Tri-State Culvert Manufacturing, Inc.

TRI-STATE CULVERT MFG Tri-State Culvert Manufacturing, Inc. and Shop- men's Local 616 of the International Associa- tion of Bridge, Structural & Ornamental Iron Workers. Case 10-CA-14196 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On II September 1980 Administrative Law Judge Donald R. Holley issued the attached deci- sion.' On 20 June 1984 the Board issued an unpub- lished Order remanding the proceeding to the judge for a supplemental decision resolving certain credibility issues and making certain findings of fact and conclusions of law. On 10 July 1984 the judge issued the attached supplemental decision. The General Counsel filed exceptions to the sup- plemental decision and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, i Our dissenting colleague would find that the Respondent's poll of employees was unlawful on the basis that employee sentiment toward the Union was improperly influenced by the Respondent . In so doing, she not only misinterprets the evidence as having established that the Re- spondent assisted employee Leon Sailors in his antiunion activities, but also mischaracterizes the judge's findings in this regard The record shows that Sailors was actively opposed to continued union representa- tion and, there is no evidentiary link tying the Respondent to Sailors' ac- tivities Our dissenting colleague attempts to overcome this missing link by simply enumerating several incidents which, at most , give rise to an appearance of collusion between the Respondent and Sailors and by then concluding, based on that appearance , that a finding of fact is warranted While the judge aptly noted that certain circumstances surrounding Sail- ors' action create "suspicion " about improper involvement by the Re- spondent, he also recognized that mere suspicion or suggestion of impro- priety cannot substitute for evidence-a matter overlooked by the dissent The evidence does not support a finding that Sailors' activities were car- ried out with either the acquiescence, knowledge, or support of the Re- spondent There is no evidence whatsoever that the Respondent encour- aged or suggested that Sailors circulate the petition or that the Respond- ent knew or permitted Sailors to absent himself from the plant in order to engage in antiunion activities While the circumstances of the case might well prompt suspicion or evoke a suggestion of misdeeds , these senti- ments are no substitute for proof, the vital element necessary for a find- ing of unlawful activity Thus, having failed to establish the poll's illegal- ity on the basis of employer taint , the dissent's contention that the Re- spondent failed to establish a genuine reason for the poll is without sub- stance, given the circumstances of this case. The judge made three inadvertent errors in his I i September 1980 de- cision which we correct In par 1, he stated the parties executed a settle- ment agreement 8 August rather than 9 August In sec III,B , par 1, he spelled Roe Christopher Callaway's first name as "Rae " In sec III,E, par 2, he stated the Respondent conducted an employee poll 30 Novem- ber rather than 20 November 743 findings,2 and conclusions3 and to adopt the rec- ommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER DENNIS, dissenting in part. I cannot agree that the Respondent lawfully polled its employees 20 November 1978 in order to ascertain their support for the Union. The judge in his supplemental decision acknowl- edged that the Board's decision in Struksnes Con- struction Co.' requires that an employer have a lawful reason for conducting an employee poll. In finding a lawful reason, the judge relied on his finding that the Union did not enjoy majority sup- port when the Respondent recognized it in August 1978. This is not, however, the reason the Re- spondent gave at the time it conducted the poll. Because I believe the Board's Struksnes standard contemplates that the Employer's reasons will be judged as they existed when the poll was conduct- ed, I cannot adopt the judge's analysis. At the time the Respondent conducted the poll it either did not realize or did not reveal that the Union had not enjoyed majority support when the Respondent extended recognition. The Respondent instead claimed that its poll was warranted because a number of employees had signed a petition re- nouncing their support for the Union and because a number of employees had attended a 16 November 1978 bargaining session to ask for an opportunity to vote on union representation. The evidence does not establish, however, that employee Leon Sailors spontaneously drafted and prepared the petition renouncing support for the Union. Instead, the evidence establishes the Re- spondent assisted Sailors' antiunion activity in gen- eral and, as the judge found, the evidence strongly 2 The judge concluded that five disputed authorization cards are valid. He based this , in part, on finding that the testimony of Ralph Freeman, the solicitor of those cards, was more credible than that of the employees solicited to sign the cards However, in reaching this determination the judge omitted discussion of the card solicitation of Larry Mooney In view of the judge's analysis of the other four disputed card solicitations and based on our review of the testimony, we conclude that the omission of the Freeman-Mooney card solicitation was an oversight and that the judge's conclusion that Mooney's card is valid was based