Tri-City Meats, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tri-City Meats, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local No. 368. Case 19-CA-8821 August 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On February 28, 1977, Administrative Law Judge Henry S. Sahm issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,1 and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, except as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent Tri-City Meats, Inc., Eagle, Idaho, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Add the following as paragraph l(b): "(b) In any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent 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 are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. z The Administrative Law Judge incorrectly finds that Teddy Starr filed "both a representation petition and RM petition." The record reveals that Starr did however file an RD petition. We agree with the Administrative Law Judge's conclusion that Respon- dent has refused to bargain in violation of Sec. 8(aX5) and (1) of the Act. In so doing, however, we rely on Respondent's failure to meet the burden of introducing affirmative evidence proving the Union's lack of majority at the time of recognition. See, e.g., E. L Rice and Company of Southgate, Inc., 213 NLRB 746 (1974); Mosi & Son Trucking, Inc., 197 NLRB 198 (1972). 231 NLRB No. 118 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through representa- tives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refuse to do any or all these things. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 368, as the exclusive representative of our employees en- gaged in the handling and processing of meat and meat products at our Eagle, Idaho, plant, exclud- ing all other employees, office clerical employees, guards and supervisors as defined in the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain with the above-named labor organization as the exclusive representative of all the employees in the above- described unit with respect to rates of pay, wages, hours, and other terms and if an understanding is reached, embody such understanding in a signed agreement. TRI.CITY MEATS, INC. DECISION STATEMENT OF THE CASE HENRY S. SAHM, Administrative Law Judge: This proceeding was heard at Boise, Idaho, on January 10, 1977, 768 TRI-CITY MEATS based on a charge filed by the Union and a complaint issued on August 31, 1976.1 The complaint alleges that Respondent Tri-City Meats, Inc., called the Company, violated Section 8(a)(5) by its refusal of the Union's request to recognize it and to bargain. The Respondent Company's answer admits that its vice president, Walt Drewry, signed a letter purporting to be a recognition by him of the said Union. However, Respondent's answer denies that Drewry fully knew and understood the contents and meaning of this letter at the time it was presented and signed by him. Only Respondent filed a brief on February 7, 1977. Upon the entire record in this proceeding, including my observation of the witnesses and consideration of the briefs, there are hereby made the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent Tri-City Meats, Inc., is an Idaho corpora- tion located at Eagle, Idaho, where it is engaged in processing and selling meat products. During the past year it has purchased and received meats, meat products, and other goods and materials valued in excess of $50,000 which were transported to its plants in Eagle, Idaho, from States outside of Idaho. Respondent admits the foregoing allegations. Accordingly, it is found that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Charging Party, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 368, is a labor organization within the meaning of Section 2(5) of the Act. The Sequence of Events Sam Nettinga, secretary-treasurer of the Charging Party Union, received telephone calls from two or three employ- ees of the Respondent Company between May 10 and 12 inquiring as to the procedure necessary to have the Union become their collective-bargaining representative. A meet- ing was arranged for the evening of May 17, at the Union's local offices. Of Respondent's 19 employees, 14 attended. At the meeting, Nettinga addressed the employees regard- ing the Union's virtues, and the advantages which would accrue to them should they select the Union as their collective-bargaining representative. Union authorization cards were distributed and each of the 14 employees in attendance signed one. Upon witnessing the signatures, Nettinga announced that he would file a representation petition with the NLRB, which he subsequently did. On May 18 the Union mailed a letter to Jerry Hetrick, president of Respondent Company. The letter informed Hetrick that a majority of the Company's employees had designated the Union as their representative for purposes of collective bargaining, and requested that the Company recognize the Union as the representative of its employees in the appropriate unit. In addition, the letter asserted that the Union had information indicating that the Company had no good-faith doubt as to the Union's majority status. To obviate any questions of majority status, the Union offered to show the Company the employees' signed authorization cards in the presence of an impartial third party for the purpose of checking the authenticity and validity of said authorization cards against company personnel and payroll records. On May 21, Walter Drewry, vice president and "half owner" of Respondent, signed "for the Company," the following writing (hereafter referred to as the "To Whom It May Concern" letter): TO WHOM IT MAY CONCERN Tri-City Meats, Inc. of Eagle, Idaho agrees to recognize Local 368 of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and bargain with them concerning wages, hours and working conditions for the employees engaged in the handling and processing of meat and meat products at the employer's plant located in Eagle, Idaho. On May 25, the Idaho Employers Council, by its Executive Secretary Thomas H. Hazzard, mailed a letter to