Wallace Metal Products, Inc.

WALLACE METAL PRODUCTS, INC. 819 Wallace Metal Products, Inc. and Upholsterers' Inter- national Union of North America, AFL-CIO. Case 10-CA-9047 October 18, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On July 20, 1972, Administrative Law Judge' Ramey Donovan issued the attached Decision in this proceeding. Thereafter, both the General Counsel and the Union filed exceptions and supporting briefs, and Respondent filed cross-exceptions with an an- swering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. ' The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 In adopting the Administrative Law Judge's finding that the card of Lee 'Roy Sears should not be counted, we are relying solely on the statements that were made to him that the card was "just to get an election " The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings 3 We agree with the Administrative Law Judge that the Union did not have a majority of valid cards on March 26, 1971, but we do not adopt his dicta concerning the use of authorization cards to obtain recognition where an employer does not commit independent unfair labor practices TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RAMEY DONOVAN, Trial Examiner : The charge in this case was filed on June 18 , 1971, by Upholsterers' Interna- tional Union of North America, AFL-CIO, herein the Un- ion or the UIU, against Wallace Metal Products, Inc., herein Respondent or the Company. A complaint was is- sued by the General Counsel of the Board on February 24, 1972. The complaint alleges that the Union represented a majority of the employees in a stated appropriate unit and that the Union made a demand for recognition upon Re- spondent on or about March 4 and April 1, 1971, and at all times thereafter and that, notwithstanding an agreed upon check of the Union's authorization cards on March 26, 1971, that demonstrated the Union's majority, Respondent, since on or about April 7, 1971, in violation of Section 8(a)(5) and (1) of the Act, has refused to bargain with the Union as the exclusive bargaining agent of the unit employ- ees. With the exception of the appropriate unit alleged, Respondent denies the allegations relevant to the alleged Section 8(a)(5) and (1) violations. The case was tried in Anniston, Alabama, on April 18-20, 1972. FINDINGS AND CONCLUSIONS I JURISDICTION Respondent is an Indiana corporation, with an office and place of business in Anniston, Alabama, where it is engaged in the assembly, manufacture, and sale of caskets. In 1971, Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside Alabama. Respondent is an employer engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background Although the principal events in this case took place in the February-April 1971 period some , antecedent back- ground facts are relevant. In 1971, Respondent owned and operated 3 plants in the casket industry. The home plant was in Richmond, Indiana. The instant union, UIU, was the collective-bargaining agent in that plant since approximate- ly 1962 and had contractual relations with Respondent dur- ing that period. In January, 1971, the most recent contract had expired at Richmond pursuant to notice of the parties. Although there was no strike after expiration and termina- tion of the contract, the parties were in negotiations for a new contract into March 1971 and had still been unable to reach agreement. The Company had another plant in Hazleton, Pennsyl- vania. This plant was evidently opened in 1965. Shortly thereafter, the International Union, UIU, assigned Pudlin- er, its district director for the New England and Middle Atlantic States, to the task of organizing the Hazleton plant. Pudliner secured signed authorization cards from a substan- tial majority of the employees and demanded recognition from the Company. Pursuant to mutual agreement of the Union and the Company, a card check was conducted by a neutral third party. The latter, after comparing the signa- tures on the cards submitted by the Union with payroll record signatures submitted by the Company, certified the 199 NLRB No. 127 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's majority status. Thereafter the parties negotiated a contract. In 1971, the most recent contract at the Hazleton plant was due to expire in June. The third and newest plant of the Company was under construction in Anniston, Alabama, in 1969, when Mac- Kenzie came with Respondent as executive vice president. His office was at the home plant in Richmond.' As execu- tive vice president, MacKenzie was Respondent's chief op- erating officer and, after he came with the Company, he was involved in all the union relations matters at Respondent's three plants. About September 1970, there was a wildcat strike at the Richmond plant. The Union's business agent at the Hazle- ton plant, Temprine, became alarmed about that strike be- cause it was already affecting the volume of work and material that was coming to the Hazleton plant from Rich- mond. Temprine took this matter up with the International Union and secured the assignment of Pudliner to the task of ending the strike. Temprine had also been in touch with MacKenzie by telephone. He discussed the Richmond situ- ation with MacKenzie, and Temprine expressed his concern about the effect on Temprine's constituents in the Hazleton plant. Temprine asked MacKenzie if he would be willing to discuss the Richmond situation with Temprine and the latter's superior in the Union, Pudliner. MacKenzie was agreeable to the suggestion and he, Temprine, and Pudliner met in Scranton or Wilkes-Barre, Pennsylvania. The overall result of Pudliner's intervention, as described by Pudliner, was that "I [Pudliner] completed the assignment, ended the wildcat strike, and returned to my usual duties."z B. The events in 1971 In early 1971, two union representatives or organizers, Newell and Brown, were in Anniston on business. While there, they also observed the situation at the Company's new plant. They satisfied themselves that the plant was operating and that a substantial number of employees were employed. After reporting these observations to their union supervisors, Newell and Brown were assigned the task of organizing the plant. The organizers, as well as their supen- ors, were of course aware that the Union represented the employees at the Company's other plants, in Richmond and Hazleton. Newell and Brown began contacting employees 1 Mr Wallace was president of the Company and majority stockholder Later, in November, 1971, MacKenzie became president and Wallace as- sumed the position of chairman of the board of directors 2 As district director of the Union's New England and Middle Atlantic region, Pudliner's normal jurisdiction and duties included the Hazleton plant Absent special assignment by the International Union, as described above, Pudhner would normally have nothing to do woth labor matters in the Richmond, Indiana, plant. The 1970 intervention by Tempnne, the Ha- zleton business agent, and his superior, Pudliner, in the Richmond strike, and MacKenzie's receptivity to their efforts, was due, in our opinion, in some measure, to the fact that the Company-Union relationship at Hazleton was a good one Pudliner described the relationship, after the Company had voluntarily recognized the Union at Hazleton on the basis of a card check in 1965, as "very good." Mackenzie testified that "the relationship there [at Hazleton] was substantially better than it was at Richmond .. " At another point MacKenzie made reference to "the situation in Hazleton where we had voluntarily recognized the Union.. and we had a rather decent relationship with them there, whereas Mr Wallace had fought the Union in Richmond and beaten them three times before they finally got in and, of course, it resulted in a very bad situation " at their homes around the middle of February, told them about the Union, and solicited them to sign union authori- zation cards. In the course of these contacts with employees, Newell was told that the Richmond plant was on strike. To ascertain what the situation actually was, Newell tele- phoned Graves, the Union's business agent at Richmond. Graves told him that at Richmond the contract had expired and that there had been negotiations but that the parties had not reached agreement. He said, however, that there was no strike. Graves then asked Newell why the latter, an organiz- er in the southern part of the country, was interested in the Indiana situation. Newell told him of the organizing effort being made at the Company's plant in Anniston. Graves asked Newell if he was aware that, at Hazleton, the Compa- ny had recognized the Union without an election. Newell said that he had not known that. Quite apparently interested by the last mentioned intel- ligence that the Company had granted recognition at Hazle- ton without an election, Newell telephoned Temprine, the union business agent at Hazleton. Temprine confirmed the fact of recognition having been granted without an election and of subsequent successful contract negotiations. Temp- rine spoke of the Hazleton union's good relationship with the Company's executive vice president, MacKenzie, and volunteered to speak to MacKenzie about the Union's or- ganizing activity among the employees of the Company's Anniston plant. Temprine asked if Newell had any objec- tion to Temprine feeling out MacKenzie about the possibili- ty of the Company recognizing the Union at Anniston. As Newell testified, "I certainly didn't [have any objection] and told him that any time we possibly could we always attempt- ed recognition first ... " MacKenzie testified that he did receive a telephone call from Temprine in February. He states that Temprine first talked about the situation in Richmond and asked about the negotiations there. Temprine then brought in the Anniston matter. He asked MacKenzie if he was aware of what was developing in Anniston. Temprine went on to say that a foundry workers union was in the picture and that that union had a bad history of strikes, and wages that were way out of line with wages in the casket industry. Temprine advised MacKenzie to call Newell in Anniston and the latter would tell him all about the Anniston situation. Temprine gave Newell's number to MacKenzie. Since nei- ther MacKenzie nor Newell Knew each other or had ever been aware of each other, it is apparent that Temprine, when he called MacKenzie about Anniston, had told him who Newell was and what his position was. MacKenzie said or indicated that he would telephone Newell. Temprine then telephoned Newell to advise him that MacKenzie would call Newell that evening. Both MacKenzie and Ne- well agree that the former telephoned the latter in Anniston. The time was about the middle of February. After Tempnne spoke to MacKenzie about the Rich- mond contract negotiations and the situation in Anniston, and after MacKenzie, at Temprine's suggestion, said that he would call Newell in Anniston, Temprine evidently got in touch with Pudliner. The latter testified that around the middle of February he received a telephone call from Temp- rine. The latter's topic in this call was the Richmond and 3 Tempnne was not a witness at the hearing WALLACE METAL PRODUCTS, INC. Anniston situations . Temprine asked Pudliner to intercede in the bogged down contract negotiations between the UIU's local union and the Company, at the Richmond plant. He told Pudliner that if Pudliner interceded in Rich- mond (quite evidently in the direction of bringing the op- posing contract bargaining positions into a more mutually palatable stance), MacKenzie had practically assured Temprine that the Union could expect to get direct recogni- tion as the bargaining agent in the Company's new An- niston plant. Pudliner told Temprine that, as district direc- tor in Pennsylvania for the Middle Atlantic and New Eng- land states, he could not get into the Richmond, Indiana, and Anniston, Alabama, situations without authorization from his superiors in the International Union. He indicated that Temprine would have to take his suggestion or proposal to higher echelons. Temprine apparently did so. A few days later, Wylie Smith, the International Union's director of organization, advised Pudliner that he was assigned to the Richmond contract negotiations to get the negotiations off dead center and to try to secure the consummation of a contract. Pudliner was further told that he was also assigned to the Anniston situation since the Richmond intervention could also result in the Union's receiving direct recognition at the Company's Anniston plant. Other events were taking place during this same period in February. After Temprine's conversation with MacKen- zie, aforementioned, MacKenzie called Newell in Anniston. MacKenzie's version of the conversation is essentially that Newell brought up two topics. One was the Anniston situation•'and the other was the contract negotiations at Richmond. On Anniston, according to MacKenzie, Newell mentioned the foundry workers union and said that that union was close to filing a petition for an election at the Anniston plant .4 According to MacKenzie, he told Newell that he, MacKenzie, had been opposed to having a plant in Anniston and that if any union filed a petition for certifica- tion at Anniston, Mr. Wallace would close the plant. This, according to MacKenzie, would be fine with him since it would eliminate the Anniston plant. MacKenzie stated that he told Newell that he was unaware of any foundry workers union activity among the Company's Anniston employees but that he did know that Newell's union, the UIU, had been contacting the employees. MacKenzie testified that Newell said that the other union could be headed off by the Company agreeing to recognize the UJU at Anniston. Re- garding Richmond, MacKenzie states that he told Newell that little progress was being made in concluding a contract although there were only a few unresolved issues. Newell then referred to Newell's conversation with Temprine and reminded MacKenzie how in the past Pudliner had success- fully intervened in a wildcat strike at Richmond and, in talking with Temprine, Newell told MacKenzie, it appeared that Pudliner might once again successfully intervene in the Richmond situation. MacKenzie testified that, although he was not certain that Newell said it in so many words, it "was very certainly implied" that a settlement in Richmond might be obtained in return for recognition of the Union in Anniston. A petition for certification filed with the Board is usually followed by a hearing and the Board ordering or conducting an election , assuming there are no legal impediments. 