B. Gonzales. 21 J. C. Sanders, S. L. Underwood, ' J. Veach, J. D. Spann. 22 K. Bod. These figures eliminate duplication of cards which are rejected on other grounds. 23 J. M. Castaneda. 24 Villalovos was in error when he testified that Villanueva's card was executed before production commenced. 6, which the evidence conclusively establishes was subse- quently altered to read March 1.25 The large number of cards which are blank except the signers' names and dates corroborate the employees' testimony concerning instruc- tions given them by the solicitors. The evidence indicates that many cards were solicited at the plant on March 2.26 Production on March 2 consisted of a small kill, conducted primarily as a training session for the employees who were inexperienced. One employee witness testified that only about 3 or 4 hours of actual work was performed that day. But Villalovos, a maintenance employee, testified that he was too busy at work to solicit any cards that day. The record contains 102 cards dated either March 1 or March 2. A majority of these appear to have been dated by the same person. The record, however, does not establish precisely when or by whom they were dated, although it appears likely that Eckley dated them.27 Villalovos testified that, in the main, he did not date the cards he solicited and then turned over to Eckley or to Green. Brotherhood witnesses J. D. Spann and Ray Ramos conceded that they had dated at least some of the cards they solicited. There is considerable conflict of testimony concerning the March 2 membership meeting. The number of persons attending was variously estimated at from around 15 up to 100. Mahon testified that he then had "in the neighbor- hood of one hundred" cards and promises of about 25 or 30 more from persons on the night shift. Spann testified that at the Brotherhood meeting on the evening of March 2 Green counted 138 cards and called out the name of each signer. Ramos testified that Green had "guessed" that there were "about a hundred and maybe a hundred forty, a hundred thirty, something like that." Green later testified that, at the March 2 meeting, 102 cards were counted out, with Ramos and Lupe Ortiz reading the names out in Spanish and English (a "fact" Ramos failed to mention). On the other hand, Villalovos testified that at two Brotherhood meetings he asked how many cards had been received and Mahon "always said not enough, and he never gave . . . a straight number." The record contains 26 cards bearing the date March 3. These cards generally appear to have all been dated by the same person. There are nine cards dated March 4, eight of which appear to have been dated by the same person. There are no authorization cards in the record purporting to bear a date after March 4. The evidence is indecisive concerning the actual number of cards that Mahon and Green turned over to Bums and Mellinger on the morning of March 4. No copies were made and no record was kept of the number of cards or the names appearing thereon. There was a conflict of testimo- 25 Another card signed, in blank, by Castaneda bears the date March 2. Castaneda credibly testified that he had not dated that card and had not signed it on March 2. 26 There is no question that many were freely solicited during working time. Respondent's witness J. D. Spann testified that he passed out cards while standing in front of Roberson's office. The evidence is also clear that Respondent had in effect a rule against solicitation . The General Counsel apparently contends that Respondent violated Sec . 8(aX2) by permitting this solicitation. However, since no such allegation was contained in the complaint, no finding can be made in this regard. 27 Eckley, the chief employee solicitor, is no longer employed by Respondent and apparently could not be located to appear at the hearing. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ny as to whether the cards were counted. Green testified that "Mahon counted them out to Mr. Burns." Mellinger testified that somebody counted the cards and there were "in the area of a hundred forty . .. It was 140 or 143."28 Mahon said that the number of cards was not verified at the meeting, but he had previously counted them as around 140 or 143. In his testimony Roberson indicated that one group of about 100 cards was given to him in the morning and he received a second group of around 30 apparently shortly after noon. However, Green, Mahon, and Mellinger failed to mention the delivery of any cards after the morning meeting. Roberson produced the seniority list against which he said he had checked the cards. This list purports to show 137 cards received. This would coincide with the 138 cards in evidence, eliminating Castaneda's duplicate card, which indisputably was originally signed and dated on March 6. However, one fact casts considerable doubt on the authenticity of the seniority list produced by Roberson. Roberson testified that on March 4, when making the card check, he rejected one dated March 3 and bearing the signature "Jose Lopez" because there was no employee with that name then on Respondent's employee list. The matter was straightened out on March 5, at the contract negotiating meeting, when Villalovos informed Respon- dent that the proper name of the employee in question was "Jose Lopez Medina." As it appears in the record, the card has "Median" printed after the script "Jose Lopez." However, the seniority list used by Roberson reflects receipt of Medina's card. There is no suggestion in Roberson's testimony that he ever reviewed or corrected the seniority list after making the card check and reporting to Mellinger. Manifestly, Spann and Ramos could not have been correct in testifying that there were 130 to 140 cards counted at the Brotherhood's meeting on March 2, since the maximum number of cards claimed as of that time was 102. Nor is there any plausible explanation for Mellinger's testimony that 140 or 143 cards were turned over at the meeting on the morning of March 4, since there were at most 128 cards dated March 3 or earlier. And if the dates on the cards accurately reflected the dates they were signed, Roberson presumably should have received more than the approximately 100 he said were turned over to him on the morning of March 4. The casualness with which the Brotherhood treated the matter of dates is shown by the record concerning the three-part blue cards. Green testified that the blue cards were first passed out on the evening of March 3, but none were signed before March 6. Willie Gonzales, however, testified that on March 2 Green counted the green cards and then said: "We're in," whereupon he started to pass 28 At first he testified that he personally counted them. But later he said he could not recall which of the four men present had done it. 29 One of these is actually dated "Feb. 4," which is presumed to be an inadvertent error. 30 G. F. Miller, L. Amaya, S. G. Carrasco, A. Carrasco, C. H. Castillo, R. F. Garcia, M. Gerhardt, A. Huertas, J. Perez, D. Quiroz, M. G. Ramos, I. Rangel, J. Roberson, A. Saenz, H. M. Scwab, J. Veach, C. P. Martinez, J. Sanchez, J. Arrott, B. Blackard, J. M. Castenada. 