on an analysis similar to that described in the other four instances . We note, however, that in stating his conclusions , the judge mistakenly refers to Larry Mooney as Earnest Mooney 3 We reject the General Counsel's contention that the Union estab- lished a card majority in March 1978 and that, therefore, in the absence of proof of loss of majority status before the time of recognition, the Re- spondent acquired a bargaining obligation The record contains insuffi- cient evidence to establish the number of bargaining unit employees at the time of the alleged March 1978 majority i 165 NLRB 1062 (1967) 280 NLRB No. 87 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggests the Respondent assisted him with the peti- tion as well. Although Sailors was not a member of the Union's bargaining team, the Respondent apparent- ly permitted Sailors, a full-time employee, to be absent from work to attend the Respondent's bar- gaining sessions, which were held during working hours. At the sessions, Sailors interrupted bargain- ing to comment that employees had renounced their support for the Union and repeatedly de- manded an opportunity to vote on union represen- tation. A company secretary prepared Sailors' peti- tion, and Sailors duplicated it in part in the plant. The petition stated employees were tricked into signing union authorization cards. But when Sail- ors, the purported author, was asked at the hearing why he stated employees were tricked, he could not say. Nor does the evidence establish that the employ- ees who attended the 16 November bargaining ses- sion did so spontaneously and unassisted. Thus, Sailors encouraged them to attend the sessions and transported some of them in his truck. The employ- ees who attended the session, which was held at a hotel away from the Respondent's plant, were paid for their time and not disciplined for leaving work. At the meeting, the employees did not spontane- ously make their feelings known. Instead, Sailors called on each of them and asked them what they had to say. It is well established that it is the employer's burden to show that its poll meets the Struksnes criteria.2 My review of the evidence convinces me that the Respondent has not demonstrated that the employee sentiments for which it purported to con- duct the poll were genuine and uncoerced. I would therefore find the Respondent violated Section 8(a)(l).3 2 Burns Security Services, 225 NLRB 271, 274-275 (1976), enf denied on other grounds 567 F.2d 945 (10th Cit. 1977) 2 My colleagues' conclusion that "[tlhe evidence does not support a finding that Sailors' activities were earned out with either the acquies- cence, knowledge , or support of the Respondent" is not only doubtful, it misses the point The question is not whether the General Counsel estab- lished that the Respondent unlawfully assisted Sailors; the question is whether the Respondent established that the reason for its poll is genuine I find it did not Nancy E. Pritikin, Esq., and Paul K. Tamaroff Esq., for the General Counsel. Townsell G. Marshall Jr., Esq. (Constangy, Brooks & Smith), of Atlanta, Georgia, for the Respondent. Romeo C. Fouch, Secretary-Treasurer, of Atlanta, Geor- gia, for Charging Party Local. W. W. Hudson, International Representative, of Atlanta, Georgia, for Charging Party International. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On March 21, 1978, 1 Shopmen's Local 616 of the Interna- tional Association of Bridge, Structural and Ornamental Iron Workers (the Union) filed a charge in Case 10-CA- 13537. Thereafter, the Regional Director for Region 10 of the National Labor Relations Board (the Board) issued a complaint on April 21 alleging that Tri-State Culvert Manufacturing, Inc. (Respondent), had engaged in con- duct which violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (Act). On August 8, the Union and Respondent executed a "non-Board" settle- ment in which they agreed2 that Respondent would rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of "all production and maintenance employees including truck drivers employed by the Company at its Lawrenceville, Georgia plant, ex- cluding all office clerical employees, watchmen, guards, professional employees and supervisors as defined in the Act" and the Union would withdraw the charge in Case 10-CA-13537 with prejudice. On August 10, the Acting Regional Director approved the Union's withdrawal re- quest and issued an order dismissing complaint, with- drawing notice of hearing, and closing case.3 On November 29, the Union filed the charge in Case 10-CA-14196 alleging that Respondent had withdrawn recognition from the Union as bargaining representative on November 20. On completion of the investigation in that case, the Regional Director, by letter dated January 2, 1979, advised the parties he was withdrawing his ap- proval of the withdrawal request in Case 10-CA-13537, and on the following day, January 3, 1979, he issued an- other complaint in Case 10-CA-13537, identical to the complaint issued April 21, 1978. On January 8, 1979, the Regional Director issued a complaint on the charge in Case 10-CA-14196 alleging that Respondent had violat- ed Section 8(a)(1) and (5) of the Act by conducting a poll of employees and withdrawing recognition from the Union about November 20, 1978.4 At the same time, Cases 10-CA-13537 and 10-CA-14196 were consolidat- ed for trial. After filing answers to both complaints de- nying that it had engaged in the