821 Newell's testimony, regarding his conversation with MacKenzie is also to the effect that they talked about the Richmond and Anniston situations. There is little doubt that, as Newell testified, his primary if not entire interest as an organizer assigned to Anniston, was to work out some kind of an arrangement with MacKenzie to secure direct recognition of the Union at Anniston. Considering both the testimony of MacKenzie and Newell regarding their con- versation, we believe that Newell raised directly or with obvious implication the possibility of the Union obtaining recognition in Anniston and a tie-in of Anniston recogni- tion with a possible settlement at Richmond. In doing this, reference was made to the foundry workers union interest in getting into the plant and the express or implicit sugges- tion that the UIU would be far better from the Company's standpoint. Newell also reminded MacKenzie that the Company had recognized the Union at Hazleton without an election. Principally because of what he had learned of the Rich- mond situation and from talking with Temprine, Newell, an organizer of 8 years experience, perceived or believed that the stalled Richmond negotiations offered leverage for his objective at Anniston. MacKenzie expressed great concern about the Richmond situation. It was the home plant of the Company, the locus of his own office as executive vice president and the headquarters of the Company. MacKen- zie made it clear to Newell that the immediate and direct responsibility for the outcome of the contract negotiations were on his shoulders since Mr. Wallace was in a semire- tired role. MacKenzie's basis reaction to Newell's words about the activity of the UIU and the foundry union was that Richmond was his prime concern and that he did not want to become involved in proceedings at Anniston. This reaction was no doubt triggered by what he had been told about the foundry union and the possibility of either that union or the UIU filing a petition for certification with a possible Board hearing at Anniston requiring MacKenzie's presence away from the critical Richmond situation. Newell states that, in substance, MacKenzie assured him that if the Richmond contract negotiations were consummated sat- isfactorily to the Company, and, if Newell instigated no Board involvement at Anniston by filing a petition at the plant in the meantime, the Company would recognize the Union at Anniston. After considering all the relevant evidence on the fore- going, it is the Examiner's opinion that while the proposition above and last described was not as neatly packaged as Newell's testimony would indicate, MacKenzie, in our opinion, did assent to and participated in the tie-in of Rich- mond with Anniston. MacKenzie and Newell mutually reached an understanding that the Union would not file a petition for Anniston while the critical Richmond situation remained unresolved and Newell assured MacKenzie that no petition would be filed before the Union first made a written demand for recognition on the Company. We be- lieve that MacKenzie did indicate that with Richmond set- tled the Company would be receptive to the possibility of recognizing the Union at Anniston without an election. There is no doubt in our mind that, from the time Temprine spoke to MacKenzie and in MacKenzie's conversation with Newell, MacKenzie was aware that the Union had in mind 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognition in Anniston in return for intervention with the Union's local in the bogged-down Richmond contract nego- tiations. If MacKenzie believed that from the Company's standpoint, Richmond and Anniston were two separate matters, he had only to say so. That would have ended the two plant parlay at its inception. If the Company wished to require an election at Anniston, it obviously could have said so as soon as Temprme and Newell raised the Anniston matter. The evidence is clear that the Company did not mention an election until April. If MacKenzie knew that Mr. Wallace would close Anniston if any union filed a petition for certification at that plant, and if MacKenzie, as he claims, would have welcomed the closing of that plant, it is difficult to understand his involvement with Tem- prine, Newell, and later Pudliner in the Richmond-Anniston axis.' After Pudliner was assigned to the Richmond and An- niston situations by his International Union, he telephoned Graves, the Union's business agent at Richmond.6 This call was to ascertain what the problems and issues were in the stalemated Richmond negotiations. He also called Newell at Anniston to learn the current status at that location. Newell told him that he had spoken with MacKenzie. He said that he and Brown, his fellow organizer, were going ahead and getting union authorization cards signed by em- ployees but that nothing further would be done pending the outcome of Pudliner's intervention at Richmond. Pudliner concurred and directed that he be advised 'when cards were secured from a majority of the employees. Pudliner telephoned MacKenzie on February 26 and had several other telephone conversations with him between that date and March 9. The substance of these conversa- tions was that Pudliner apprised MacKenzie of his assign- ment to the Richmond and Anniston situations. On Richmond, MacKenzie informed Pudliner that the parties had had a great number of meetings but had been unable to agree on several major issues. These issues were de- scribed. MacKenzie expressed the view that the local union simply did not wish to reach an agreement. Regarding An- niston, MacKenzie mentioned his conversation with Newell and said that he had asked Newell not to take further steps at Anniston pending settlement at Richmond since Mac- Kenzie considered Richmond, the home plant, to be all- important. MacKenzie also told Pudliner that he had doubts that Anniston was a good location and whether the Company would keep the plant open.? However, MacKen- 5 MacKenzie had never met Newell All he knew about him was that he was a UIU organizer attempting to organize the Anniston plant If Mac- Kenzie did not care what happened at Anniston and would have welcomed Mr. Wallace's closing of the plant as soon as a union petition was filed, we question why MacKenzie took the trouble to telephone Newell in Anniston after Tempnne had told MacKenzie of the situation in Anniston in the context of the Richmond negotiations . We believe that MacKenzie was aware of what the union representatives had in mind 6 These events were in the latter part of February, 1971. 7 MacKenzie testified that he had been opposed to the Anniston plant since he believed that it was not needed by the Company However, the decision to build the Anniston plant had been made prior to MacKenzie's coming with the Company The plant was under construction when he came and was operational in early 1971 The Anniston payroll for March 3, 1971, for instance, shows 52 production and maintenance employees in the appro- priate unit. At another point in his testimony, MacKenFie stated that he had made known to Mr Wallace his view that the Anniston plant was not needed According to MacKenzie, Mr Wallace did not agree "because he had out- zie informed Pudliner that, if the latter's intervention in Richmond was successful and resulted in a contract with which the Company could live, the Union would have direct recognition at Anniston, as had been the case at Hazleton. In the course of this series of telephone conversations with MacKenzie, Pudliner arranged a meeting on the con- tract at Richmond for March 9 at which he would be present, as well as the Company and local union negotiators, from the Richmond plant. MacKenzie also agreed to be present. Hav- ing been informed meanwhile by the Anniston organizers that they had secured authorization cards from a majority of the employees at the Anniston plant, Pudliner informed Mac- Kenzie of this fact. Pudliner also told MacKenzie that at his direction the Union would send a demand for recognition letter to the Company "for the record." A letter, dated Thursday, March 4, 1971, addressed to MacKenzie at the Richmond plant, was received on March 8 or 9. The letter, signed by Newell, stated that a majority of the employees at the Anniston plant in the appropriate unit (set forth in the letter) had designated the UIU as their bargaining representative. Continuing, the letter stated: This letter is a formal demand upon you to recognize the said union ... Mr. Ray M. Pudliner ... will be in your city Tuesday, March 9, 1971 to follow up this request ... If you desire to substantiate the majority status of the Union, we would be pleased to submit our authorization cards to a mutually acceptable third par- ty who can compare our cards with your most recent payroll list to verify that a majority of the employees have authorized this union to represent them. On March 9 Pudliner met in Richmond with Union and Company negotiators, including MacKenzie. The par- ties worked throughout the afternoon and into the evening. Pudliner states that a moderation on the part of the local union was achieved on one of the major issues although not to the extent that the Company would have wanted. He also states that a definite economic figure on monetary issues was obtained from both parties. At the time he left Rich- mond that evening, Pudliner asserts, the union committee had said that it would recommend approval of the terms to the local membership and the Company representatives had indicated their acceptance .8 Before leaving Richmond that night Pudliner asked MacKenzie whether he had received the Union's March 4 letter containing a formal demand for recognition at Annis- ton. MacKenzie said that he had received the letter. Pudliner then went on to say that when and if the Richmond contract- that the negotiators for both parties were recommending for acceptance-was approved and completed, MacKenzie should then get in touch with him in response to the recogni- tion demand in the Union's letter. MacKenzie agreed to do SO .9 lined to me [MacKenzie] the rapidly deteriorating situation in Richmond and the terrible labor situation that had developed " Therefore, Mr Wallace, it appears, at that juncture, definitely wanted the Anniston plant It also is the fact that at a Board hearing, in May 1971, on the Union's petition for certification at the Anniston plant, the Company presented evidence that it planned a substantial expansion of the plant both in equipment and in the number of employees 8 MacKenzie testified that there were more issues between the parties on March 9 when Pudliner participated then there had been before Pudliner's intervention 9 MacKenzie states that he believes that Pudliner called him from the WALLACE METAL PRODUCTS, INC. Both Pudliner and MacKenzie agree that the latter telephoned Pudliner at Sewickley, Pennsylvania, on March 12. MacKenzie said that the Company and the local union had had further discussions on the Richmond contract and there had been some modifications. He said that at a meet- ing of the local union the contract had been approved and the Company had approved and the contract was settled. 10 MacKenzie then went on to say that, in response to the letter of March 4, you have recognition at Anniston. He asked Pudliner to send him whatever papers were necessary. Pudliner said that he would advise the Union's legal depart- ment of these facts and that MacKenzie could expect to receive the necessary papers in the mail. We credit this testimony of Pudliner. 