the Regional Director stating that the Council represents the Respondent Tri-City Meats, Inc. Attached to this letter was a "notice of appearance," interstate commerce data, and a list naming the Company's employees and the duties performed by them. By letter dated June 2, Respondent filed an RM petition on June 4, with the Regional Director for Region 19. The accompanying letter stated that the Company had a good- faith doubt that the Union represented a majority of its employees and requested a secret ballot election. Also on June 4, Walter Drewry, Respondent's vice president, "revoked" his "To Whom It May Concern" letter. The Idaho Employers Council, by letter dated June II, notified the Union as follows: This is to advise that we represent Tri-City Meats, Inc., Eagle, Idaho in labor relations matters. Your letter of June 4, 1976 addressed to Mr. Walt Drewry has been referred to us. The employer, Tri-City Meats, Inc., has a good faith doubt that your Union does in fact represent a majority of its employees in their establishment at Eagle, Idaho. It is our firm opinion that the best way to resolve this question of representation is by a secret ballot election conducted by the National Labor Relations Board as provided in Section 9 of the National Labor Relations Act. To this end we have filed an RM petition, Case No. 19- RM-1323, requesting that an election be conducted by Region 19 of the Board. This is in accordance with the rights provided to employees in Section 7 of the National Labor Relations Act. I All dates are 1976 unless otherwise specified. 769 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We anticipate your cooperation in the conduct of this election so that it may proceed promptly and without interference. Tri-City Meats, Inc., and we as their representative, will be guided by the outcome of this election in regard to negotiations with your Union. On June 17, Walter L. Drewry, vice president of the Company, wrote the following letter to the Union: Dear Mr. Nettinga: Late in the afternoon of Friday, May 21, 1976, you and two of your associates called on me at a time when I was quite busy with several customers. You presented me with a typewritten document explaining, as I recall, that this was but an acknowledgement that you are calling on me as a representative and in behalf of your Union. Relying upon this explanation I signed this without reading it and continued with my customers. As the document is actually much different than my understanding of same at the time you presented it to me, I hereby revoke my signature on the document which I signed at your request on May 21, 1976, and request that you return the original copy which I signed to me at once. The position of my Company, Tri-City Meats, Inc., is as expressed in the letter of June 11, 1976, from our representative, Thomas H. Hazzard, to Mr. Elvin Hightower of your Union. I am surprised at your attempt to demand recognition without a secret ballot election. This denies our employees the rights provided to them in Section 7 of the National Labor Relations Act. On June 18, the Regional Director notified the Respon- dent that he was dismissing its RM petition because the Company had recognized the Union. The Company appealed to the Board on June 28. The Board affirmed the Regional Director's ruling on August 4. The Union telephoned Respondent on August 9, request- ing that bargaining negotiations commence. The same day the Respondent notified the Union in writing that "the agreement to recognize signed by Walter Drewry, as the result of a misunderstanding on May 21, 1976, was rescinded on June 17, 1976 and is no longer a valid basis for demanding recognition." Respondent again requested that an election be held. On August 13, the Union filed a charge against Respondent alleging that, on August 9, the Employer "withdrew recognition" which had been previ- ously granted on May 21. On August 27, the Regional Director acknowledged receipt of an appearance notice in this proceeding from Elbert Shaw, "compliance consultant," and wrote to Mr. Shaw as follows: [I]t is my understanding that the Employer withdrew from the recognition agreement it executed on the basis that it was mislead into signing the agreement by the union representatives involved who asserted that the document proffered for execution was merely an acknowledgment that they had been at the plant on the day in question. It is my further understanding that the Employer now refuses to commence collective bargain- ing with the Union and takes the position that it will not bargain until the Union is certified. On August 31, a complaint issued alleging a refusal to bargain in violation of Section 8(aX5) of the Act. In a letter dated September 9, Teddy Starr, and I I other employees who had signed union cards on May 17, wrote to the Regional Director that they no longer wanted to be represented by the Union. Approximately a month later, on October 8, Starr filed a decertification petition (RD) asserting that a substantial number of the Company's employees no longer desired to be represented by the Union. The RD petition was dismissed by the Regional Director as being untimely filed in view of the fact that a complaint had issued on August 31. Starr appealed to the Board, alleging, inter alia, in a typewritten letter that the Union had "misrepresent[ed] it's self in trying to sign up the employees of [Respondent]." This letter continues as follows: The fact is that the employee's were not told everything we needed to know about the Union, it's policy and it's power to protect it's members. We were handed cards to fill out and told this was just a way of the Union knowing who was present at the first meeting we had with the Union and it's Representative, Sam Nettinga, in May or June, 1976. We were told that the signing of these cards would in no way obligate us to join the Union, and that this would protect us from being harassed by our Employer, Tri-City Meats, Inc., for a period of six weeks. Now I understand we have no choice in the matter. At a meeting called the day before the 4th of July holiday