31 It may be observed that in The Playboy Club of New York, 172 NLRB out three-part blue cards, consisting of an authorization for representation and membership application, dues checkoff authorization, and application for insurance. General Counsel's Exhibit 372, prepared by Respondent, shows that of the 169 employees on the production payroll as of March 2 to 6 (which includes persons who had not actually begun production work) 104 were on union dues checkoff. The record contains 44 blue authorization-membership cards, plus one mimeographed checkoff authorization. Of these, 2 are dated on March 1; 18 on March 2; 9 on March 3; and 16 on March 4.29 Included among the blue authorization cards in the record are those of R. Soliz and D. Villa, both cards bearing the date March 2, while their green cards are dated March 4. Also in the record are blue cards signed by Jack Jackson, dated March 4; Eddie Smith, dated March 2; and Johnny Williams, dated March 4. However, these three employees were not hired until March 9, 11, and 10, respectively. The dates appearing on 21 green authorization cards show evidence of having been changed.3° In most instances it is impossible by visual examination to determine precisely what the change was. But the date on Albino Saenz's cards appears obviously to have been altered from March 6 to March 2. He testified that he signed it at the Brotherhood meeting of March 6. He did not recall having executed a blue card, and when shown one purportedly signed by him, he disavowed the signature. The signatures on the blue and green cards appear to the Trial Examiner to have been written by different people. The date on one of Castenada's card had also unquestionably been changed from March 6 to 1. On the basis of all the evidence heretofore discussed, the Trial Examiner believes that none of the cards with altered dates should be accepted at present face value as having been executed before March 4, when recognition was granted.31 Stated another way, any presumption of regularity attaching to the cards is rebutted by evidence of alteration when considered in the light of all the evidence. Accordingly, in determining the Brotherhood's majority status, all cards bearing altered dates will be excluded except where there is affirmative evidence that a particular card was actually signed by March 4.32 On elimination of cards rejected for other reasons, a net of 13 additional cards are excluded because of alteration in the dates. (b) Specific cards The evidence concerning the dates on certain specific additional cards is as follows: Javier Benavidez's card is dated March 2. He testified, however, that he received the blank card during his coffeebreak on Friday, March 5. He could establish the date of reference to the work he was performing. At that time he put it in his pocket and did not sign it until 783, 790, fn. 15, Trial Examiner Maher refused to receive in evidence any cards which could not be identified by the signers or could not be affirmatively shown to have been included in the card check pursuant to which recognition had been granted. The Board affirmed all the Trial Examiner's rulings in that case . In the present case , however, the General Counsel, naturally without objection by Respondent or the Brotherhood, introduced in evidence all the cards which the Brotherhood had submitted as having been presented to Respondent on March 4. 32 L. Amaya. MISSOURI BEEF PACKERS, INC. Saturday, March 6. He turned the card in to the Brotherhood and signed the three-part blue card at the meeting on Saturday, March 6. The Trial Examiner credits the witness.33 Ramiro Chavira34 testified that he signed his authoriza- tion card at the plant on Monday, March 8, which he definitely and accurately placed as 2 days after the big Brotherhood meeting on March 6. The date of March 2 'on the card appears to have been affixed by the same person who dated numerous other cards. The Trial Examiner credits Chavira and excludes his authorization card. Lee E. Gomez's card is dated March 2. However, he testified that he received the card from Villalovos on Wednesday and put his name on tt35 at a Brotherhood meeting on Thursday evening, March 4, after recognition had been granted. The Trial Examiner credits Gomez and thus excludes his card. Jose Perez36 testified that he signed both the green and the blue cards at the Brotherhood meeting on March 6, the only meeting he attended. Both cards are dated March 2, but on both the date appears to have been changed. Since it appears generally that no blue cards were solicited until after the recognition demand was made on March 2, Perez's testimony appears probable and is credited. His card therefore cannot be counted. Eleazar Nunez testified that he received the green card sometime after March 2, probably at the plant, and that he turned it in at the March 6 meeting, at the same time he executed a blue card. Both his green and blue cards are in the record and bear the date March 2. The fact that both cards bear the same date tends to corroborate Nunez's testimony. Since he apparently did not attend the meeting on the evening of March 2, the very earliest time that any blue cards might have been circulated, the inference is clear that the green card was not signed on March 2, the date it bears. Crediting Nunez, the Trial Examiner finds that his card was not signed until after recognition was granted. Manuel Ramos testified that he received a green card at the plant, but signed it at the Brotherhood meeting on March 6, at the same time he executed a blue card. He did not date the card because he cannot read or write. Since there is no blue card signed by Ramos in the record, it must be inferred that this card was signed after March 4, thus corroborating Ramos's testimony that he signed on March 6. The Trial Examiner finds that his authorization card was not signed until after recognition was granted. Isidro Range!, Jr., testified that he signed both a green and a blue card at the Brotherhood meeting on March 6. His green authorization card is dated March 2. According to him, at that meeting people who had not signed green cards were asked to raise their hands and were then provided such cards, which they were asked to sign. They were told it would not be necessary to fill in any other parts 33 In the course of the hearing, counsel for the Brotherhood said: ".. . my position is that the Spanish speaking people in this area have been intimidated and led into testimony that is contrary to the truth" In his brief, however, he says: "It is readily apparent that a majority of the witnesses testifying as to their cards were sincere as to what they were testifying to but it is submitted that an examination of the record will disclose that the majority of them were in error as to their testimony." 