1 After the call from MacKenzie on March 12, as afore- described, Pudliner called his International Union to advise that the contract situation at Richmond had been settled and that the Company had recognized the Union at An- niston.12 Wylie Smith, the director of organization, the person to whom Pudliner had spoken, said that he would pass the above information to the International's counsel. Pudliner then telephoned Anniston and told Newell and Brown that the Richmond contract was settled and the Union had direct recognition for Anniston. Pudliner told the Anniston organiz- ers to tell the employees that the Union would soon have a meeting with the employees to elect a negotiating committee and to draw up a proposed contract to present to the Compa- ny.13 The next occurrence was that Pudliner received a call from Wylie Smith of the International Union on about March 15. Smith said that the Union's counsel took the position that direct recognition at Anniston was not airport on March 9 just before he left . According to MacKenzie , Pudliner said that the local union people at Richmond were a pretty bad group and not easily influenced but that Pudliner had done the best he could on the contract He asked MacKenzie to go along on the contract Pudliner then mentioned Anniston and expressed the hope that since Pudlmer had done his best at Richmond, MacKenzie should now recognize the Union at Anniston According to MacKenzie, he told Pudliner that he could not think about An- niston at that point because he was faced with a bad contract situation at Richmond In describing this conversation, MacKenzie does not assert that he told Pudliner that Richmond and Anniston were two different plants and that there was no connection between what took place at Richmond and what took place at Anniston, or that if the Union wanted recognition at Anniston it should file a petition with the Board and go to an election io The International Union countersigned the contract and thus manifest- ed its approval in May 1971. 11 MacKenzie testified that when he telephoned Pudliner, he was resigned to having a contract at Richmond that he considered to be bad for all concerned. He states that he told Pudliner that he was going along with the contract, however, in order to get the matter out of the way and settle it MacKenzie also testified that between March 9 and 12 there had been "a lot of activity" on the part of the local union negotiators at Richmond with the Company regarding a finalization of the contract and "we had many meet- ings in a very short time " In the conversation , MacKenzie states that Pudlin- er brought up the Anniston matter and mentioned , as he had previously, the idea of a union and companyjoint council that would include the Richmond, Hazleton, and Anniston plants. MacKenzie stated that he felt sure that he told Pudhner that he did not consider Anniston as part of the company operation "at that time " MacKenzie testified that he did not on this occasion tell Pudliner that he would recognize the Union at Anniston in return for the Union, intervention at Anniston The witness had also denied having said an ithmg like that to Newell or Pudliner previously. 2 This "direct recognition," as contemplated and achieved, had involved neither an election nor a card check 13 Brown testified that he had received this call from Pudliner and that he reserved a meeting room at a motel for April 7. 823 adequate and that a card check should be held to demon- strate the Union's majority. Pudliner called MacKenzie, March 17, to tell him that the International's counsel wanted a card check at Annis- ton. Pudliner asked if this would be agreeable to Mac- Kenzie. The latter said yes, whichever way you want it. MacKenzie went on to say that while he had completed the Richmond matter with the UIU, he still had other negotia- tions with the Teamsters but he hoped to have that finished and get down to Anniston the following week. Pudliner then called Brown in Anniston and told of the change in plans and that there would be a card check as required by counsel for the International Union. Pudliner said that some neutral public figure in Anniston should be obtained for the card check, such as a minister, priest, judge or such, and that the Union would pay the individual for his services. Pursuant to this call from Pudliner, Brown contacted' a member of the city council who put him in touch with some official of the Machinists Union in Anniston. Through the latter, Brown met the Reverend Belmont, pastor of the First United Presbyterian Church in Anniston. Belmont agreed to be available for the card check. Evidently a date was set for the card check when Mac- Kenzie was expected to be in Anniston. However, in talking with MacKenzie's Richmond office by telephone, Brown was advised that MacKenzie was in negotiations with the Teamsters and could not be in Anniston. Brown called Pud- liner who in turn called MacKenzie. Pudliner suggested that MacKenzie delegate to the Company's Anniston plant manager the matter of the attendance at a card check. Mac- Kenzie agreed. MacKenzie called his Anniston plant manager, Earl Smith. He told Smith briefly about the card check situation and asked him to represent the Company at the card check. Smith and MacKenzie testified that the latter told the for- mer that the card check was "a no obligation thing."" Earl Smith then called Brown in Anniston.15 Brown said he would call Smith as soon as arrangements for the card check were completed. In his second conversation with Smith, Brown told the latter he had secured a neutral party, the Reverend Belmont, to make the card check on March 26 and gave Smith the time and place. According to Smith, he told Brown that he had never been involved in a card check before and "asked him what I syould bring and so on. He told me to just bring a list of the employees at the plant ... [and the neutral party, Belmont would] check the cards against the list that we [the Company] provided ... 1116 Brown, Newell, Belmont, and Smith met at an Anniston Restaurant on March 26. Instead of a list of employees, Smith brought with him "the Company ledger book." 17 At the hear- ing Smith described the ledger book as a record "of all employ- ees who are employed at the plant." It contains the names 14 MacKenzie also states that Pudliner had told him that the card check involved no obligation and that it was simply a face saver for the Union According to MacKenzie, Pudliner explained that the face saving related to the fact that Newell had persuaded the foundry workers union to cease organizational efforts in the Anniston plant on the ground that the Company had invited in Newell's Union, the UIU 15 MacKenzie had told Smith to get in touch with Brown or Newell in Anniston regarding arrangements for the card check. 16 Brown's similar version is that he told Smith to bring the names of the employees on the payroll. 1 He stated that he did not bring a typewritten list of employees 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees and their biographical background and each employee had signed the ledger book when he went to work for the Company. The book also contains the names, back- ground, and signatures of employees who are no longer employed. 18 Smith made a rough guess at the hearing that the ledger book contained about 100 names but no names of supervisors. He stated that he does not believe that he told Belmont, Brown, or Newell that the ledger contained the names of past as well as current employees. There is no testimony from the other three participants that Smith im- parted the foregoing information to them. Belmont, a witness called by the General Counsel, stat- ed that, when Brown first contacted him regarding his avail- ability to conduct a card check, he explained the card check by telling Belmont that the latter would take the signed union cards "and check them against a list that would be provided." At the restaurant on March 26, according to Belmont, Brown gave him "a list of the employees;" Smith gave Belmont "a ledger which the employees had signed." It was made known at the restaurant that while Brown, Newell, and Smith remained at the restaurant, Belmont was to go to Brown's room in a nearby motel and check the cards. Brown also gave Belmont a typed form with some blank spaces thereon that Belmont was to fill out and thus certify the result of the card check. Belmont came to the motel room. Belmont stated, however, that he was not too sure whether the cards were given to him in the restaurant or whether they were already in Brown's room. Smith testi- fied that he saw no union cards at the restaurant. Brown states that in the restaurant, "we gave Reverend Belmont the signed cards along with an alphabetical list that was wrapped up in a little package with a rubber band;" Brown states that he understood that Smith had brought the signa- tures in some type of folder although Brown and Newell did not actually see the signatures.19 Newell testified that Smith brought a book to the restaurant and explained that it con- tained not only the names of employees presently employed but also their signatures. Brown and Newell had no objec- tion to the book and apparently did not ask to inspect it. Belmont testified on direct examination "Mr. Brown explained what was taking place and that I was to check the cards, and gave me a list of the employees, and I was about to go to the motel, to his room, to check the cards, and Mr. Smith stopped me and gave me a ledger that the employees had signed." A few lines later Belmont repeated, "I was supposed to check the cards against the list that had been provided ...." The General Counsel then asked: Q. You were supposed to check them against which list that had been provided? 18 Smith states that Brown had previously told him that Belmont would check the union cards "against our list . I sort of felt that the reverend would rather check it against signatures rather than a typewritten list " Brown testified that Smith had told him that he did not know if the cards were authentic and that he would bring signatures. In the Examiner's opinion the foregoing tends to indicate that Smith understood basically what was involved in the card check and he brought the signatures in the ledger book to insure that Belmont could satisfy himself of the authenticity of the card signatures by comparing them with signatures in the book. 19 The Examiner interprets this to mean that a small package of cards and an alphabetical list, held together by a rubber band, were given to Belmont, by Brown, and Smith gave Belmont, what Brown refers to as a "folder" (evidently the ledger book) with the names and signatures of the employees. A. The typed list and also I checked them against the ledger. Belmont went on to say that he checked the cards against "the typed list ... and then I went back and checked them against the ledger to see if they had really signed the cards." Q. [G.C.] And you did this with every card the union had provided; you checked them against the union's list and them against the Company's ledger, is that correct? A. Right. Q..... Did you count the names on the ledger provided by the Company to see how many were there? A. No. Q. Did you count the names on the list furnished by the union? A. Yes, I think there were about 40 names 20 Belmont stated that there was a total of 39 cards that he had been given; 33 cards bore names corresponding to names on the typed list that had been given him as aforedescribed; he then compared the signatures on the 33 cards with signa- tures of persons of the same name in the ledger. Belmont then filled in the above appropriate data on the copies of the form that had been furnished by the Union and signed it. He returned to the restaurant and copies of the completed form were given to Brown and Smith21 Smith testified that,he brought no typed list of employ- ees to the restaurant on March 26 and that the only thing he brought was the ledger book. Neither Brown, Newell, nor Belmont testified that Smith brought anything but the ledg- er book to the restaurant. Belmont, on direct examination, as we have seen, testified that the typed list of names was furnished by Brown. This was the list against which Bel- mont checked the names on the cards before verifying the card signatures with signatures in the ledger. Brown also, as previously described, testified that he gave Belmont the list of names. We are satisfied that the list of employees against which Belmont checked the names on the union cards was a list prepared and furnished by the Union. When a name on a card was also found on the list, Belmont then checked the signature on the card with a signature of the same name in the ledger book. If he satisfied himself that the two signa- tures were the same, he counted the card as valid.22 20 At the restaurant, before Belmont went to the motel to check the cards, Brown testified that he gave Belmont the cards and a list of names Q You gave him, at that time, the cards that you had? A Correct Q And you gave him a list with the names? A Yes, sir Q. The list had 33 names on the list? A 33 names and 33 cards 21 The Company payroll on the regular payroll date of March 24 contained 42 unit employees On March 26 there were 40 on the unit payroll 22 The certification form that Belmont completed after he had made the card check states that "The Employer" had furnished a list of employees and that the cards were checked against that list However, as will be seen when the form is discussed in the next paragraph of this Decision, the words "The Employer" had been typed into a blank space on the form before Belmont received it. All spaces filled in on the form by Belmont were in his own handwriting On redirect examination of Belmont, after the latter had testi- fied about the list of names given to him by the union representative in the restaurant on March 26, the General Counsel called the witness' attention to WALLACE METAL PRODUCTS, INC. 825 The form that Belmont filled out and signed was print- ed or mimeographed. Newell testified that it was a standard form used by the Union for card checks. The form recites that the undersigned "has been jointly requested and ap- pointed by the [UIU] and 23 to conduct a card check among the following employees of "Employer mentioned above."