we were asked to strike Tri-City Meats, Inc., to show them we could disrupt the operation of the plant if they did not negotiate a contract with the Union on our behalf. I have never been told about or shown or helped to work out an agreement to present to Tri-City Meats, Inc., on our behalf. So why strike for nothing? At the strike meeting we were not told that if we strike we could be fired for it and replaced by other people. I must say here that we, the Employee's, did not ask about this, reason being we were made to believe, by misleading statements from the Union officials, that this could not happen. Three weeks after the strike attempt, a meeting was called in Tri-City Meats parking area, by Elvin Hightower, of the Union, and we were asked, at that time by Mr. Hightower, if we still wanted the union in. At this time Mr. Hightower was told no, that there wasn't enough support among the employee's and we didn't think it would help us. Mr. Hightower then told us that he was going to put a contract in Tri-City Meats, Inc., with or without the Employee's help. In my opinion this course of action, by Union Local 368, is not in my best interests or the interest of the 770 TRI-CITY MEATS employee's of Tri-City Meats, Inc., with the exception of two employee's. I hope this letter is enough to appeal the dismissing of my petition regarding this matter. I would like to state that the Employees are aware of this appeal and support by a 14 to 2 majority. Respondent Company maintains the position that while its vice president, Walter L. Drewry, did sign the "To Whom It May Concern" letter of May 21, he did not know or understand its contents. Respondent denies awareness that the letter could be used by the Union to obtain recognition. Respondent maintains that it had no intention of recognizing the Union as the collective-bargaining representative of its employees without prior certification by the Board following a secret ballot election. The Testimony 2 Nettinga, the union official, testified that on May 21, he and Business Agent Elvin Hightower and the Union's International Representative, Lester Peck, went to Respon- dent's plant and requested Drewry, vice president of the Company, to sign the "To Whom It May Concern" document but not before apprising and explaining to Drewry "what the document was," and their reason for requesting him to sign it. Nettinga continued that Drewry read it in his presence, at which point, according to Nettinga, he inquired of Drewry whether he wished "to look at the [union] cards which were signed by the 14 employees and he said there was no need.3 He knew we represented his people, that wasn't the question. We told him that he put the thing to bed. We would talk to him upon our return in 3 weeks from a convention our union was holding in San Francisco." Nettinga also testified that after Drewry signed the "To Whom It May Concern" writing, Drewry posted it on the plant bulletin board on May 24 and 25. On cross-examination, Nettinga testified that at the union organizational meeting on May 17, one of the employees present inquired whether the employees could be terminated for signing cards. Nettinga responded: "We said that the signature on that card did give them some protection with the Board because they have the right to organize and bargain collectively." When asked if he told the 14 employees at the May 17 organizational meeting that the purpose in obtaining their signatures on the union cards was to protect them for 6 weeks from their employer harassing them until an election could be held, Nettinga testified: "I think the only statement that could have been made in regard to six weeks is that was the approximate 2 Those witnesses who testified as to what occurred and what was said have been quoted herein, in haec verba. copiously because Respondent's representative based virtually his entire defense with respect to what was stated on May 21 when Drewry signed the "To Whom It May Concern" writing and what Nettinga and Hightower told the employees at the May 17 and July I meetings attended by the employees. The same consideration applies, also, with respect to the General Counsel's version as to what was said at these same meetings on said dates. In the interests of accuracy, all those witnesses' testimony has been quoted in ex.ienso to avoid the ambiguities and impreciseness created by paraphrasing. In fact, the flavor time it would take to get an election, provided there were no hang-ups by either side." Regarding his conversation with Drewry on May 21, when Drewry signed the writing in dispute here, Nettinga was asked if he informed Drewry that if he signed the document he was "granting recognition to the union," Nettinga answered: "It was our understanding, because of the phone conversation we had on [May] the 19th from Mr. Drewry that there was no question of our representa- tion of those people. .... We told him that this [To Whom It May Concern] letter would give us the bargaining power in [his] plant and we would be prepared to bargain with him upon our return from [the union convention]. Elvin Hightower, a union business agent, testified that on May 19, Drewry phoned him at the union office at which time they discussed the writing. Hightower stated that Drewry had assured him "that there would be no problem. He did recognize that we had the majority of the people and they did want us to represent them and that he had been a member of the Local [herein] before and would see no problem at that point in reaching a contract. The only thing he had in concern at that point was whether or not we had a contract to suit his needs because he indicated he was not a retail establishment or a packing house establishment . ... The only thing I told him at that point was we would submit our proposal, sit down and negotiate a contract that would be satisfactory to both sides." Hightower testified that on May 26, he met with the 14 employees who had signed union authorization cards in order "to draw up what we had as our demands to the company for a contract." After some discussion, a proposed contract