34 According to the transcript, the witness identified himself as Marimo 183 of the card. The Trial Examiner credits Rangel and thus will not count his authorization card in determining majority status on March 4. Clyde Walker testified that he did not sign his authoriza- tion card on March 2 , the date appearing thereon. His recollection was that he signed both a green and a blue card on the same day, which he thought was around 5 days after production started. There is no blue authorization card executed by him in evidence , but a list prepared by Respondent shows that he has authorized checkoff of Brotherhood dues. Thus, the cards were signed after March 4. Norman Woods, whose card is dated March 2, testified that he signed both the green and blue cards at the Brotherhood meeting on March 6. There is no blue card by him in evidence, although Respondent's records show he was on dues checkoff. Thus, the cards were signed after March 4 and his authorization cannot be counted in establishing majority on March 4. Sammy Pena, whose card is dated March 3, testified that he signed the green authorization card at the Brotherhood meeting on March 6. After green cards were distributed and signed, blue cards were produced. He took a blue card with him and signed it at home a week or so later. The Trial Examiner credits Pena and thus his card cannot serve to establish the Brotherhood's majority status when recognition was granted. Adolfo Range!, whose card is dated March 3, testified that he was positive he had not signed the card until sometime after production started. Originally he said it was about 3 weeks after the commencement of production. On cross-examination he conceded that he was unclear as to just when he had signed, but he was positive it was not on March 3. He testified that he signed the card because the solicitor told him about "the insurance that [he] and [his] wife would have and the raise every 30 days," an unlikely statement before recognition was granted. Rangel further testified that he had not dated the card because he did not know the date and the solicitor told him "he was going to put the day when the plant started in order to get Rangel's seniority." It is not possible that such statements had been made in reference to a blue card since Rangel did not sign a blue card and has not authorized a checkoff of union dues. His card is excluded. Alfonso Maldonado, whose card bears the date of March 4, testified that he signed it at the Brotherhood meeting of March 6, 'the only one he attended. Although the Brotherhood maintains that only blue cards were distribut- ed, signed, or collected at the March 6 meeting, it is not possible that Maldonado was confused as to the type of card he signed, since he apparently did not execute a blue card and Respondent's records show that he was not authorized checkoff of union dues. The Trial Examiner credits Maldonado, despite the Brotherhood's attempt to Chavra, spelling both names. The card, however, is signed, "Ramiro Chavira," which is the name that appears on Respondent's records. 35 He printed his name on the bottom of the card. However, the written signature is not his. The purported cursive signature reads "L. 0. Gomez," which is not his name. Further, the purported signature on the green authorization card is obviously in a handwriting different from that on the blue card. 36 The record erroneously identifies this witness as "Ferez." 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • impeach him by showing that he, like several other witnesses for the General Counsel, has become dissatisfied with the Brotherhood and has signed a card for the Amalgamated. Santos Reyna also credibly testified that he signed his card at the March 6th Brotherhood meeting, the only one he attended. He signed the card in two places but did not date it "because he didn't remember and no one told him to." The Trial Examiner credits Reyna's testimony that he did not sign his card on or before March 4. Paul Garvin testified that, while he first saw green authorization cards at the plant on March 2, he did not sign one until 2 or 3 days later. He received the card from Spann, who was standing just outside Roberson's office handing out cards to any employees who would take them. Spann testified that March 2 was the only day he passed out cards at the plant. Garvin's additional testimony disclosed that he was obviously confused about time sequences generally. He stated that he had not filled in the date because he did not know it at the time. While Spann was not an entirely reliable witness, the Trial Examiner finds that Garvin's testimony is insufficiently reliable to establish that his authorization card was not signed on March 2, the date which it bears. Accordingly, his authorization will be considered valid.37 (3) Miscellaneous attacks The General Counsel and Charging Party contend that at least five specific cards must be rejected because solicited on the misrepresentation that signing the cards would result in the employees receiving wages of $2.25 or $2.35 per hour. According to the Charging Party, such statement by the solicitor amounts to an "illegal promise of immediate and direct monetary benefit," thus invalidating the cards so solicited. Robert Aguilar and Jesse Aguilar testified that, at the plant on March 2, Spann solicited their cards and those of L. Amaya and E. Luna by saying that "if they signed it they would start getting two thirty-five an hour and that they could also get into the meetings by signing the card." Jesse Aguilar, however, also testified that he knew that the Union was "supposed to come in if they could get enough cards and get a contract." Spann testified that there had been a general rumor that wages would go to $2.35 and Robert Aguilar asked if that was true, to which Spann replied that he did not know. Jose Frausto testified that Eckley, who solicited Frausto's authorization, said that "if they. signed for the Union [they were] going to get more wages . . . at least $2.25." According to Frausto, Eckley also asked if he "wanted this union to come in, come, you know, come to the plant." All they have to do is just sign this card." Thereupon Frausto signed. There is other evidence in the record indicating that there was a fairly widespread rumor in the plant that the Brotherhood would bring a wage rate of $2.35 per hour. It is well established, as a general rule, that a union's claim that it will obtain certain benefits is permissible campaign propaganda, which employees are capable of evaluating. N.L.R.B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (C.A. 5); N.L.R. B. v. Gilmore Industries, Inc., 341 F.2d 240, 242 (C.A. 6). The evidence in the present case does not establish "promises" of wages or benefits purporting to be any more binding than normal campaign puffing. Thus they do not in themselves require rejecting any specific authorization cards. The Charging Party further would invalidate the card of Mike Rushing because of "misrepresentation ." Rushing testified that Spann, the solicitor, said that the card "entitled the union to come in and talk to the Company, and that's all." Rushing's testimony continued: Q. Did you say anything to him? A. Yes, I asked him, I said, are you sure this is all they do, come in and talk, because I want to hear what the company has