* [* Typed in as shown.] The unit descrip- tion is then typed in and followed by the printed wording: I have conducted this card check in the following man- ner: representatives of the Upholsterers' Union have deposited with me cards signed by employees in the abovedescribed unit by which cards the signing em- ployees have designated the Upholsterers' Union as their collective-bargaining agent in dealing with their collective-bargaining agent in dealing with their em- ployer Wallace Metal Products.* The Employer* has deposited with me a complete list of all employees in the abovedescribed unit. I have compared the signed cards supplied me by the Union against the list of all employees in the unit described above supplied me by Wallace Metal Products.* I have conducted this card check on the 26th** day of March 1971** and have found the following results: That 33** number of employees, out of a total num- ber of employees of 39** have designated the Upholsterers' International Union 'as their collective-bargaining agent. This means that a ma- jority of the employees in the abovedescribed unit have designated the Upholsterers' International Un- ion as their collective-bargainmg agent. /s/ Rev. Billy J. Belmont"" After Belmont completed the card check, returned to the restaurant, and gave copies of the completed form, above described, to Smith and Brown, no one raised any ques- tions or objections. Smith testified that while he was at the restaurant Brown and Newell asked him if they could tour the plant sometime. Smith states that he had no objection to their coming but suggested that it be done after working hours. Smith states that he told the two union representatives that if they got in touch with him beforehand he "would be more than glad" to show them the plant after hours. Newell's testimony is to the same effect. the following in an affidavit by Belmont - "This certification for was dated March 26, 1971, by me and signed by me, and I stated that I had found that 33 out of 39 employees on the list furnished by the Company had signed union cards." Belmont then testified that he could not remember whether it was Brown or Smith that furnished him with the list As indicated, the Examiner believes that the evidence , including Brown's testimony and Belmont's testimony on direct examination, as well as Smith's, fully supports the conclusion that the list of names of employees used by Belmont in his card check was a list furnished by the Union and that the ledger book was used to verify signatures on cards that bore names that appeared on the list of names. 23 The blank spaces on the form have a line underscoring the space. In this first space the name of Respondent has been typed in. 24 Blank spaces on the printed form were filled in by typewriter and long- hand Single asterisks above designate that the blank was filled by typewriter as shown Double asterisks indicate the spaces were filled by longhand writ- ing. In short, Belmont, in longhand, wrote in the day, month, and year, the numbers 33 and 39 and signed his name The form had been otherwise completed before Belmont received it Following the March 26 card check , aforedescribed, several events took place . Newell and Brown advised their International Union and Pudliner of the results of the card check. Pudliner directed them to advise the employees of the result and to secure a meeting place and schedule a meeting of the employees at which a contract negotiating committee would be selected and the terms of a proposed contract would be drawn up. A meeting room at a local Holiday Inn was then reserved for April 7. Pudliner presid- ed at that meeting which was attended by approximately 20 employees . A negotiating committee was selected and con- tract proposals were drawn up. Meanwhile, also after the card check, the local area newspaper, the Oxford Sun, published on Wednesday, March 31 , a front page headline and story: Union Favored by Employees in Plant ... The story recited that "an overwhelming majority" of the employees at Wallace had signed up to join the UIU and 33 of 39 employees were found by the Reverend Belmont in a card check to have chosen the Union. Continuing, the story said that Brown, union organizer, told the Sun that negotiations should commence shortly between the Compa- ny and the Union; however, the account stated, the local plant manager had told the Sun on Monday, March 29, that the next step is not clear and that no decision had been reached on whether the Company would recognize the Un- ion. Smith said the decision would have to be made by MacKenzie of the home office in Richmond, Indiana. The story said that the Sun had been unsuccessful in trying to contact MacKenzie by telephone to Richmond 25 Under date of April 1, 1971, Pudliner wrote to Mac- Kenzie. He stated that he had been advised of the result of the card check held by Belmont on March 26 which con- firmed that a substantial majority of the employees had designated the Union as their bargaining representative. Therefore, we hereby request that you and/or your representatives meet with us in the near future ... to negotiate the terms and conditions of employment at such plant. The Union is holding a meeting to draft its proposals for a contract on Wednesday, April 7, 1971, and, given time to reduce such proposals to writing and for forwarding them to you, we should be able to meet in the week beginning April20, 1971. Please contact me to complete such meeting arrangements ... The letter, on its face, shows covering copies sent to Newell, Brown, Graves, and Temprine.26 25 Brown's testimony indicates that he was contacted by the newspaper and that the story was substantially correct as to what he said Smith's testimony is also to the effect that he was contacted by the newspaper and that he told the paper that the ultimate decision on the matter rested with MacKenzie Smith also stated that on March 26, after the card check, he had said the same thing to Newell and Brown when they asked him about the Company's position in view of the card check result. 26 Although not commented upon by any witness nor by counsel in their briefs, the fact that the letter showed that copies of the letter were sent to Graves and Tempnne is not without some significance. The letter dealt with the Anniston, Alabama, plant situation and ordinarily would not have any relevance to Graves, the union business agent at the Richmond, Indiana, plant or to Tempnne , the union business agent at the Hazleton plant. Pudliner's letter of April 1, with covering copies to Graves and Temprine, was, in effect, the fruition of the Richmond-Anniston tie-in and Graves and Continued 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letter dated April 7, 1971, MacKenzie wrote to Pud- liner in response to the latter's letter of April 1. MacKenzie wrote: I sent a copy of your letter of 4/1/71 to Mr. Walter E. Wallace who is the president of our corporation and he informed me today that `the UIU has been responsible for the destruction of his business' . . . the bizarre behavior of the UIU has resulted in the Company in- curring severe losses in recent years .... You saw for yourself, Ray, that your presence here [at the Richmond contract negotiations] made no im- pression whatsoever on these people [the local union negotiators at Richmond] and on your admission that the situation was hopeless, Dust caved in and accepted a contract which will further weaken an already bad situation. To deliver the entire operations [with An- niston the Union would represent the employees in all the Company's plants] to a group which apparently by your own admission cannot be controlled even by an officer of the International Union would I am sure you will agree, be suicide. It is Mr. Wallace's firm conviction, Ray, that if the UIU is in Anniston, Wallace will not be there. Pudliner was out of town and not in his office for about 2 weeks and when MacKenzie's letter of April 7, addressed to Pudliner at his home and office in Whitehall, Pennsylva- nia, arrived, Pudliner did not see it immediately. After read- ing the letter, Pudhner states that he was surprised and shocked. He then conferred with the International Union's director of organization and with its counsel. Pudliner next called MacKenzie about April 19, Monday. MacKenzie said that: ... Mr. Wallace really and truly was back in the picture and that things were quite upset, that Mr. Wallace had received a news clipping from Anniston [evidently the Oxford Sun newspaper story earlier described] and some telephone calls from a local business develop- ment committee who were responsible for gathering industry into Anniston, and that he, Mr. MacKenzie, was upbraided [for] bringing the Union into Anniston by Mr. Wallace. MacKenzie went on to say that the Union should not have- proceeded "as fast" as it did and that the use of a black organizer and a black person to conduct the card check had given rise to unfavorable comment27 MacKenzie also said that Mr. Wallace "was very upset" and was going to stop off in Anniston on his way back from Florida so that he could see for himself what the situation was. Pudliner sug- gested that he meet with Mr. Wallace and explain that the union organizers had gone to Anniston and were active there before MacKenzie was aware of the fact and that MacKenzie had not invited them in and that a card check did not constitute inviting the Union into the plant. Mac- Kenzie expressed the view that this proposal of Pudliner's to speak to Mr. Wallace might be helpful. He said he would contact Pudliner after talking to Mr. Wallace. We credit the foregoing testimony of Pudliner.28 Temprine, who had been involved in the inception of the tie-in, were now among those being advised that the matter had reached the stage of arranging contract negotiations at Anniston 27 Union organizer Brown and Reverend Belmont were black By letter dated April 20, 1971, MacKenzie wrote to Pudliner stating: Mr. Wallace arrived in Richmond today having spent all day Monday in the Anniston plant. It is his decision that we are not going to recognize any union in Ala- bama unless the union is voted in by the employees in an election conducted by the appropriate Federal Agency. In that case, we shall abide by the outcome of the vote. Pudliner did not receive the above letter at Whitehall, Pennsylvania, until after April 23. On April 23 Pudliner had mailed a letter to MacKenzie renewing the request for the commencement of contract negotiations and enclosing cop- ies of a proposed contract. The Company refused service of the letter and its enclosures and they were returned to Pud- liner. Thereafter, when Pudliner telephoned MacKenzie's office, a secretary told him that Anniston matters were to be taken up with the Company's attorney. On April 30, 1971, the Union, through Brown, filed with the Board's regional office, a petition for certification at the Anniston plant. A hearing was held in May, 1971, and the Decision and Direction of Election issued on June 3, 1971. Thereafter, according to Brown, he concluded that the Union's majority had slipped and that "we probably wouldn't win an election. I couldn't be certain of that." On behalf of the Union, Brown then filed the instant charge against the Company on June 18, 1971. Under Board proce- dure the charge blocked the further processing of the peti- tion for certification and the implementation of the Direction of Election. C. The Signed Authorization Cards A substantial part of the hearing involved testimony of witnesses regarding the signing of union authorization cards intorduced by the General Counsel.29 Ronnie Goodson:30 Unit employee employed from,Oc- 28 MacKenzie testified that Pudlmer did suggest a meeting with Mr Wal- lace but that MacKenzie said that he did not think Wallace would meet with him, that he told Pudliner that Wallace had received a copy of the Oxford Sun story "which had indicated that we had recognized the Union" and I told him [Pudliner] that he [Wallace] had called me immediately upon receiving that and wanted to know whether or not that was the case and I assurred him it was not " MacKenzie states that Pudliner said that in the past the Company had recognized the Union at Hazleton without an election MacKenzie asserts, however, that he told Pudliner in this conversation that ".Mr Wallace hadjust recently in fact learned there had not been an election in Hazleton and he was pretty upset about it " Referring to the employees, MacKenzie testified that he told Pudliner that he had neither the authority nor the right "to hand them over to any union" but that the Company was willing to go to an election According to the witness , Pudliner threatened to put the Company out of business and said that if the Company wanted to fight in Anniston it would go down fighting MacKenzie states that in the conversation with Pudliner there was, he believes, some reference to a black union organizer 29 The printed cards read Upholsterers' International Union of North America AFL-CIO I do hereby designate and authorize the Upholsterers ' Union of North America, AFL-CIO, and its representatives to act as my representative for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment Signed (Name) (Date) 30 As in many or most instances of individuals' testimony regarding what was told to them when they signed their cards , the examination frequently WALLACE METAL PRODUCTS, INC. 827 tober, 1970, to August, 1971. Newell gave him a card at his home. Goodson read the card before he signed it. He signed the card, General Counsel Exh. 4, on the date it bears, February 22, 1971. The witness stated that Newell told him the card "would help recognize the majority to get an elec- tion ... help recognize the majority." He then admitted that, in a June 1971 affidavit taken by the Company attorney at the