was drafted which was mailed to Respondent on June 4. Hightower testified that on May 21, at Drewry's office, the "To Whom It May Concern" letter was explained to Drewry and that Drewry "indicated at that point that he did recognize that we represented the majority of the people and had no doubt on that point." Hightower added that Drewry did not ask to see the employees' signed union cards, stating, "We offered them to him and he indicated he didn't doubt us representing the majority" whereupon Drewry signed the document. Lester Peck, International representative from Seattle, Washington, testified as to what transpired at the May 21 meeting with Drewry. His account corroborated that of Nettinga and Hightower. Kirk J. Sanders, who was employed by Respondent from June 1975 until approximately October 1976, also corrobo- rated Nettinga's testimony as to what occurred at the May 17 union organizational meeting. He testified that the "To Whom It May Concern" letter was posted on the Company's bulletin board, along with a notice of a union meeting which was to be held on May 26. Sanders, on and nuances of the witnesses who testified with respect to the salient incidents was sometimes colorful, and, not only subject to different impressions and interpretations which are frequently incapable of literal translation or interlineal rewording so that even a metaphrase might he considered imprecise and too loose. 3 The authorization cards read in pertinent part: "I hereby authorize [the Union I to represent me and bargain collectively with my employer in my behalf and to negotiate all agreements concerning wages, hours and all other conditions of employment." 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cross-examination, stated that at the Union's May 17 organizational meeting, the union officials "explained to us what would have to be gone through if he we did strike ... and they explained to us that the signature on the cards would mean that we would have representation by the union." When asked whether he could recall "any mention of a six week period as a reason for signing the cards" he answered: "I believe it was discussed that the six week period, we would have . . . protection of some type from the Board that would help in our negotiations with the employer." He denied that the "protection" matter was the primary reason for requesting them to sign the cards, but rather the "primary consideration" was that the Union would represent them in negotiating a contract. Each employee called as a witness for the Respondent was asked on direct examination what the union officials told them as to the consequence of their signing a union authorization card. Each testified, in substance, that the purpose of the cards was to enable the Union to obtain recognition and to protect the employees from reprisals by the Employer for approximately 6 weeks until a Board election would be held to determine whether or not they wanted to be represented by the Union. Teddy Starr, an employee, wrote a letter to the Board on September 9, and also filed a decertification petition on October 8. When asked by Respondent's representative what he intended to accomplish by signing a union card on May 17, he answered: "Authorizing the union to go into preliminary negotiations on our behalf with our employers and mostly to protect myself from being fired or harassed on the job." When asked on direct what his purpose was in writing a letter to the Board and also filing a decertification petition, Starr's testimony reads as follows: To protest the way in which the union was trying to organize Tri-City Meats. .... I thought they misrepre- sented us. I thought they in effect told us one thing and that wasn't the way it was. They led us to believe something else. .... Well, we were told that by signing the cards, basically, the authorization cards, that we would be protected for six weeks from our employers from being harassed and I don't know what was to happen at the end of that time. We also discussed various aspects of belonging to the union, what protection we would have if we belonged to the union, at the original meeting of the 17th. Some of the questions that were asked were not fully answered or were answered in a roundabout fashion that led me to believe that my best interest was not at stake in joining the union at this time. We had no bargaining power. I really didn't feel we had the rights that were explained to us that we had with the union, that the union officials explained to us. .... [I hoped] [t]o either get the union stopped or get us an election to decide if we wanted one ourselves. I figured at the time it was passed, it was taken out of our hands. It was drifting down to us, the employees at Tri-City Meats, we really didn't have the control over [whether] the union was coming in or not. It was out of our hands. It wasn't up to us anymore. Starr concluded his direct examination by admitting that the union officials assured them that when contract proposals were submitted to the Respondent Employer that the Union would consult the employees first and be guided by their wishes. On cross-examination, Starr acknowledged that he had not read the union card before signing it. Randy Hetrick, another employee, testified that he "felt as an employee that he had been misrepresented by the union and the letter was to straighten it out . . . or to get away from the union because of the misrepresentation." Allen Gilbert, an employee, testified that the union officials at the May 17 organizational meeting explained the benefits that union membership would give them and when they signed the cards, it meant the Union would represent them in obtaining recognition and that as long as they were so represented the employees "couldn't be harassed by our employer ... [and] if the employer didn't recognize these cards within the six weeks then we would have a vote, I believe, to either go with the union and us to back up the union, or to forget it." Gilbert stated that at a July I meeting at the union hall, the union officials submitted a draft of a proposed contract