unfair labor practices al- leged, Respondent, on April 13, 1979, filed a motion to dismiss the complaint in Case 10-CA-13537 claiming it was time barred by Section 10(b) of the Act. On May 8, 1979, Administrative Law Judge Charles W. Schneider issued an order dismissing complaint wherein he ordered that the complaint issued in Case 10-CA-13537 on Janu- ary 3, 1979, "... is hereby dismissed." On September 7, 1979, the Board issued order denying request for review of Judge Schneider's dismissal of the described com- plaint. i All dates herein are 1978 unless otherwise indicated 2 See G.C Exh 2 2 See G C Exh 84 (attachment Er Exh 2) 4 The complaint was amended at the hearing to allege that "Respond- ent on or about December 22, 1978, unilaterally and without notice to or consultation with the Union, granted a wage increase to its employees " Respondent denied the allegation TRI-STATE CULVERT MFG. This matter was tried before me at Atlanta, Georgia, on October 22, 23, 24, and 25, and December 6, 1979. All parties appeared and were afforded full opportunity to participate, to introduce and to meet material evi- dence, and to engage in oral argument . The General Counsel and counsel for Respondent filed posthearing briefs which have been carefully considered. On the entire record in the case, the briefs, and arguments, and from my observation of the witnesses, I make the follow- ing FINDINGS OF FACT I. JURISDICTION It is uncontested, and I find, that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II STATUS OF LABOR ORGANIZATION It is uncontested, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES5 A. Background Respondent operates a plant in Lawrenceville, Geor- gia, where it manufactures corregated metal pipe which is used for storm drainage. Much of its product is deliv- ered directly to customers; jobsites, which are located in Georgia and in neighboring States. Its plant is staffed with some 40-45 employees. The employees immediately involved in this proceeding are the production and main- tenance employees and its truckdrivers. During February and March 1978, the employees described were super- vised by Doyle Johnson, vice president in charge of op- erations, Randy Martin, plant manager, and Walter Wyatt, foreman.6 In February 1978, employees Russell Heath, Ralph Freeman, John Watson, John Dean, and Roy Givens met with Johnson in a reception room on Respondent's prem- ises and informed him they wanted better wages, uni- forms, and truck pay. Johnson informed them he would give their requests consideration.? B. The March Union Activity and Respondent's Reaction Thereto After receiving no satisfaction from Johnson, employ- ees Freeman, Rae Christopher Callaway, and Heath began to solicit employee signatures on union authoriza- 5 Respondent's motion to correct the record dated February 6, 1980, which is unopposed, is hereby granted 6 Respondent admits, and I find, that Johnson and Martin are, and have been at all times material, agents of Respondent and supervisors within the meaning of Sec 2(11) of the Act Wyatt's status is discussed infra 7 Watson and Dean recalled Johnson said he would consider their re- quests Heath testified Johnson said there was no way he would grant the requests I credit Watson and Dean as they were more impressive when testifying than Heath 745 tion cards on March 13.8 Some 19 employees had signed cards by March 15.9 Through the testimony of Freeman and Johnson, the General Counsel established that each of the 19 employees who signed cards were then em- ployed by Respondent as production and maintenance workers or truckdrivers. Employees Kenneth Broughton, Bobby Davis, Ernest Damons, and Larry Mooney each testified that Freeman induced them to sign cards by rep- resenting to them that everyone else had already signed. In addition to claiming he did not sign a card, employee Clinton Damons testified that Freeman or Callaway rep- resented to him, when they asked him to sign a card, that all the other employees in the plant had already signed. 10 Johnson was out of town on March 15 and 16 and re- turned to the plant on Friday morning, March 17. About 4 p.m. on Friday, he called all the employees together and indicated he was unhappy with the condition of the premises and informed all employees they no longer had a job until he talked to each of them individually. He then informed then if they were interested in working to be at the plant at 8 a.m. the next day. 11 It is undisputed that Johnson individually interviewed each of Respondent's employees in his office on Satur- day, March 18. The general tenor of the interviews is re- vealed by the uncontradicted testimony of employees John Watson, Johnny Mooney, and Dewey Thacker. Thus, Watson testified that when he arrived at Johnson's office the latter told him that John Thrasher had told him employees had signed union cards; asked if he had signed a union card; stated if the Union got in he would have to close down; asked how he would vote; and in- formed him that they would be getting a raise the fol- lowing Monday. Similarly, Mooney testified that during his March 18 interview Johnson complained of the con- dition of the yard; informed him that the employees should go elsewhere if they wanted a union; informed him that while unions were good, one at the plant would not be good because if one came in cost would go up and they would have to close down; and stated that Nashville Culvert had closed because of the Union. 