plant, he said that Newell told him that the card would be used only to get an election 31 On redirect examination, Goodson stated that his first statement on the witness stand as to what Newell told him was the correct one and Good- son repeated that Newell told him that the card "was to help recognize the majority, dust to help recognize the majority." The Trial Examiner finds that Goodson's card is valid and that he was not told that the card was only for the purpose of getting an election. Larry Joe Gilbert: This former unit employee had diffi- culty in remembering some former events. However, he identified his signed card, dated February 25, 1971, and said that he signed the card on that date and that he was em- ployed by Respondent when he signed. The fellow employ- ee, Stewart, who gave him the card, told Gilbert that "it was to put a union over there." We find Gilbert's card to be valid for the period from February 25, 1971, to March 3, 1971, inclusive. The last payroll of Respondent's on which Gilbert appears is the payroll ending March 3, 1971. He does not appear on the March 10 payroll. The Examiner will not find that Gilbert was an employee after March 3, 1971, since we believe that the record evidence will not support such a finding. Neither party at the hearing presented evidence that warrants a different finding. A party desiring to show that Gilbert worked after March 3 had the burden of proof, in our opinion. It is our opinion that the Union's demand for recogni- tion by letter of March 4, 1971, received by Respondent on March 9, was a continuing demand. The critical date of majority status was March 26. Referring to the estab- lishment of union majority by reason of the March 26 card check, the union letter of April 1, implicitly contained the continuing demand for recognition, and, indeed, recogni- tion was assumed to have been a fait accompli since arrange- ments for the negotiation of a contract were the crux of the letter. Respondent's letter of April 7, without contesting the Union's claim of vindicated majority as of March 26, ad- dressed itself to the union claim as made (proven majority on March 26). Respondent's reply, in essence, was that if the Union was in the Anniston plant as bargaining representa- tive "Wallace will not be there"; i.e., the plant would be closed or would not be operated by Respondent. We regard the Respondent's letter as a refusal to recognize the Union's went back and forth from direct to cross-examination, redirect and recross, and so forth, with the testimony flexing in various directions regarding pre- cise words or phrases recounted by the witness . The situation is generally compounded where witnesses have been interviewed prior to the hearing by counsel for the respective contending parties and where affidavits are pro- duced to show or to attempt to show variances between testimony and prior statements In any event we have heard the witnesses testify and we have considered all aspects of their testimony , not only in its own aspects but in the overall context of the evidence in the entire case. 31 In June, after the Union had filed its charge , the company attorney and plant manager, Smith, interviewed and took statements from various employ- ees in a room or office in the plant. claimed majority status of March 26 and a denial of recog- nition and a refusal to bargain.32 Respondent's letter of April 20 did not alter the critical date of March 26 as the date when majority is to be determined. The letter simply stated that the Company would not recognize the Union unless the Union was "voted in" in an election.33 William Nelson: was employed from February until June 1971. He denied that the signature on the card, dated March 2, 1971, was his. The evidence, in the Examiner's opinion, was insufficient to warrant a finding that the signa- ture on the card was that of Nelson. The card was rejected. Danny Payne: was employed from about January to July 1971. He identified his signature on a card he signed on February 23, 1971. Employee Randy Goodson had given him the card. Payne testified on direct examination that, as well as he could recall, Goodson told him the card "was to see if a majonty wanted an election." Payne repeated this on cross-examination and Respondent's next question was: Q. Did he say that was the only thing it was going to be used for? A. Right. Q. The only thing it would be used for is to see if the majority wanted to have an election? A. To the best of my knowledge, yes. On cross-examination the witness was asked to repeat Goodson's exact words as well as he could remember. He replied, "To see if a, if the majority of the people, to get an election, you see a majority, the card was used for getting the majority of the people to see if they wanted an election, as I understood it." Payne testified that he believes that he read the card before he signed it but added, "I'm not for sure." The Examiner believes that Payne read the unambigu- ous card before he signed it and that employee Goodson told him that the card "was to see if a majority wanted an election." The latter was one of the potential legitimate purposes of the card. We consider the card to be valid. Lee Thomas People: a former employee of Respondent, was employed by Respondent for about a year and that year included February-March 26, 1971. People can neither read nor write. He testified that Brown came to his home.34 Brown produced a card and said "the card was to have 32 We are not at this point stating our conclusion as to whether there was a violation of Section 8(a)(1) and (5) of the Act. 33 On June 5, 1972, after the close of the hearing, the Examiner received from Respondent a Motion to Reopen and Correct the Record. The motion pertained to the dates of employment of employees Gilbert and Moates The motion as to Gilbert includes an affidavit of plant manager Smith to the effect that Company records show that Gilbert was first hired on February 1, 1971, and was terminated March 5, 1971; a photostat of an alleged Compa- ny record is included The General Counsel opposes Respondent's motion as untimely because Respondent could have presented such evidence at the hearing either through witness Gilbert or witness Smith. The General Coun- sel also states . "In its brief, General Counsel assumed that Gilbert was not employed after March 9, 1971, and ultimately his card was not relied upon in establishing majonty status as of any of the demand dates utilized The whole issue is therefore rendered moot." Respondent's motion with respect to Gilbert is denied . In view of our opinion as to the material date or dates in the refusal to bargain issue, no useful purpose will be served by granting the contested motion The General Counsel has not affirmatively accepted the accuracy of Smith's affidavit or the authenticity of the Company record and to further explore this aspect with potential expenditure of time and money is not , in our opinion, warrant- ed 34 Newell was with Brown 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an election, or something for the Union." Brown read the card to him. People then took the card to his wife who was also at home. She read the card to People and said this card is "for the Union," adding " . . . this card is pretty good, go ahead and sign it." People then states he made an "X" on the card and his wife signed his name. The evidence is not clear whether it was People's wife or Newell who filled out the card on this occasion. The card is dated February 23, 1971. People stated, that the card was read to him before he affixed his mark. In an affidavit taken by a Board agent, People said the card was not read to him before he signed. This was called to his attention by Respondent's counsel. People then said that he made his mark on the card as his wife read the card to him. It is our opinion that the catalyst that preceded People's marking the card was his wife's read- ing of the card and her statement to him that the card was "for the union ... this card is pretty good, go ahead and sign it." He probably started the marking process as this was said. The appearance of the ink "X" on the card and our impression of the witness indicates that grasping the pen and guiding it into an"X" was not something that People did with quickness, ease, and facility. We believe his wife had substantially or wholly completed her role when her hus- band made his mark. We consider the card valid. Henry Smith: was employed by Respondent from Oc- tober 1970 to the second week in March 1972. While work- ing in the plant, fellow employee handed Smith the union card and gave no sales talk or explanation. Smith read the card, then signed it, and returned it to the other employee. The card is dated March 3, 1971, and that is the date he signed. The witness volunteered at the hearing that he signed the card to get an election. We consider the card to be valid.35 John Larry Poore: was employed by Respondent at the time of the hearing and in March, 1971, when he signed a card. Employee Isbell gave him a card. Isbell asked him to sign for the purpose "of getting a majority ... to see how many they could get to sign the card and to see if they had enough for an election ... if they would get the majority of the people, then they would have an election." Poore read the card before he signed it on March 4, 1971, and gave it to Isbell. In an affidavit secured by Respondent in June, 1971, Poore stated that Isbell told him the card "was to be used only to see how many people were in favor of having a union election to see if the employees wanted a union to represent them." After this was called to Poore's attention by Respondent, Poore agreed that was "the way he recalled it." In the affidavit, Poore also said that Isbell stated "the union could probably help us." In the Examiner's opinion, Poore, before signing the card, had read it and a fellow employee told him that the purpose was to get a majonty of the employees to sign so that they could have an election and that having a union probably would be helpful to the employees. We consider the card to be valid. James Adams: has been employed by Respondent about 14 months. He signed a card, while so employed, on February 25, 1971. Employee Turner handed him the card and said, "we are trying to get a majority to vote here in the 35 In going over the cards at this time we are determining validity as of the date of the card and only for the subsequent period while the signer remained in Respondent's employ. plant to get a head count to get an election." Adams asked, "Am I signing for the Union?" Turner said, "No, you can't get a union just like this, you've got to have a head count election in the plant ... you are under no obligation by signing the card." In an affidavit given to a Board agent, Adams affirmed that Turner had told him that the card entailed no obligation on Adams' part with respect to the Union. The Examiner does not find this card to be valid since, when Adams asked Turner if signing the card was a pro union action (for the Union) he was told it was not. Adams' question to Turner and the response was more than assurance of no obligation. Charles Creswell: still employed, has been an employee for 15 months including February and March, 1971. Em- ployee Turner solicited him while they were in the plant. Creswell signed the card for Turner at that time, March 23, 1971. According to Creswell, Turner spoke to him and oth- ers about the cards "all morning" and Creswell then signed a card after lunch. Despite this relatively long period, the witness states that, before signing, he read only the top or initial wording on the card, "Upholsterers' International Union of North America, AFL-CIO" and not the 3-1/2 additional lines on the card.36 Turner told him the cards "were supposed to be to show the Union would have a majority of the people there, so they could get an election in." Creswell also attended a union meeting at which he states that Newell "said the same thing" (as Turner) "that they need the cards for a majority ... he wanted about 55 percent of the cards signed to make sure ... that he had enough to go in with an election and win it." The Examiner finds Creswell's card to be a valid designation of the Union as bargaining representative. Victor Morales: was employed by Respondent when he signed his card and he is still in Respondent's employ. Mo- rales states that he attended several union meetings after work. A fellow employee gave him a card and Morales signed it on March 2, 1971 at one of the union meetings. Morales states that he believes he read the card before sign- ing. At the two union meetings he attended, Morales said the speaker spoke for a long time. All Morales recalled, however, was that at one meeting the talk was about "what holidays you want"; at the other meeting there was talk "about getting a contract with the Company" or something like that. The witness did not recall at which meeting he signed a card. The employee who gave him the card said they "were trying to get an election . . . for the highest majority ... they have to have over half of the people ... to have an election . . . " The Examiner believes that having read the card and having gone to union meetings, Morales made a valid designation of the Union when he signed the unambiguous card. We find the card to be valid. Randy Goodson: is employed by Respondent and he was employed when he signed a card on February 22, 1971. Goodson testified that Newell came to his home and asked him to sign a card. The witness states that he "didn't want to sign the