to the employees for their consideration and stated that if there was anything in the draft that they did not approve of, they should voice their objections and that such matters would then be discussed by all present. Gilbert also testified, in answer to leading questions4 on direct examination by Respondent's representative, that a strike was considered and that when he was asked how he felt about it, he responded that he "couldn't afford [to] strike." When asked if he was familiar with employee Starr's letter of September 9,5 and what he hoped to accomplish by signing it, he testified that: "Well, come to find out getting a union in and everything would be one heck of a mess so I just decided the best thing to do was get out of it." Burt Morgan, also an employee who signed a union card, testified: "The way I understood it is if we signed the card to let our boss know that [the Union] represented the employees at Tri-City Meats and then after six weeks if he didn't recognize [the Union] then [the employees] would vote and let them [Respondent] know that the Union did have representation of us." Morgan was also present at the meeting on July I of the employees with the union officials at a restaurant and that Hightower, a union official- [W]ent down there and told us the best thing we could do would be to strike and there wasn't enough of us, there was two or three other people that were there, it wasn't even enough for us. .... We didn't even have a majority otherwise and the ones that were there at the meetings, that they couldn't afford it. There was no way they could make it on a strike so we decided, and then they told us there was only one other way and that was to send something into Washington. Don't take this exact but they were supposed to go some other way, but See Liberty Coach Company, Inc., 128 NLRB 160, 162, fn. 7 (1960). 772 5 Resp. Exh. 16. TRI-CITY MEATS we didn't have enough people to strike.... We recognized we didn't have enough people to strike so we just said wait, it would take us a certain length of time before they could do anything else. Alice Ramirez, a company witness, testified that she signed a union card at the May 17 organizational meeting. The following colloquy then ensued between her and Respondent's representative: Q. And was the principal reason for the signing of that card to be protection afforded for a six weeks period. A. Yes sir. 6 She was also asked: "And what is your impression of what the employees were attempting to do with [the letter of Starr, dated September 9, which he sent to the Regional Office]" to which Ramirez answered: "Well, I read it and then after I finished reading it, I just gave up on the union and I thought why fight more so I just went ahead and joined them." 7 Albert Ramirez, husband of Alice, the prior witness, testified he signed a union card at the May 17 meeting at the union hall. He was asked the following question by Respondent's representative: Q. Was the primary reason for signing that card the protection that would be afforded for a six week period if you did sign. A. Uh-huh. 8 The witness testified that at the July 1 meeting between the employees and union officials, the latter "wanted [us] to strike but we decided not to go because we don't have enough people to back us up." Ramirez continued that when he signed the September 9 letter, at the request of Starr, which was mailed to the Regional Director, that he was trying to block the plant "go[ing] union." Ruby Robinett testified in response to a leading question that "the primary reason" given her by the Union for signing a union card was that it would give her "a protection period of six weeks .... " She testified that, at the July I restaurant meeting, no vote was taken because so few employees attended. "I didn't figure there was much use of even pushing it any further." She subsequently signed the September 9 letter drafted by employee Starr. Richard Cloudt, an employee, was called as a witness by the Respondent Company, and was asked: "Was the primary reason for signing that card given as a protection period of six weeks?" He answered: "I did understand it would give us some legal protection against any harass- ment but I cannot remember of any six weeks period. The only six weeks period I remember is [the union official] said that if we were not recognized [by] the employers that in six weeks we could take a vote or something like that. It would take at least six weeks to do this." When asked by Respondent's representative if the union official explained to those present at the May 17 organizational meeting h See Liberty Coach Co., supra. 7 See quoted letter of Starr, supra. Liberir Coach. supra. "that the signing of the card might be used to prevent such an election," the witness replied in the negative. He concluded his testimony by stating that it was his understanding that Starr drafted the September 9 letter (which Cloudt signed) because "it seems as though everybody that wanted [a union] was pretty fed up with it so they just was trying to get out of it." When Walt Drewry, who stated he was "vice president and half owner" of Tri-City Meats, Inc., was called as a witness, his representative prefaced his direct examination by stating: "This witness is under a doctor's care for a nervous condition and he is under medication. He is entirely lucid but I have promised we would make his stay short and lacking in pressure." Drewry testified that two union officials, Nettinga and Hightower, came to his plant on May 21, "and they had this piece of paper for me to sign. They said it was nothing more than a formality ... They introduced themselves as being from the union and wanted me to recognize them. The way I took it, and I probably took it wrong, that I was recognizing the fact that our people had been to see them." Q. Did they explain to you that by so signing, your employees would not now have an opportunity to vote? A. They explained nothing to me. Drewry's testimony continues as follows: And they said something about this being a formality, we want you to know that your people have contacted