8 To cast light on events occurring within the Sec 10(b) period, the General Counsel, in effect, sought to prove the allegations contained in the complaint in Case 10-CA-13537, which was dismissed on May 8, 1979, because Sec 10(b) barred litigation of such issues Such facts are considered solely for background purposes herein 9 The record reveals that employees Freeman and Callaway accom- plished most of the in-plant solicitation Freeman testified that he induced most employees to sign by asking them whether they wanted better wages Additionally, Freeman testified he actually observed the employ- ees sign cards that were placed in evidence as the G C Exh 3 through 21 One employee, Clinton Damons (G C Exh 10) claimed he did not sign a card, but while sitting on a forklift stated to Freeman and Gallaway that he was too busy to sign and if his name was to get on a card someone else would have to put it there I find that by such action he authorized the solicitors to sign a card for him io I find it unnecessary to resolve the credibility conflicts raised by the subjective testimony concerning the circumstances in which the named employees signed union cards, as I find, infra, that Respondent's subse- quent recognition of the Union raises a presumption that the Union then represented a majority of Respondent's employees i i Johnson testified he first learned of the organization campaign on Saturday morning, March 18, through discussion with employee John Thacker I strongly suspect Johnson obtained such knowledge on Friday, March 17 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thacker testified that during his interview Johnson told him they would close the doors if the Union came in; asked him if he would help stop it; and informed him he would get a raise the following Monday. Watson and Thacker were told Monday, March 20, that wages were frozen because of the Union. Watson was told by Plant Manager Martin they could thank Freeman for the freeze. On Saturday, March 18, employees Freeman and Heath were discharged when interviewed by Johnson. Another employee, Dean, was terminated Monday, March 20. Although the legality of those terminations is not at issue in this case the General Counsel caused each of the named employees to describe his interview with Johnson on March 18. Freeman, the principal in-plant organizer, testified Johnson simply asked him what was going on and then told Freeman he had been drinking on the job and he did not need him any longer.12 Heath de- scribed his interview as a situation in which Johnson asked him if he had signed a card and how he would vote, and informed him, when he evaded answering the questions, that he could not use him any more. Heath claims Johnson asked him during the conversation how one man, Freeman, got so many people to sign cards.' a Dean testified that on March 18 Johnson asked him if he had participated in the union organization and if he had signed a letter. He further claims Johnson told him he had made the Company what it was during his 15 years there and he did not want anyone messing around trying to bring in a union-that if the men wanted to work union they could go elsewhere and leave the Company alone. 14 By letter dated March 16, the Union requested that Respondent recognize and bargain with it as the exclu- sive representative of the Company's production and maintenance employees (G.C. Exh. 76). On March 21 Respondent declined to recognize the Union until an election was conducted in Case 10-RC-1 1362, filed on March 16 by the Union (G.C. Exh. 83). On March 23 the Union advised Respondent by letter that it understood that employees had been promised a wage increase which was being withheld because of the Union and it indicated it would not file charges if such increase was given (G.C. Exh. 85). 12 Johnson claims Freeman came to the office and quit I credit Free- man, a reluctant witness employed elsewhere, who testified in a straight- forward manner 10 While Johnson claimed he fired Heath because he had blown up an engine, Heath testified that when he asked for a termination slip both Johnson and Plant Manager Martin told him they could not put the real reason for the termination on the slip Martin did not testify at the hear- ing. Johnson also denied that he interrogated Heath about his union ac- tivities. I credit Heath 14 Johnson claims he merely asked Dean if he knew anything about the union cards and, if so, did he want to talk about it He claims the remainder of the conversation with Dean related to the condition of the yard, driver assignments, and Dean's consistent tardiness Dean denied that tardiness was discussed I credit Johnson's assertion that Dean's tar- diness was discussed and concluded that, except for that subject, both witnesses gave their best recollection of the conversation C. The Original Charge and the Outside-the-Board Settlement As revealed supra, the Union filed the original charge in Case 10-CA-13537 on March 21, 1978, and complaint alleging violation of Section 8(a)(1), (3), and (5) of the Act issued on April 21. Thereafter, on August 9, 1978, Respondent and the Union entered an agreement which provided,15 1. The Company will recognize and bargain with the Union as the exclusive bargaining representative for all purposes as defined in the National Labor Relations Act for all production and maintenance employees including Truckdrivers employed by the Company at its Lawrenceville, Georgia