card just like that" and told Newell "that I didn't actually want to fool with it." Goodson states that Newell then drew a paper out of his pocket and showed Goodson some of the union wages that the people in the Richmond plant were receiving, "people that was in Richmond getting 36 The complete card is set forth earlier in our decision WALLACE METAL PRODUCTS, INC. all that good money, so I seen it, and I signed it [the card]." Goodson asserts that Newell told him he would not be obligated by the card. Newell testified that he told Goodson that the Union represented the employees at the Company's Richmond and Hazleton plants and also told Goodson of the benefits those employees enjoyed. Newell states that he told Goodson that it was necessary to establish a majority status through cards and the cards would be used to establish the right to bargain with the employer. Throughout the organizing campaign Newell asserts that he and Brown used the theme with em- ployees that, in view of the existing relationship between the Company and the Union at the other plants and the way recognition had been granted at Hazleton, the Company would probably give recognition of bargaining rights at An- niston if the employees wanted such rights. Goodson acknowledged that he had signed the card, General Counsel Exhibit 15, after he was shown the wage rates in the unionized Richmond plant, and that this oc- curred on the date shown on the card, February 22, 1971. He also wrote his address and the name of his Company on the card, all on the appropriate lines, but states that he did not read the card because Newell said it was unnecessary. Goodson states that Newell had told him " . . . you [Good- son] don't even have to put your name and address on it [the card] .... This card don't mean nothing, you can take it out and bury it if you want to, bum it, or anything." Accord- ing to Goodson, Newell said "this card is for us to get a head count to see if we can get enough for the labor board to recognize the Union ... if we could get over 50 percent of the employees to sign, they would turn it in some place and they would get them to recognize to have a union, or some- thing like that, recognize for a vote ... we would get enough to take to this place and they would turn it over to the Company stating that the Company would have to give us an election for the Union." Newell came to Goodson's home on February 22 as a perfect stranger. Newell does not live in Anniston. He lives in Harrisburg, North Carolina. He no doubt introduced himself to Goodson when he came to the latter's home. We do not believe that, after producing the union authorization card, he told Goodson that the card meant nothing, that Goodson could take it and bury it or burn it and that Goodson didn't "even have to put your [Goodson's] name and address on it." After such advice from a veritable stranger, why would Goodson take this assertedly meaning- less card and fill it out on the respective correct blank lines with not only his signature but his address and the name of his employer. Did Newell's alleged offer to let Goodson bum or bury the card refer to a blank card? Burying or burning a blank card would make no sense and serve no purpose of either Goodson or Newell. Was it an offer to let Goodson bury or bum the card after the employee had taken the trouble to sign it and fill it out? This again is incomprehensible from the standpoint of either man. Why would Goodson wish to destroy the card as soon as he signed it, and, in any event, it was given to Newell and not left in Goodson's custody after the latter signed it. Why would Newell tell Goodson he could destroy the completed card. Newell was an organizer of many years' experience and if he invited employees to burn or bury authorization 829 cards when they signed them, he would be a nonorganizer and unable to file petitions with the NLRB, participate in card checks, or to perform any useful function for his em- ployer, the Union. Newell may have told Goodson that the card did not obligate him. The fact is the employee by signing the card was not obligated to join the Union; he was not obligated to pay union dues or anything else; he was not obligated to vote for the Union if there was an election; he was not obligated to attend union meetings ; he was not obligated to assist the Union although it is uncontroverted that on February 22 Goodson told Newell at the end of their conversation how to reach the home of Goodson's brother, Ronnie, also an employee 37 On all the evidence, the Exam- iner finds that Randy Goodson's card is valid. Kenneth Smith: is employed by Respondent and was so employed when he signed a card on February 25, 1971. According to Smith, Ronnie Goodson spoke to him in the plant and said that he, Goodson, had been talking with a union representative who was going to see "about getting a union in the plant" and Goodson asked Smith if he would sign a card. Smith signed.38 The Examiner finds Smith's card to be valid. Eugene Grissom: has been employed by Respondent for about 15 months. He identified a card as having been signed by himself and on which he had also written his telephone number. The witness states that the date he signed was March 3, 1971, although the "3/3/71" and the address on the card was filled in until several months later by a Board agent in the course of a conversation with Grissom. Grissom testified that employee Payne had originally solicited him to sign the card, saying that it was to see "if we could get enough to have an election," and that there was no obliga- tion. Although Grissom signed the card, he telephoned un- ion representative Brown 2 or 3 days later and asked for the return of his card. Brown told him that the card entailed no obligation but Grissom said that he would rather "have it back." Brown agreed to return the card but Grissom then told him to "throw it in the trash." In the Examiner's opin- ion, the card had validity for the period of about March 3-6, 1971, but not thereafter. We believe that Grissom effectively revoked or rescinded his card in his conversation with Brown as abovedescribed. James Vise: has worked for Respondent since October, 1970. Newell had been to his home to talk to him about signing a card. At the time, Vise told Newell that he would probably sign a card later. Vise testified that, as well as he could remember, Newell had said that they were trying to get enough cards so they could get an election. The witness also testified that he had read the card before signing and that he signed the card on March 24, 1971, a few days after Newell had visited him at his home. The Examiner finds this to be a valid card. John Garland Bramlett: has been employed by Respon- dent for about 14 months and was so employed on March 3, 1971. He testified that a fellow employee, Raven, handed him the card in the plant and said that "it was dust so we 37 Newell secured the latter's card the same evening 38 In an affidavit given to the General Counsel, Smith had stated that Goodson told him that the purpose of the card was to get an election At the hearing, Smith said that the foregoing was not exactly the way he recalled Goodson's conversation 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could get an election." Bramlett took the card home and signed it there, March 3, 1971, and then returned it to Rav- en. He states that he did not read the card before signing. In view of Raven's representation to Bramlett of the sole purpose of the card, we find the card to be invalid. Lee Roy Sears: has been in Respondent's employ for about 1-1/2 years and he was employed by Respondent in February and March 1971. A fellow employee asked him to sign a card, saying "we are trying to get more money, we are trying to get an election," that the card was "just to get an election if we could get more than half the people to sign." Sears admits signing the card and filling in his address and the name of the Company thereon. He states that he did not read the card before signing. Sears testified that he does not recall when he signed the card, or whether the date of "2- 25-71," which is on the card, was there when he signed it. He states that the "2-25-71" is not in his handwriting. In an affidavit to a Board agent in December 1971 Sears stated that he signed the card on February 25, 1971, but he testified that he does not recall whether, at the time of the affidavit, his card was dated. The witness testified that he had re- ceived shock treatments for nerves and that this affected his memory. Sears could not remember when these treatments were started, whether 3, 4, 5, 6, or 7 months ago, or whether he had given his affidavit to the Board agent prior to these treatments. It is the Examiner's opinion that the date on the card was not inserted by Sears. He so testified, and, in the Examiner's opinion, the date on the card was written by a hand different from the hand (Sears') that signed the card and filled out the address and other data 39 In our opinion there is too much uncertainty as to the date when Sears signed the card to warrant the card being counted as valid for any relevant date or time. Moreover, Sears, among other things, had been told that the card was "just to get an election." David Poore: is presently employed by Respondent and was so employed when he signed a card on March 4, 1971. A fellow employee had given him the card and told him "if I signed the card and if we get enough cards, we would be able to get an election there in the plant for the union." Poore asked that employee if "that counted anything, if I could hold my principles .... and he said it wouldn't bother any of my principles and wouldn't obligate me." The em- ployee also told Poore that he "would have to sign that card if I [Poore] was going to attend the meeting to get a union." Poore testified that before signing he read only as much of the card to know that he was signing a union card. In the Examiner's opinion, Poore's card is valid. He was told that, by signing the card, "we," the employees, would be helped to get an election "for the union." He was not told that the card would only serve to have an election to determine whether or not the employer wanted a union but that the card would help to get an election for the Union, i.e., an election in which the employees could vote for the Union4° Poore was also told that in order to attend "the meeting to get a union" it was necessary to sign a card. In our opinion, if Poore or his "principles" were opposed to having an election "for the union" or if he was not interested in attending "the meeting to get a union," i.e., a meeting whose purpose was to aid in getting a union in the plant, he would not have signed the card. Further, it was not a misre- presentation to say that signing the card did not obligate Poore or prevent him from adhering to his principles. Robert L. Webber: is presently employed by Respon- dent and was so employed on February 24, 1971, when he signed a card. The fellow employee who gave him the card told him that the purpose of signing the card "was so the union could get a majority of the people " and "we could have an election." The employee also told him that "nobody [particularly the employer] would see the union cards or anything like that and we would not get in any trouble for it with our employer ... we wouldn't have to worry about getting fired ...." and that only the union representatives would see the cards.41 At a union meeting, Poore states that Brown or Newell said substantially the same thing as the fellow employee had said to Poore , supra. In the Examiner's opinion the card is valid . The signing of the union card and the attainment of a majority and the resulting election were depicted , and understood to be prounion acts and as such were given an assurance of rela- tive secrecy to the extent that the Employer would not see the card and consequently the signers would not be fired for such prounion activity. The signing of the card was not represented to be a neutral act of no significance or of no interest to an employer presumably assumed to be hostile to a prounion act. Alfredo Raven; Billy J. Wilkerson; Mike Barnwell: These employees were employed by Respondent on the dates that appear on cards bearing the above signatory names. The dates are February 23, March 3 , and March 4, 1971, respectively. Newell identified the foregoing cards and testified that Raven and Wilkerson signed their cards in his presence at union meetings on February 23, 1971, and March 3 , 1971, respectively. Newell states that he went to the home of Barnwell's mother on March 4, 1971, and Barn- well signed his card at that time . According to Newell, he had told substantially the same thing to all these employees when he gave them cards to sign . He told them that the Union represented the employees at the two other plants and had gained recognition at one of those plants without an election ; that the Union had reason to believe that it could gain recognition at the Anniston plant if the majority of the employees wanted union representation. Neither Wilkerson nor Barnwell were called as witness- es. The Examiner credits Newell's testimony regarding the cards of these two men and finds their cards to be valid. Raven, a former employee called as a witness by Re- spondent, authenticated his card, General Counsel Exhibit 24.42 He states that employee Turner had given him the card at the plant, telling him that "he needed half the people to sign up so we could have an election ." Raven testified that he then took the card to the restroom