us, I said I am aware of that. They said will you sign this piece of paper to this effect. I said, well, you are standing here why not. Q. So when you signed it, what did you think you were doing?9 A. I felt that all I was doing was recognizing the fact that I knew what was going on, that the people had been to see the Union. Q. That somebody was trying to organize your employees. A. Right. That's all. Q. Did you think you were recognizing the Union? A. I would never have signed if I would have recognized it. I know nothing about it. Later on, I told Mr. Nettinga that I knew nothing about the union. At that time I didn't tell him but at the next meeting I did. So you better let somebody else answer the questions. Drewry testified that he "immediately" wrote a letter to the Union which reads, in pertinent part, that "[he] signed this [document] without reading it." However, this letter was not sent to the Union until a month later. i Drewry acknowledged that he knew prior to May 21, when he signed the Union's "To Whom It May Concern" letter, that the Union had been soliciting his employees to authorize the Union to represent them. " This has reference to Resp. Exh. 3 which Drewry signed on May 21. i' See Resp. Exh. 9. 773 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Credibility, Discussion, and Conclusions After observing the witnesses, analyzing the record and inferences to be drawn therefrom, and reconciling where possible the conflicting evidence, I have made credibility findings, where necessary, with respect to the substantive testimony of the witnesses. Conclusions have been reached also which are based on observation of the witnesses with respect to the accuracy of their memories, their comprehen- sion, and their general demeanor on the stand in answering the questions put to them. I must choose between discordant versions of witnesses whom I have seen because the record does not reveal that part of the evidence which may have determined his choice. One court described it as "[findings] based on that part of the evidence which the printed words do not preserve. Often that is the most telling part on the issue of veracity."" "[C]redibility findings may rest entirely upon evidence through observa- tion which words do not, and could not, either preserve or describe." 12 By this discussion of the evaluation placed on the demeanor of a witness in testifying, it is not intended to convey the impression that consideration was given exclusively to this type of evidence in this proceeding in determining credibility. The assertion of Respondent's representative that Walt Drewry was suffering from a "nervous condition" at the time he testified and Drewry's testimony, supra, that he was completely unaware of what he was signing when the union officials came to his office on May 21, stating that the Union represented 14 of his employees, offering to show him the employees' signed authorization cards which he declined, stating he deemed it unnecessary, strains one's credulity in the context of them. Also, casting doubt on the veracity of Drewry's testimony in which he pleaded ignorance of what the document meant that he signed on May 21, is the fact that not only is he actively engaged in managing the day-to-day affairs of this Company but also he was put on notice before May 21 that the Union was then in the process of attempting to organize his employ- ees, and then his compounding this inexcusable negligence by refusing to accept the Union's proffer of the employees' 14 authorization cards. It also strains one's credulity to believe that Drewry, the one-half owner of the Company, a business of some size, having the executive responsibilities he had, would be so incredibly naive as to senselessly compromise his Company by alleging that he did not know what he was signing. On the contrary, it is believed this is a case of an ex post facto defense, lacking in veracity. Belying his testimony that he was totally unaware of what he was doing when he signed this writing, is the cogent fact that it consisted of only five typewritten lines stating in simple language that he agrees to recognize and bargain with the Union concerning his production employees' wages and working conditions.' 3 If Drewry has the capacity to operate this plant of 19 production employees and the sale of the products made there, it would appear, under the attendant circumstances here present, that he knew and understood the contents of this brief writing, consisting of one sentence. His testimony that he did not understand the i N.L.R.B. v. Lniverlal Camera Corp.. 190 F.2d 429, 430 (C.A. 2, 1951). 12 RoadH.a` Elxpress, Inc., 108 NLRB 874. 875 (1954). paper when he signed it is inconsistent with its simplicity, especially when one considers the responsible, if not complex, nature of his duties and responsibilities as a management official and half-owner of Respondent. Moreover, there was credible testimony by Nettinga, Peck, and Hightower, the union officials, to the effect that the aforementioned "recognition" writing was explained to Drewry and that Drewry virtually acknowledged the Union's majority status when he deemed it unnecessary to examine the employees' signed authorization cards. Insofar as Drewry's testimony conflicts with the Union's version, it is discredited. The same rationale is applicable as to the Respondent's defense of a good-faith doubt of the Union's majority status. On the contrary, it is found that Drewry had no good-faith doubt as evidenced by the uncontroverted testimony of Nettinga that the "To Whom It May Concern" letter, signed on May 21 by Drewry, was posted on the Company's bulletin board 3 or 4 days later, along with employee Sanders, stating a notice of a union meeting to be held on May 26 was also on the bulletin board. Moreover, the Union offered to show him the 14 employ- ees' authorization cards but he declined to examine them. Such a factual situation cannot be a valid basis for Drewry now complaining that he has a good-faith doubt that the Union represented a majority of the employees when it was brought about by the actions