before I sign a union card. The Union could come in and "talk to the company" in a proper or meaningful way only after it had been recognized. Rushing, unlike most of the other employee witnesses, read the card, which is an unambiguous single-purpose card. Rushing is a high school graduate and served on the Union's negotiating committee . While he probably antici- pated the more usual course of a preelection campaign, with Respondent opposing the Union, it cannot be held that Rushing's signature was procured through misrepre- sentation or without any understanding of the purport and purpose of the card. The Charging Party contends additionally that five cards must be rejected because they "contained only printed names with no showing that the employee who purportedly belonged to each card ordinarily printed his signature." The Trial Examiner knows of no rule which requires that an authorization card be signed in an employee's custom- ary form of signature in order to constitute a valid designation of the union. If the purported signer did actually affix his name, the card presumptively expresses his intention and constitutes a valid authorization in the absence of countervailing probative evidence. There is no evidence rebutting the presumptive validity of the specific cards under consideration. The Amalgamated also contends that employee Medi- na's card must be excluded because it "was held invalid by Roberson." But it cannot be said that the employer's opinion or determination concerning a card is controlling. The evidence establishes that Medina did actually affix his name to a card as an authorization for union representa- tion. Equally without merit is the Charging Party's contention that two cards must be disregarded because apparently dated "with a writing instrument different from that with which the card was signed." Such a situation would be reasonably expected, in view of the uncontradicted testimony that many, if not most, of the cards were not dated by the signing employees . There is no rule under which a card is invalid unless the signer personally writes the date on it. The result of the above analysis of the specific cards under attack is the rejection of 26 , leaving 79 cards apparently valid. Since, as heretofore found, the unit consisted of approximately 145 employees, the General 31 Although not directly germane to the question of when Garvin's card minority of employees who read the card before signing. was signed, it may be noted that he was among an apparently small MISSOURI BEEF PACKERS, INC. 185 Counsel has failed to establish that the Brotherhood had not been designated by a majority of the employees "on March 4, when recognition was granted,38 unless, as the General Counsel and Charging Party earnestly urge, overall considerations and the surrounding circumstances require that the cards as a whole be disregarded as a reliable expression of employee sentiment. These overall considerations will be discussed below, in the section entitled "Discussion and Conclusions." d. The demand, card check, recognition, and contract (1) The demand and reply At the meeting on March 2, Mahon said he would send a demand to Respondent. A meeting was scheduled for March 6, at which Mahon would report on the progress of negotiations, if any. A demand telegram was sent, which Burns received by telephone at 10:26 p.m. Mahon's return address stated was the Brotherhood's office in Des Moines, Iowa. Around 3 p.m. on March 3, Burns telegraphed Mahon, in Des Moines, that Respondent would meet with the Brotherhood "to discuss [the] claim of representation" at 9 a.m. on March 4 at the Congress Inn in Plainview. No explanation was provided as to how Burns could reason- ably expect Mahon to meet them in Plainview, about 900 miles from Des Moines without direct air transportation, if, as Respondent maintains, there had been no prior communication between the parties and Respondent's sole knowledge of the organizing activity was Roberson's having received some employee inquiries at the plant. Green, who had been staying at the Congress Inn, testified that the March 4 meeting was scheduled for and then held at the Holiday Inn, where it was actually held. It does not appear how or, when the meeting place was changed. On the evening of March 3, a meeting of the Brother- hood's organizing-negotiation committee was held. The employee members were told that Respondent had recognized the Brotherhood and there was a discussion of the contract terms which the Union would demand. Mahon testified that at the meeting on March 4 he told Respondent that the Brotherhood was claiming representa- tion in a production and maintenance unit. There was no discussion of the construction workers. Respondent's representatives did not at that point mention their prior decision to exclude such classes as scalers and hide mill operators. Mahon and Green turned the cards over to Burns and Mellinger, without obtaining a receipt or making any copies or records thereof. With Mahon testifying that the cards were not counted then; Green testifying that Mahon counted them to Burns; and Mellinger being rather vague about the matter, the Trial Examiner concludes that the cards were not then counted. (2) The card check Mellinger testified that he had no reason to doubt the genuineness of the cards and gave them to Roberson with the request that he "insure that they were actually employees of the Company" and let Mellinger "know the ones that fell into these three categories, the scalers, mill operators and supply room or any others that were supervisors or anyone that-any odd situation that was not consistent with what our seniority is." Roberson, however, did not indicate that he had received any such specific instructions. He testified that he had been told only to eliminate "hourly management people" and that he did not know what the unit was. The seniority list which he used reflects cards executed by construction workers as well as employees scheduled to be scalers and hide operators. He did not call such cards to Mellinger's attention. Roberson testified that he questioned a few cards, all because of the signatures. Mahon, however, testified that after the card check the Company rejected cards only because the signers were not within the unit defined by the Company, to which Mahon replied that "this was a negotiable matter." The only questioned card that Rober- son specifically recalled was Jose Lopez Medina's, from which the last name had been omitted. Although the last name was not added until March 5, receipt of the card is reflected on Roberson's check list. Referring to notes, Green identified the card with the missing last name as that of "Jose Garcia." According to Green, on March 5 the employee had executed a new card, which was sent to Respondent. Roberson testified that he checked the signatures on "the great majority" of the cards, leaving only a "relatively few" unchecked. He did note some cards with just printed signatures but could not recall any such cards by employees who had written signatures on file. Nor did he specifically recall