and was there by himself and read the card. Raven there signed and filled out 39 For instance, the two's (2's) in the address are visibly different from the 41 In our opinion, the bracketed insert is warranted when the entire context two's (2's) in the date of the conversation is considered 40 It cannot be said, in our view, that the import was that the employees 42 The Company secured a statement from Raven regarding the card cir- were going to secure an election merely as a favor to the union or its repre- cumstances around June, 1971, while Raven was still an employee . He left sentatives The union representatives were strangers to the employees the Company in August, 1971. WALLACE METAL PRODUCTS, INC. 831 the card about 20 minutes after he had received it from Turner. The witness was somewhat vague as to what he did with the card after he signed it and filled it out, saying "I can't remember. I think I turned it in to Benny Turner." The Examiner credits Raven that Turner gave him the card in the plant and that Raven signed it and filled it out in the plant as he testified. This was during the day of February 23, 1971, the date entered by Raven on the card. We believe that it is not unlikely that Raven turned in the card that night, which was the night of the first union meet- ing, and that he may have given it to Newell at that time. Raven testified, indeed, that he had attended about 4 union meetings but had signed his card prior to such attend- ance.43 In any event, whether Raven turned in his card to Turner at the plant on February 23 or whether he turned it in at the union meeting that night is not of major importance. In addition to reading the unambiguous card in private and filling it out, and attending a substantial number of union meetings at which the theme of union recognition by the Company was definitely discusses, Raven admitted that he secured a number of blank union cards and had them in his possession. Raven never sought to revoke his card. As in the matter of whether he had turned in his card to Turner or as to what transpired at any union meeting he attended, Rav- en, when asked whether he had gotten other employees to sign cards, stated, "I can't remember." The Examiner finds Raven's card to be valid as a designation of the Union as collective-bargaining representative as is plainly stated on the card. Virgil Allen Bright; James Isbell; Bobby Lee Ponder; Larry D. Hicks; Bobby L. Vitch; Winston Moates; Robert L. Elder: Union representative Brown identified cards bearing the foregoing signatory names. The cards are General Counsel Exhibits 29, 30, 31, 32, 33, 34, and 41, respectively. With the exception of the card bearing Moates; name (G.C. Exh. 34), which we will discuss separately, the dates on the other cards are, respectively, March 2; February 24; March 15; February 25; February 23; February 23; all 1971. All the employees above were employees on the dates appear- ing on their card and their names also appear on the payroll as of March 26, 197144 Bright: a former employee, was not in Respondent's employ at the time of the hearing. Brown testified that he visited Bright at his home; they talked about the Union in general and about union contracts; they also talked about the fact that the Union represented the employees at the Company's other two plants. Bright then signed the card, filled it out, including the date of March 2, 1971. Bright was not called as a witness. We find the Bright card to be valid. Isbell: according to Brown, signed his card in Brown's presence and had placed the date, February 24, 1971, thereon. Prior to this they had talked as described above in the case of Bright. Isbell told Brown that he had in the past been a member of several unions. Isbell was not called as a witness. We find the card to be valid. Ponder: according to Brown, signed his card at a union meeting on March 15 and inserted that date thereon. He had told Brown at the meeting that he wanted to join the 43 The record does not show precisely how many union meetings were held but only about four are described as to what occurred thereat. 44 As indicated, Moates will be a subject of separate discussion Union; he was given a card, read it, and signed it. The parties stipulated at the hearing that Ponder "was first em- ployed" by Respondent on March 16, 1971. On this narrow stipulation, we find that Ponder was not an employee of Respondent on March 15. However, the fact that Ponder, on March 15, attended a meeting called by the Union for the employees of Respondent and said that he wanted the Union to represent him and signed a card, indicates, rea- sonably and logically, that Ponder knew that he would com- mence his employement with Respondent on the following day, March 16 45 In any event, Ponder designated the Union as his collective-bargaining agent and neither on the follow- ing morning nor at any time thereafter when he was an employee, did he repudiate or revoke his designation of the Union. We find that the card is valid and effective with respect to the issues of this case on and after March 16, 1971. Hicks: Brown testified that he visited Hicks at his home and they talked along the lines described above in the case of Bright. Brown also states that he told Hicks that the Union had reason to believe that the Company would rec- ognize the Union if the latter secured a majority. Hicks then signed and filled out a card dated February 25, 1971. Hicks, a former employee, was called as a witness by Respondent. He acknowledged having signed the card and filling it out and dating it. He states that employee Stewart gave him the card at the plant and Hicks filled it out there and gave it back to Stewart the same day. Hicks denies that Brown came to his home and talked to him. Stewart spoke to Hicks before he signed the card. According to the latter, Stewart "asked me if I would be interested in having a union represent me" and Hicks said he would like to find out "what it was about." Stewart advised him to sign the card and "it would be used to try to get an election, to find out if it would be worthwhile." Stewart also said that Hicks would not obligate himself by signnng.46 Although Hicks states that he did not read the card before signing and did not attend any union meetings before signing, he testified that, after signing, he believes that he attended every union meeting that was held. The Examiner credits the foregoing testimony of Hicks. As we view his testimony, Stewart's opening and basic theme in approaching him to sign a card was whether Hicks "would be interested in having a union represent [him]." Hicks did not say, no, but asked for further explication. Stewart then explained that he conceived to be the mechan- ics of the matter and that, in effect, with signed cards an attempt would be made to get an election and thereby serve the originally stated purpose of "having a union represent me [Hicks and others who signed cards]." Hicks thereafter attended all the union meetings. These meetings had as their basic theme Company recognition of the Union either with an election or without an election or otherwise. Hicks never sought to revoke his card but continued to attend the meet- ings. We find this card to be valid. Vitch: Brown testified that he went to Vitch's home and as Brown testified that Ponder told him at the time that he had not been with the Company "too long " We believe it more likely that Ponder said that he was not due to commence working for the Company until the following day We have earlier set forth our view that the no obligation statement is not a misrepresentation 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employee signed the card on February 23, 1971. Brown states that some woman, who was at home with Vitch at the time and who Brown opined as his wife or sister, filled in the address, date, and name of the Comany after Vitch had signed. Vitch was no longer employed by Respondent at the time of hearing and was not called as a witness. We find the card to be valid. Elder: last appears on Respondent's payroll ending March 24, 1971. He is not on the payroll on March 26, 1971. Brown identified Elders' card as signed by the latter in Brown's presence on February 23, 1971. This took place at employee People's home and both People and Elder signed cards on this occasion. People's signing has been earlier described. Elder was not called as a witness . We find Elder's card to be valid but not after March 24, 1971. In our opin- ion, there is no presumption that an employee, who last appears on the payroll on March 24, was an employee there- after, absent other evidence. Moates: Brown testified that, in his presence, Moates signed a card, General Counsel Exhibit 34, at the first or second union meeting. Although Brown said that he be- lieved that the signing occurred at the first meeting, he said that he was not sure. The first meeting was on February 23 and the second on March 3, 1971. Moates was not called as a witness. The card identified by Brown, in our opinion, has been filled in and signed, including the date, by one person. The handwriting is entirely the same. The date that has been placed on the card makes clear that the day of the month is "25" and that the year is "71." The month is not clear since the lower portion of the number is partially smudged, erased, or incomplete. In the Examiner's opinion the num- ber aforementioned is an "8" but admittedly it is not 100 percent clear. In its brief, Respondent states that is difficult to tell whether the number is 2, 3, or 8. We agree that it is not easy but we see no resemblence to a 2 or a 3. The person who filled in the card, in our opinion, wrote with reasonable facility and neither words nor numbers on the card indicate that the writer wrote with difficulty or that he wrote letters or numbers in a highly unusual manner.47 The General Counsel in its brief states that the month is partially illegible and that the month cannot be ascertained from the face thereof. He therefore concludes that Brown's testimony that the card was signed at the first or second union meeting "establishes the month of signing as February." Brown's testimony is that the first meeting was about February 23 and that the second was on March 3 or 4. While the number designating the month on the card is not clear, there is no doubt that the day of the month is "25." The testimony of Brown is, in effect, that the card was signed at the meeting February 23 or March 3 or 4 and this conflicts with the clear "25" on the card. At the hearing, when exam- ining the month portion of the date on the card, Brown said that it looks like an "8." He said that would have been "impossible," because he left Anniston the first week in August and secured no cards in that month. As indicated, it is the Examiner's opinion that the card bears the date "8/25/71" although the "8" is not entirely 47 Compare G C Exh. 33 whereon the signer of the card quite apparently wrote his name with difficulty and the balance of the card was filled out by his wife or sister. clear. Brown's testimony conflicts with the "8" and the "25" and would, in effect, reform the date to 2/23/71 or 3/3/71. On all the evidence, it is our opinion that the date when this card was signed cannot be determined with reasonable cer- tainty. We believe the burden of proof rested with the Gen- eral Counsel. We do not count this card as valid in view of our opinion that either the date cannot be determined on the evidence, or the date is "8/25/71" which, would render it irrevelant to the issues of this case.48 To summarize our findings regarding the cards intro- duced by the General Counsel at this hearing, we find 20 valid cards as of March 26, 197149 There were 40 employees on the unit payroll as of that date. The Union therefore is not shown to have a majority of valid cards on March 26, 1971. Respondent refused to recognize and to bargain with the Union thereafter. Conclusions In appraising the evidence in this case, we have on the main points of conflict, credited the testimony of Pudliner and Newell regarding an agreement by MacKenzie to rec- ognize the Union at Anniston. Whether MacKenzie had a low and hostile opinion of the Union, as he testified at the hearing, or not, he was greatly concerned with the Rich- mond situation in early 1971. When Temprine, the union business agent at the Hazleton plant, called MacKenzie, he spoke to him about Richmond and Anniston. Temprine had no apparent relationship with contract negotiations at Rich- mond and certainly no direct relationship with those nego- tiations. Nor did Temprine have a relationship of any apparent kind with organizing in Anniston, Alabama. Yet, at Tempnne's suggestion, MacKenzie called Newell, the union organizer at Anniston although the only thing that MacKenzie knew about Newell was that he was a union organizer in Anniston and referred to by Temprine. From then on, in our opinion, the relationship between MacKen- zie and the Union, principally Pudliner, was permeated with the Richmond-Anniston tie-in arrangement. This eventual- ly culminated in the March 26 card check. We are unable to credit MacKenzie that he was told or that he believed that the card check was a no-obligation affair and a face saver for the Union. Since MacKenzie testified about his basic hostile opinion of the Union, it is difficult to see why he would be interested in participating in a card check 48 Moates' name appears on lists of employees on payrolls ending March 3, March 10, March 17, March 24; but not on the payroll of March 26, 1971. In a posthearing motion of June 5, 1972, Respondent moves to Reopen and Correct the Record We have earlier in this Decision ruled on the motion insofar as it pertains to employee Gilbert The Motion as to Moates incorpo- rates an affidavit of plant manager Smith stating only that Moates "terminat- ed his employment on March 18, 1971. A copy of his separation form is attached hereto." The copy of the form shows the last day worked by Moates to be "3/ 18/71." In our opinion, the Motion sets forth no, or insufficient, reason to grant the Motion During the hearing the payroll lists referred to in the first portion of this footnote, were prepared by Respondent's counsel and manager Smith According to Respondent's counsel on the record, they went to Company records, books, and timecards and prepared the payroll lists of names The lists, pursuant to stipulation in which the General Counsel joined were admitted as Respondent Exhibits We deny the Motion We also find that as far as the evidence shows, Moates was not an employee after March 24 and not an employee on the critical date of March 26. 