of Drewry himself, in refusing to examine the authorization cards. It will be recalled that many of the employees testified that when Nettinga spoke to them at the organizational meeting on May 17, and they signed the union authoriza- tion cards, that he told them, according to Starr (who was employed by Respondent only 2 months prior to Drewry signing the May 21 recognition paper), that if they signed the union cards they would be protected from harassment by Respondent and loss of their jobs because of their interest in the Union. However, when Richard Cloudt was called by the Respondent Company as a witness, he was asked on his direct examination the following leading question: "Was the primary reason for signing that card given as a protection period of six weeks that would ensue if you signed it?", he answered that he "understood it would give us some legal protection against any harass- ment but I cannot remember of any six weeks period. The only six weeks period I remember is [Nettinga] said that if we were not recognized [by] the employers that in six weeks we would take a vote or something like that. It would take at least six weeks to do this." We have here then three different versions of what Nettinga said to the 14 employees at the May 17 organizational meeting at the union hall. Which witness' version then is to be credited? Undeniably, witnesses are on occasion fouled by the air of partisanship, overzealousness, and other emotions to which the human flesh is subject. Witnesses do not emerge from antiseptic surroundings nor do they testify in a vacuum which protects them from the failings to which the human mind and spirit are subject. Moreover, unconscious and unintentional mistakes and honest confusion of a 13 See G.C. Exh. 5. 774 TRI-CITY MEATS technical subject such as the nuances inherent in whether a misrepresentation of fact or law was made by Nettinga when he was extolling the virtues of unionism at the May 17 organizational meeting in an effort to have the employees sign authorization cards cannot be disputed. Indeed, the delicate refinements and subtle distinctions as well as shades of differences which typifies this subject at times is trying even to those learned in labor law, so that confusion can understandably creep into the minds of unlearned auditors. Furthermore, honest misunderstandings can arise under such circumstances when it is considered that the employee witnesses testified from memory as to statements made by Nettinga 8 months before the hearing in this proceeding was held and their testimony given. Then too, it must be remembered that various witnesses may give different accounts of the same factual situation without being accused of not telling the truth, because differences may reasonably be expected when the subject has to do with semantic interpretations of what they understood a speaker to say, particularly when a witness is emotionally involved or, perhaps, will benefit by the outcome of the litigation. This, it is believed, was reflected in what appears to be a mistake on the part of some of the Respondent's witnesses in what they believed the union official was saying to them at the organizational meeting on May 17, due to their faulty understanding of the technical legal aspects of what he was explaining to them. It would appear that a frequent reason for parties often misunderstanding one another is not that language is so constricted or limited but that it is so vast. There is almost no limit to the number of ways one can describe the same situation in the context of what was said or heard; and no two descriptions will be linguistically identical. If there is also considered the fact that rarely, if ever, do eyewitnesses to the same incident agree in detail as to what they observed, it becomes evident that verbal communication is one of the most complex, fragile, and tenuous links between experiences that people have. It is not merely that some experiences involving communications are inexpress- ible but even those experiences which are expressible are, in many instances, matters involving not only intangible imponderables, but also subjective considerations as well. It is found, therefore, that not only were the authoriza- tion cards valid but also that they were signed without any misrepresentations by the Union. Such authorization cards will be considered a valid indicator of majority status unless it is proven that the employee was told that the card was to be used solely for the purpose of obtaining an election. As stated by the Supreme Court in N.LR.B. v. Gissel Packing Co., Inc., et at., 395 U.S. 575, 606-607 (1969): [W]e think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elections have been, after all, and will continue to be, held in the vast majority of cases; the union will still have to have the signatures of 30% of the employees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. In addition to approving the use of cards, of course, Congress has expressly authorized reliance on employee signatures alone in other areas of labor relations, even where criminal sanctions hang in the balance, and we should not act hastily in disregarding congressional judgments that employees can be counted on to take responsibility for their acts. Some imprecision in the mind of the signatory employees as to the legal thrust of what was told them at the May 17 meeting is understandable. Yet, given the unambiguous single purpose which appears on the face of the union cards herein, which clearly state that they are designations of the Union as the collective-bargaining representative of the signer, there is no basis for a good-faith doubt of their validity. This pragmatic example, however, does not account for a facet in this proceeding which is indeed strange. Starr, who was most recently employed by Respondent for a mere 2 months before the May 17 meeting, was the most zealous proponent of all the employees (some of whom worked for Respondent as long as 7 years) in attempting to oust the Union and disavow the validity of the authorization cards they had signed in May. This