any cards with signatures differing from those on file. The present record establishes that there were at least some cards within these two classes. On the afternoon of March 4, apparently immediately upon Roberson's completion of his card check, Respon- dent telephonically extended recognition and offered to commence bargaining the next morning. That evening, a Brotherhood meeting was held, attended primarily by the negotiating committee. The discussion concerned the contract terms which would be sought in the negotiations. Negotiations commenced on the morning of Friday, March 5, and continued until midnight or later. In the forenoon, Mahon arranged with Respondent's representa- tives that the employees would be permitted to attend a Brotherhood meeting on Saturday; presumably for the purpose of approving or authorizing a final contract. In the afternoon, the employees were informed that they would all have to work on construction 8 or 10 hours on Saturday. A notice of the meeting was posted at the plant sometime Saturday morning. During a coffeebreak at or about 9:30 a.m. on Saturday, Construction Superintendent Max Davis displayed the announcement to the employees and told them they would be released from work so they could attend. There is a conflict of evidence as to whether Davis said that the employees were required or merely permitted to as If the employees who were expected to transfer to production but had figures are 99 cards in a unit of 172. not actually done so by March 4 are included in the bargaining unit, the 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD go. There is no question that he spoke only in English and the notice of the meeting was printed only in English. Those employees unable to understand or read English, of whom there apparently were many, obtained their infor- mation from fellow employees. Employee Woods testified that he had been informed of the meeting by Roy Greene, his supervisor. Woods thereupon inquired of Davis, who said he did not know what the meeting was about, but "he would think it would be important to go." On all the evidence, the Trial Examiner finds that Davis did not, in so many words, order the employees to attend the Brother- hood meeting. However, the circumstances were such- -particularly the fact that a full day's work had been specially scheduled on a Saturday-that many employees reasonably believed that attendance was mandatory. Except for a small group of cement workers, who were not released, practically all the-employees clocked out of work at noontime and attended the meeting, which began at 1 p.m. They were not paid for the afternoon. As previously noted, the Brotherhood maintains that no green authorization cards were distributed, signed, or turned in at the March 6 meeting. Green testified that he did not then have any green cards, having distributed his entire supply on March 1. However, employee witnesses credibly testified that those employees who had not signed such cards were asked to identify themselves and were then given cards to sign. The Brotherhood does not dispute the fact that at least Castaneda dated a green card March 6.39 The Trial Examiner had found that some green authoriza- tion cards were signed and turned in at the March 6 meeting. In addition, three-part blue cards, including authorization for union dues checkoff, were also solicited at the meeting. The employee witnesses generally testified that they were told that they need only sign the cards and that the Union would fill in the blanks, including the date. At the March 6 meeting, Mahon and Green also reported on the terms of the contract which had been negotiated by that time. Villalovos and Ray Ramos served generally as interpreters for the benefit of the Spanish- speaking employees. Although the evidence is not entirely clear, the Trial Examiner finds that the consensus of employee sentiment was that the negotiating committee should attempt to secure somewhat better terms but that it was authorized to conclude final agreement. Contract negotiations were resumed at the end of the Brotherhood meeting. Respondent raised its basic wage offer from $2.10 to $2.25 per hour and made a few other unspecified concessions and final agreement was reached that evening. Although Mahon testified that the Respon- dent has no "form" contract, the printed contract in the record appears to be a national form, including a union- security provision even though Texas is a right-to-work state. C. Discussion and Conclusions 1. Section 8(a)(2) To borrow the words of Judge Gewin: "Upon considera- as The Brotherhood maintains that the date on that card was changed to read March 1 while the card was in the possession of the Board's Regional Office. A photocopy of the card sent to the Board by the Brotherhood tion of the whole record it is [the Trial Examiner's] opinion that in this dispute the angels probably stand on neither side." N.L.R.B. v. W. R. Bean & Son, Inc., 450 F.2d 93, 2626 (C.A. 5). The Amalgamated, the Charging Party, unabashedly admits to having repeatedly sought to secure recognition as the bargaining representative for employees whom it had not attempted to organize 4° During the same preproduc- tion period,'Respondent indicated that it would be willing to recognize the Amalgamated at the Plainview plant at an appropriate time provided it did not end up with contracts expiring simultaneously in Friona and Plainview. It was not until shortly before production actually began that Respondent belatedly nodded to the employees' statutory rights, stating that it would then be an unfair labor practice for it to recognize the Amalgamated at Plainview. The Brotherhood was clearly motivated by a determina- tion to steal the jump on the Amalgamated, which had been lulled into complacent inactivity by Respondent's expressed willingness to consider the Amalgamated's request for recognition when the time was ripe. In the words of its brief, it was the Brotherhood's "strategy to hit the plant in mass on the date it first started production to obtain authorization cards and make immediate demands upon the employer if and when a majority of the authorization cards were obtained." This secret type of organizing was scarcely calculated to educate and enlight- en the employees in the important matter of choosing their collective-bargaining agent. The campaign was planned as a blitz, achieving its success through a bandwagon movement. But it is established that a union may legally secure representative rights through "a successful coup rather than an open contest between two unions." N.L.R.B. v. Air Master Corp., 339 F.2d 553, 556 (C.A. 3), setting aside 142 NLRB 181. See also Retail Clerks Union, Local 770 [Boy's Markets, Inc.] v. N.L.R.B., 370 F.2d 205 (C.A. 9), affg. The Boy's Markets, Inc., 156 NLRB 105. Respondent and the Brotherhood maintain that they had had no contact before the demand telegram sent on March 2. There is considerable reason to be suspicious of this claim. The Brotherhood' s willingness to turn the authoriza- tion cards over to Respondent, without demanding a receipt