49 Ronnie Goodson; Payne; People; H. Smith; L Poore; Creswell; Mo- rales, Randy Goodson, K. Smith; Vise; D Poore; Webber; Raven; Wilker- son, Barnwell , Bright, Isbell, Ponder, Hicks, Vitch. WALLACE METAL PRODUCTS, INC. simply to save face for the Union. We also do not under- stand how an allegedly meaningless card check saved face for the participating union. A card check followed by recog- nition has some meaning, but a no obligation card check has no meaning.50 We do not believe that either party believed that the card check by a third party, and with both parties participating, was simply a meaningless exercise. In our opinion, there was an agreement between the parties that the Company would recognize the Union if the Union demonstrated its majority in the card check. As far as the neutral third party, Reverend Belmont, and the plant manager and the union representative were concerned, the card check showed that the Union did have a majority of signed authorization cards. The recognition aspect was aborted and was repudiat- ed when Mr. Wallace received a newspaper story about the completed card check. The evidence fully warrants this con- clusion, including the fact that Mr. Wallace had not known of the arrangements and agreement between Pudliner and MacKenzie that preceded and then culminated in the card check 51 While the parties who participated in the card check were apparently unaware of any procedural flaw therein and raised no objections, and while the Company thereafter did not refuse recognition on the basis of a deficiency in the card check itself, the evidence in this case does reveal a deficiency. Apparently the deficiency was not due to any duplicity by the card check participants. However, the names on the cards were checked against a list furnished by the Union. Newell said there were 33 cards and 33 names on the list he gave Belmont. Belmont said there were about 40 names on the list (39 can be about 40) and 39 cards. Belmont checked the names on the cards against the names on the list and then compared the card signatures with signatures in the ledger book. The latter was the only thing that Smith had brought for the card check although Brown had told him to bring a typed list of names on the current payroll. The ledger book contained about 100 names and signatures of current and -former employees. Belmont checked only signatures in the ledger book and did not, and had not been told to, check whether a particular name or signature was that of an employee currently employed. Bel- 50 If an employer has questioned a Union's majority status, an alleged no-obligation card check might serve some purpose , at least from the Union's standpoint and possibly from the Employer's But, here, MacKenzie had never questioned the Union's majority and, in fact, had never even asked about it 51 Before MacKenzie came with the Company, Mr Wallace, according to MacKenzie, had fought the Union at Richmond and "beaten them three times before they finally got in [in -1962]." Around the middle of April, 1971, after the card check and after MacKenzie had written to Pudliner that Mr Wallace had decided that if the Union was in the Anniston plant the Compa- ny would no longer be in Anniston, MacKenzie told Pudliner that only recently (in 1971) had Mr Wallace learned that his company had recognized the Union at Hazleton without an election (in 1965) and he was very upset to learn that. MacKenzie testified that Mr Wallace had had a heart attack around that time in 1965 and was not very active. In April 1971, after Mr. Wallace had received from some source the newspaper story about the Anni- ston card check, he immediately called MacKenzie and was going to stop off in Anniston on his way back from Florida to personally look into the situ- ation. Mr Wallace's absence from day to day matters in the Company and his apparent emeritus but controlling status is also indicated by manager Smith's testimony that Mr. Wallace has a home in Florida "and he would be on his way back through there possibly in April ... and the same thing is true in the fall going back [to Florida]." 833 mont found that 33 cards had names on the list furnished by the Union and that the signatures thereon checked with signatures of those names in the ledger. If we assume that there was a valid card check or at least one that the parties accepted as valid and to which they did not object, plus the agreement to recognize on the basis of the card check,52 and if we also assume a union majority of valid cards, we can confront the principal legal issue of the case. In Gise1153 the Court did not pass on the situation of an agreement for a card check, including recognition if the Union,s majority was demonstrated in the card check. The Court did, however, express its views regarding the election process as compared to cards as methods of discerning em- ployee choice. Cards were deemed acceptable by the Court, in our opinion, with respect to the issues before it, only where unfair labor practices by the employer seriously im- peded or made impossible the holding of a fair election. Thus, The acknowledged superiority of the election process, however, does not mean that cards are thereby ren- dered totally invalid, for where an employer engages in conduct disruptive of the election process, cards may be the most effective-perhaps the only-way of assur- ing employee choice. s s s .... the cards, though admittedly inferior to the elec- tion process, can adequately reflect employee senti- ment when that process has been impeded. Obviously, if the Court had declared, as did some of the lower courts, that cards were a basically unreliable method of determining employee choice, it would have been diffi- cult, if not impossible, to justify the use of cards in any situation. However, since there were situations where an employer's unfair labor practices made the holding of a fair election impossible, the Court preserved the use of cards for such situations. But the comparison of cards with the elec- tion process and the use of such terms as superiority and inferiority in comparing the two was not, in our opinion, simply an indication that an election was a preferred route in the sense that it was six of one and half dozen of the other or in the sense that a Cadillac might be preferred to a Chevrolet although both cars were reliable methods of transportation. The relative superiority of the election is akin to the superiority of a modem automobile to an oxcart. If an important trip had to be made on land between Miami and Chicago, the modern car would be so superior that it is clear the the oxcart would only be used if there was no other method of transportation available. By analogy, the election is so superior to a card check in determining em- ployee choice that the card check should only be used where the employer's unfair labor practices have severely limited or have made impossible the holding of a fair election. The superiority of the election and the inferiority of cards was such that the court undertook to describe only one situation to rebut the contention of the unreliability of cards. That 52 The agreement to recognize on the basis of the card check is a fact as found above and is not an assumption 53 N.LR B v. GueIl Packing Company, 395 U.S. 575 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD situation was one where , as described above, a fair election was seriously impeded by the employer and thus the cards could be considered effective since they were "perhaps the only way of assuring employee choice." Gisell is also a case in which both the Court and the Board had laid to rest the Board's "good faith doubt" doc- trine. The Snow case 54 is clearly a good faith doubt case. In that case the Board stated: Where as here, the Employer entertains no reasonable doubt either with respect to the appropriateness of the proposed unit or the Union's representative status, and seeks a Board-directed election without valid grounds therefor, he has failed to fulfill the bargaining require- ments under the Act. And the Court: Once he [the employer] has received such information from a reliable source [of the Union's majority status], insistence upon a Board election can no longer be de- fended on the ground of a genuine doubt as to majority representation. The instant case involves an agreement for a card check and recognition thereafter . Respondent reneged on the recognition aspect after the card check was completed. The breach of an agreement is not an acting in good faith and there was also no good faith doubt as to the Union's majority. However deserving of censure a breach of an agreement between parties may be, the Examiner believes that the Board's primary concern in cases of this type should not be, in effect, the enforcing of the recognition aspect of the private agreement. The primary concern should be that the employees' desires as to union representation be ascer- tained by the best and fairest means available in a demo- cratic society and until that takes place the matter of an employer's good faith or his breach of an agreement has little relevance. The superiority of the election process to cards, in our opinion, is clear and the superiority should be acknowledged except when unfair labor practices by the employer seriously impede the holding of an election.ss If an employer has not committed unfair labor prac- tices and he refuses to recognize a union that has obtained valid signed cards from a majority of the employees, the employer, as we understand it, will not be found guilty of a Section 8(a)(5) violation . This stance rests upon the recog- nition by the Court in Gisell of the superiority of the election 14 Snow & Sons, 134 NLRB 709, 308 F.2d 687 (CA. 9) 53 There were no such unfair labor practices herein. process for determining employee choice, except in those instances where the employer's conduct has impeded the holding of a fair election . We fail to see how an employer's agreement to participate in a card check and to recognize the Union if the latter is shown to have a majority of the cards can change the fact that cards are deemed to be an inferior method and hence a less reliable method of de- termining employee choice. It is the Board's responsibility, when the matter is before it, not the employer's, to satisfy itself that employees have chosen or rejected a union and that the choice or rejection represents the genuine desires of the employees. There should be no room for second best or inferior methods in this area of determining employee choice. If an Employer Association , in which the particular employer was not involved, had sent agents into the town where the employer's plant was located and secured signed cards from employees stating that they did not want union representation, a card check agreement and agreement to abide by the outcome of the card check , in which the Asso- ciation, the employer, and a neutral third party participated, would certainly not be viewed as a reliable method for determining employee choice or as an alternative method to the election process . Nor will such a position as we have submitted mean an end to "voluntarism " in dealings be- tween employers and unions . If, at the time, the parties have the disposition to enter into a card check agreement, this disposition should be the same with respect to entering into an agreement for a consent election , unless either the Union or the Company, or both, have some motives in mind other than the desire to afford the employees their choice of a union or not in a secret ballot election. If the parties have no disposition to enter into a consent agreement , an election and certification are available through a petition and Board election. Whether the election is pursuant to a consent agreement or whether it is directed by the Board , any em- ployee who desires union representation, whether he has signed a card or not, can vote for or against the Union. It is fairly clear that employees who desire union representa- tion will not be frustrated by being obliged to, or by being afforded the opportuntiy to, cast a ballot. The Examiner has found that the burden of proving the Union's majority status has not been sustained in this case. We have also expressed our opinion that even if the Union had a majority of signed cards and notwithstanding the agreement between the parties, a finding of a Section 8(a)(5) violation should not be made and a bargaining order should not issue. Dismissal of the complaint is recommended.