is evidenced by Starr writing a letter on September 9 to the Regional Director, to which he obtained the signatures of I I of his coworkers and then filing an RM petition in October. For some reason not apparent in the record, it would seem that Starr's version of what Nettinga, the union official, stated to the employees on May 17, is not what Starr testified to and also what he alleged in his September 9 letter and October RM petition to the Board. It is believed, therefore, that Cloudt's version is more reasonable in that he understood Nettinga to state that, by filing a representation petition with the Board, the employees would be protected from any reprisals by their Employer. Cloudt explained that Nettinga mentioned a 6- week period, not in conjunction with the petition, but rather in stating to them that if recognition was not forthcoming from Respondent upon the Union's filing a representation petition with the Board, then an election would be held by the Regional Director in approximately 6 weeks. Where a union has been designated by a majority of the employees in an appropriate unit, the Board and courts have uniformly held that absent a good-faith doubt as to 775 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union's majority status, the employer is obligated to bargain. 4 An employer confronted with a demand for recognition based upon authorization cards is justified in withholding recognition pending the result of a certifica- tion election, but if there is no "hint of impropriety in the solicitation or execution of the cards" and "the [Respon- dent] makes no attempt to assert a bona fide doubt," 15 the employer is not justified in withholding recognition. 16 The Respondent in the case subjudice had no valid basis for its refusal to recognize and bargain with the Union when so requested on May 21, 1976, at which time the Union was in fact the majority representative of the unit employees. And when the Union offered to prove its majority status, Drewry stated he was not interested in seeing the 14 employees' authorization cards.17 Equally cogent is the "To Whom It May Concern" writing, signed by Drewry on May 21, being posted on the company bulletin board 3 or 4 days later, along with a union notice of a meeting on May 26. It is clear that at the time the Union sought recognition from the Company, it had been designated collective-bargaining representative by 14 of its 19 unit employees. It is also not too unreasonable to assume under the facts herein that Starr, the most recent employee hired by Respondent in "the middle of March," displayed a zeal in attempting to abort the Union's objectives which might indicate that he was encouraged to do so by those who had the most to gain if the Union were not successful in organizing the employees. Finally, the actions of the Respondent, supplemented by Starr's filing both a representation petition and RM petition, evidences not only a rejection of the principles of collective bargaining but also a desire to gain time in which to dissipate the Union's majority. Such actions are proscribed. Respondent for all the reasons explicated supra, thereby violated Section 8(a)(5) of the Act.'8 II. THE REMEDY Having found that Respondent engaged in unfair labor practices, as set forth above, it will be recommended that it cease and desist therefrom and take affirmative action, set forth below, found necessary and designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The following unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees engaged in the handling and processing of meat and meat products at the employer's plant 14 United Mine Workers of America, et al. v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72 (1956); N.L.R.B. v. Lifetime Door Company, 390 F.2d 272. 276 (C.A. 4, 1968). 15 N.L.R.B. v. Lifetime Door Co., supra at 275, 276. "I See N.L.R.B. v. Sehon Stevenson & Co., Inc., 386 F.2d 551, 553-554 (C.A. 4, 1967); N.LR.B. v. Preiser Scientific, Inc., 387 F.2d 143, 144 (C.A. 4, 1967). m? See N.LR.B. v. The Sinclair Company, 397 F.2d 157 (1968), affd. sub nom. N. L.R. B. v. Gissel Packing Co., 395 U.S. 575. IX Validity of union authorization cards: See Levi Strauss d Co., 172 NLRB 732 (1968); McEwen Manufacturing Company, 172 NLRB 990 (1968); Aaron Brothers Company of California, 158 NLRB 1077 (1966); Winn-Dixie Stores, Inc., Tampa Division, 166 NLRB 227 (1967). located in Eagle, Idaho, excluding office clerical employees, supervisors, salesmen and guards as defined by the Act. 2. At all times since May 21, 1976, the Union has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 3. By refusing on and after May 21, 1976, to bargain collectively with the Union, Respondent has engaged in and is engaging in, an unfair labor practice within the meaning of Section 8(aX)(5) of the Act. Having found that Respondent violated Section 8(a)(5) when it violated the rights guaranteed to employees to organize and bargain collectively, it shall be recommended that there issue the following recommended: ORDER19 The Respondent, Tri-City Meats, Inc., Eagle, Idaho, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local No. 368, as the exclusive representative of its employees in the following appropriate unit: All employees engaged in the handling and processing of meat and meat products at the employer's plant located in Eagle, Idaho, excluding office clerical employees, supervisors, salesmen and guards as defined by the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain with above-named labor organization as the exclusive representative of all the employees in the above-described unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at Respondent's plant premises in Eagle, Idaho, copies of the attached notice marked "Appendix."20 Copies of said notice, on forms provided by the Regional Director for Region 19 of the Board, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 19 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 20 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 776 TRI-CITY MEATS employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. m