or keeping any copies bespeaks a trust not commonplace between unions and employers who have had no prior contact. One would normally expect that the union would request that the card check be made by an outside, impartial agency, or, ' at the least, with a union representative present. The alacrity with which Respondent agreed to conduct a card check is also most unusual, particularly in view of the fact that the demand telegram did not define any bargaining unit and Respondent was thinking in terms of a unit substantially smaller than the total complement of employees apparently covered by the demand. Also, as set forth above, there is reason to question Respondent's assumption on the afternoon of March 3 that the Brotherhood representatives would be available for a clearly shows the March 6 date. 40 There was never any suggestion of a prehire contract for the period when the employees were working on construction. MISSOURI BEEF PACKERS, INC. 187 meeting in Plainview at 9 a.m. on March 4 since, so far as the record shows, the Brotherhood representatives were in Des Moines, Iowa, to which address the Respondent's reply telegram was sent. The carelessness with which Respondent conducted the card check is also noteworthy. In no manner did it meet the standard of care set forth by the Supreme Court in I.L. G. W. U. [Bernhard-Altmann Texas Corp.] v. N. L.R.B., 366 U.S. 731, 739: If an employer takes reasonable steps to verify union claims, themselves advanced only after careful estimate .. . he can readily ascertain their validity and obviate a Board election. We fail to see any onerous burden involved in requiring responsible negotiators to be careful, by cross-checking, for example, well-analyzed employer records with union listings or authorization cards ... . Here Respondent accepted without question several cards which could not have been verified by its records since the cards did not bear the signatures of the named employees. Respondent also accepted without question cards of employees not within either the bargaining unit contem- plated by Respondent or that later agreed on in the contract. And, as previously seen, at least one card was allegedly accepted on March 4 although the signer's identity was not known until March 5. It should further be noted that many of the cards were solicited and signed at the plant, during working hours on March 2, despite the existence of a presumably valid no- solicitation rule. Although Respondent denied having known of such solicitation, its witness Spann testified that he had openly distributed cards while standing in front of the personnel directors office. Where, as here, there is no rival union on the scene,41 it is not necessarily unlawful for an employer to facilitate union solicitation of membership. Hunter Outdoor Products, Inc., 176 NLRB 449, 458, and cases there cited. But such cooperation is a significant part of the total picture. The evidence as a whole raises strong suspicion that the Brotherhood and Respondent had at least conferred about the possibility of the Brotherhood's representing the Plainview employees, as Respondent's representatives conceded they had previously spoken with the Amalgamat- ed. But the General Counsel and Charging Party have not shown by a preponderance of the evidence that Respon- dent unlawfully assisted the Brotherhood prior to extend- ing recognition. The evidence clearly warrants the inference that Respon- dent was happy to recognize the Brotherhood to forestall organization by the Amalgamated. Respondent had been subjected to a strike in the course of its prior negotiations with the Amalgamated at Friona. Respondent was con- cerned lest it have contracts at Friona and Plainview with simultaneous expiration dates. But the fact that Respon- dent might prefer the Brotherhood does not render the recognition unlawful if, in fact, the Brotherhood represent= ed a valid majority when recognition was granted. The ultimate question, therefore, is whether the General Counsel has established that the Brotherhood did not represent a majority on March 4. The Trial Examiner has previously found that a substantial number of the cards on which the Brotherhood based its claim to majority status could not be counted. However, on an arithmetic basis, the number of cards rejected does not reduce the Brotherhood to minority status. The General Counsel maintains that the widespread deficiencies in the cards established in the record casts doubt on the remaining cards, as to which there was no specific evidence. As stated in the Charging Party's brief, because "a minimum of 37 Brotherhood cards, signed after recognition, had been altered or pre- dated," and "other improper conduct" was shown, "it is more than probable that a much greater number of cards were altered, forged or fraudulently obtained." There is no evidence that any card was "forged," i.e., signed in the name of any employee without his knowledge and consent. Whether a particular card was signed on the date appearing thereon is a matter of objective fact generally ascertainable by inquiry of the signer. The General Counsel did, in fact, establish by the testimony of many employees that their cards had been misdated. It must be presumed that the General Counsel interviewed all card signers and produced all available evidence concerning the dates on cards. There is no more reason to believe that the cards not specifically attacked were backdated than to conclude that they were accurately dated. In short, with the burden of proof on the General Counsel, the Trial Examiner cannot indulge a presumption of falsity in the cards as to which there was no specific evidence. It is true that "the question of [a union's] precontract majority" is not always "susceptible to resolution by a simple mathematical formula." Clement Brothers Co., 165 NLRB 698, 699, enfd. 407 F.2d 102 (C.A. 5). And the Board has held a union's majority to be "tainted" where only a small number of cards were specifically invalidated. In Clement, for example, although only 7 of 129 cards were specifically shown to be invalid, the Board held the majority "wholly tainted." See also Department Store Food Corp. of Penna., 172 NLRB No. 129. But these cases involved "coercion" which was found to be "persuasive." Widespread coercion has a natural tendency to influence the employees generally and it would be impossible to appraise the effect of such conduct in the campaign without embarking on an examination of each card signer's subjective state of mind, "involving an endless and unreliable inquiry." N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 608. Cf. N.L.R.B. v. A. W. Thompson, Inc., 449 F.2d 1333 (C.A. 5). But, unlike coercion, the dating of a card is an objective and individualized fact. Finally, the General Counsel and the Charging Party maintain that the card showing should be rejected because it does not affirmatively appear that the employees understood the nature of their acts in signing. The argument is that most of the employees were not highly educated. Many knew very little English and some were illiterate or at best semiliterate in either English or Spanish. So far as appears, few of them had had any previous 41 The Amalgamated's prior requests for recognition did not have any neutrality required in a two-union situation. The Boy's Market, Inc., supra, colorable basis, as that Union had not secured authorization from a single 156 NLRB at 107. employee. Respondent therefore was not subject to the standard of strict 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experience with unions or understanding of the concept of collective bargaining. In Brancato Iron Works, Inc., 170 NLRB 75, 81, the Board said: In an ordinary case the employee's signature placed on a standard union card presumptively establishes his intent to authorize a union to represent him forthwith -for the card so states clearly. When the card is completely unintelligible to the employee, there can be no presumption . . . that he meant this or that. It would seem that in such a case something more is required, either by the employees of what was said to him at the time and his understanding of the purpose for signing, or by fellow employees or solicitors of how they translated or explained the card to him before its acceptance in writing. See also, Gate of Spain Restaurant Corporation, 192 NLRB No. 161. On the other hand, in Breaker Confections, Inc., 163 NLRB 882, enforcement denied in part 402 F.2d 499 (C.A. 4), a union's majority showing was sustained despite the employees' imperfect understanding. The Board there adopted the Trial Examiner's Decision, which said, in part (p. 887): While it is apparent from the testimony of some of the other card signers that they had an imperfect under- standing of the mechanics of collective bargaining and were not clear as to just how a union would go about improving their working conditions, all these witnesses professed awareness that signing the card meant that they wanted- a union and that the function of a union is to improve working conditions. When one considers the language barrier in this case, and the cultural level of the employees, there is little more that most of them could be expected to understand about the cards. Accordingly, I do not deem the employees' limited understanding of collective-bargaining procedure to militate against the validity of their cards. In the present case, the evidence is clear that, while the cards are written only in English, and most of the employees testifying did not read them, the majority of the cards executed by Spanish-speaking employees were solicited by other Spanish-speaking employees. Villalovos, a principal solicitor, testified to having been fully and accurately briefed by Green concerning the nature and purpose of the cards. The evidence as a whole indicates that the employees at least knew that the cards were "for the Union" or "to show the Company that they wanted a union." And they were told that the Union would provide them better wages and working conditions and protect the Spanish-speaking employees. So far as appears, no employ- ees ever attempted to revoke their authorization cards on a claim that they had not understood the nature thereof. Employees who testified that they had since signed cards for the Amalgamated indicated that they had done so because of disenchantment with the Brotherhood's per- formance. But such subsequent change of heart cannot serve to invalidate the original authorization cards. The employee testimony, therefore, brings this case squarely within the principle quoted above from Breaker Confec- tions.42 The record in this case discloses unseemly haste by Respondent and the Brotherhood, obviously in an attempt to keep the Amalgamated out. The sequence of events was such as to foreclose informed and considered action by the employees. This case graphically demonstrates the wisdom of the accepted principle that a Board-conducted election is normally the most reliable method of determining employee sentiment and fostering employees ' organization- al freedom. However, as interpreted over the years, the Act does not undertake to protect employees from taking precipitous action in choosing their representatives. The Amalgamated might have performed that function by attempting to organize the Plainview employees rather than seeking to gain recognition by dealing directly with the employer. The employees would have been better served by the educational process of an election campaign. However, the record evidence does not establish that the Brotherhood was a minority union when it was recognized or that its majority had been obtained through unlawful conduct by either Respondent or the Brotherhood, within the ambit of prior decisions.43 The General Counsel maintains that Respondent afford- ed the Brotherhood unlawful assistance in facilitating the employees' attendance at the Brotherhood meeting on Saturday, March 6. The principal activities at the meeting were the execution of the three-part blue cards, including a union dues checkoff authorization, and obtaining employ- ee authorization or approval for the consummation of a contract. Since, as hitherto found, the Brotherhood had been lawfully recognized, Respondent's conduct in releas- ing the employees from work so they could attend the Brotherhood meeting was permissible cooperation with a majority union. See Mace Food Stores, Inc., 167 NLRB 441, 449; Kimbrell v. N.LR.B., 290 F.2d 799, 802 (C.A. 4). Accordingly, the Trial Examiner will recommend dis- missal of the complaint insofar as it alleges violations of Section 8(a)(2) of the Act. 2. Section 8(a)(1) a. Surveillance Steve Davis, the son of Construction Superintendent Max Davis, attended the Brotherhood meeting on March 6. Young Davis was at that time a construction leadman and thus not within the bargaining unit represented by the Brotherhood. The General Counsel maintains that his 42 Indeed, the Breaker Confections rationale is a fortiori applicable here, since Breaker was an 8(a)(5) case, in which the General Counsel had the burden of establishing the union's majority, whereas here the burden on the General Counsel is to rebut the presumption of majority arising from the cards themselves. 43 In N.LR.B. v. Gissel Packing Co., 395 U.S. 575, 601, In. 18, the Court specifically left open the question of "a union's right to rely on cards as a freely interchangeable substitute for elections where there has been no election interference." The present Trial Examiner suggests that employee rights might be better protected if unions were limited to elections except where employer unfair labor practices prevent fair elections . However, the Board and court decisions under Sec. 8(aX2) appear to negate any such restriction, in the absence of a Midwest Piping situation (Midwest Piping & Supply, Co., 63 NLRB 1060). See Kimbrell v. N.LR.B., 290 F.2d 799, 802 (C.A. 4), and cases cited. MISSOURI BEEF PACKERS, INC. presence at the meeting amounted to surveillance over union activities. There is no evidence that Steve Davis was a supervisor or that he • was deputized by his father or any other representative of Respondent to attend the Brotherhood meeting. The mere fact that he was the son of a supervisor is insufficient to establish that he attended the meeting at the request of or on behalf of Respondent. And this deficiency is not supplied by the fact that he was not a member of the bargaining unit. In the first place, it does not appear that at that time the scope of the unit had been announced. The employees were all performing construc- tion work on March 6. All of them (except for a small group of cement workers) were excused from working in the afternoon for the expressed purpose of attending the meeting. There is no reason to conclude that Steve Davis attended for any reason but conformity with the general announcement. Accordingly, the Trial Examiner will recommend dis- missal of the allegation that Respondent engaged in surveillance of the employees' union activities. b. Interrogation Domingo Cortinez, Jr., testified that about 3 weeks after production started, Roberson asked him what he "thought about the union." Cortinez said that he "thought it was a good thing," whereupon Roberson said "that all we got out of the union was cheap." There was no further elucidation. On the basis of this testimony, the Trial Examiner is unable to conclude that in this instance Roberson coercively interrogated the employee. Cortinez also testified that sometime in April he was wearing an Amalgamated button on his cap. Roberson saw the button and asked where Cortinez had obtained it. When Cortinez said he had received the button from a friend, Roberson asked if it was employee Alex Rodriguez. Upon receiving an affirmative answer, Roberson asked where Rodriguez was working, but Cortinez did not know. That ended the conversation. The Trial Examiner credits Cortinez and finds that Roberson unlawfully interrogated him concerning his and Rodriguez's union sympathies or activities. c. Threats Employee Alfonso Maldonado testified that around the middle of April he went to Roberson's office to inquire about insurance benefits in connection with an illness of Mrs. Maldonado. Noting an Amalgamated button on Maldonado's cap, Roberson told Maldonado "to quit messing around with the [Amalgamated] union or he was going to lose all the benefits of the company." Roberson informed Maldonado that the insurance benefits were provided by the Brotherhood, rather than by the Employer. Cortinez, who was in Roberson's office at the same time, also said that he understood that the Company paid for the insurance, and Roberson said that it was the Brotherhood that provided the benefit. The Trial Examiner credits Maldonado, despite Roberson's denial. 44 Respondent's contract with the Amalgamated at Friona provides for employer contributions to the Amalgamated's health and welfare plan Such 189 The Brotherhood agreement in evidence provides that "the Company will provide full-time employees with .. . comprehensive individual and family insurance," the nature of which is specified. It thus appears that Rober- son's statements were not factual or informational. Although Respondent conceivably might not grant similar insurance benefits in a contract with the Amalgamated,44 this was not what Roberson said. In the context, his statements amounted to a threat of loss of company benefits if the employees should select the Amalgamated in place of the Brotherhood as their bargaining representa- tive. Employee Epifaio Martinez, a member of the Brother- hood's negotiating committee, testified that on Friday, March 5, he asked Roberson for his paycheck and Roberson replied that he would have to check with Mahon. Roberson made a telephone call and then gave Martinez his pay. Martinez did not hear Roberson's telephone conversation and could not say with whom it was. Respondent maintains that arrangements had been made with the Brotherhood representatives for delivering pay- checks to the union employee negotiators at the negotiat- ing session. In his brief, the General Counsel argues that the Martinez paycheck incident "evidences an interest on the part of Roberson to instill in the minds of the employees that any lack of support for the Brotherhood could result in an effect on the employees' employment status." In the Trial Examiner's opinion, this argument is totally unsup- ported by the evidence. Other allegations in the complaint of employer interfer- en^e, including prohibition of the wearing of Amalgamated buttons, are not supported by substantial evidence. CONCLUSIONS OF LAW 1. Since around the beginning of April 1971, Respon- dent has committed unfair labor practices in violation of Section 8(a)(1) by interrogating employees concerning employee sympathies and activities for the Amalgamated and by threatening employees with loss of benefits if they choose to be represented by the Amalgamated instead of the Brotherhood. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. The record fails to establish that Respondent has engaged in any unfair labor practices other than those found above. THE REMEDY Having found that Respondent engaged in unfair labor practices, the Trial Examiner will recommend a cease-and- desist order and the posting of notices customary in such cases. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the contributions were to replace a program provided by the Company before contracting with the Amalgamated 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, the Trial Examiner hereby issues the following recommended: 45 ORDER Respondent, Missouri Beef Packers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees in Plainview, Texas, with loss of benefits if they choose not to be represented by the International Brotherhood of Packinghouse and Dairy Workers; (b) Coercively interrogating employees concerning their union activities or sympathies or those of other employees; (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Post at its Plainview, Texas, plant copies of the attached notice marked "Appendix." 46 Copies of said notice, in both Spanish and English, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 47 IT IS FURTHER ORDERED that the amended complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices other than those found herein. 45 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 46 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 41 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read, "Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question our employees concerning their sympathies or activities for or against any union. WE WILL NOT threaten our employees with the loss of any benefits if they choose to be represented by the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other union instead of the International Brotherhood of Packinghouse and Dairy Workers. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aiti or protection as guaranteed in Section 7 of the Act, or refrain from any and all such activities. MISSOURI BEEF PACKERS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- Ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, A24, 8A24, 819 Tayler Street, Fort Worth, Texas 76102, Telephone 817-334-2921.