plant, ex- cluding all office clerical employees, watchmen, guards, professional employees and supervisors as defined in the Act. 2. (A) John S. Dean, Ralph Freeman, and Russell Heath, whose discharges are alleged to be in viola- tion of Section 8(a)(1) and (3) in Case No. 10-CA- 13537 hereby waive reinstatement to employment with the Company. (B) The Company agrees to pay to Dean, Free- man, and Heath the following gross amounts of backpay listed below beside their name: John S. Dean $1,000 Ralph Freeman $1,100 Russell Heath $2,700 The mechanics of the payment of the back pay will be as follows: (i) Dean and Freemen will receive their money on August 9, 1978, at National Labor Relations Board offices, 101 Marietta Tower, N.W., together with a statement showing deductions. In exchange for the back pay Dean and Freeman will execute and deliver signed forms to the Com- pany relinquishing any right to reinstatement and re-employment at Tri-State Culvert Manufacturing, Inc. at Lawrenceville, Georgia. (ii) Heath will receive his money in the following manner: He will execute a release relinquishing any right to reinstatement and re-employment at Tri-State Cul- vert Manufacturing, Inc. at Lawrenceville, Georgia and deliver same to an officer of the Union. The Union will notify Michael Shershin, Attor- ney for Tri-State Culvert Manufacturing, Inc., of the receipt of the release. The check and release will be exchanged at a mutually convenient time and place , by Michael Shershin and the Union and check will be given to Russell Heath. '5 G.C Exh 2 TRI-STATE CULVERT MFG. 3. If not already done so, the Company will pay to those persons listed on Exh. A the sum of one day's pay for March 18, 1978. 4. The Union agrees to withdraw the unfair labor practice charges it has pending with the National Labor Relations Board against the Company in Case No. 10-CA-13537 and the withdrawal of the charges will be with prejudice. 5. By entering into this Agreement, the Company does not admit that it has in any way violated the National Labor Relations Act or any other local, State or Federal law. 6. Mr. Doyle Johnson, a Vice President of the Company, in signing this Agreement has authority to bind the Company. D. The Negotiations and Related Events Upon execution of the above-described out-of-Board settlement, the Union, by letter dated August 9, asked Respondent to supply it with the names and addresses of all bargaining unit employees. Respondent furnished such information by letter dated August 14. Thereafter, the Union formulated its contract proposals and mailed them to Respondent on September 6, stating it was ready to bargain and inviting Respondent to name a date for the commencement of negotiations. During the week of Sep- tember 17 the parties mutually agreed the first bargaining session would be held at the Holiday Inn in Suawanee, Georgia, on September 28.16 The first bargaining session was held on September 28 as scheduled . Respondent was represented by Attorneys Michael Shershin and Townsell Marshall and its vice president, Johnson. Present for the Union were employee Dewey Thacker and Union Representatives William Hudson and Romeo Fouch. At the outset of the session, the negotiators agreed on the ground rules that would be followed during the negotiations and it was decided, inter alia, that non-economic items would be negotiated first. The remainder of the session was spent in discus- sion of the Company's operations and the meaning and applicability of the various proposals which had been made by the Union. At the conclusion of the session, Hudson indicated he was scheduled to be on vacation during the next 2-week period and the parties mutually agreed to meet next on October 17. Employee Thacker testified, without contradiction, that Respondent's plant manager, Randy Martin, told him at one time that he did not have to go to the meet- ing. He informed Martin he had been asked to go. He further indicated that Respondent's foreman Walter Wyatt told him on October 6, the Friday after the first negotiation session, that he had heard in the office that when it was all over with Thacker was going to lose his job. Wyatt was not called as a witness to refute Thacker's testimony. 17 is The parties stipulated that bargaining sessions were held on Septem- ber 28, October 17, October 31, and November 16. 17 The record reveals that Wyatt had authority to initial employees' timecards and that he had authority to authorize trip pay for drivers He shared an office with the plant manager and wore a white shirt while working It is not seriously disputed, and I find, that he was a supervisor 747 The second bargaining session was held October 17. The parties were represented by the same individuals who had attended the first session . Also in attendance was an employee named Leon Sailors . While Sailors sat with members of the Union 's negotiating team , employee Thacker testified that Sailors was not a member of the Union's negotiating committee . Sailors indicated during his testimony that he went to the negotiation sessions so he could report occurrences during negotiations to the employees . 18 The morning portion of this bargaining ses- sion was spent in dicussion of the Union's proposals. At some point during the discussion , Sailors commented that he spoke for the men and indicated they did not want the Union and desired a vote. He then presented Hudson with a petition which had been signed by some 26 em- ployees. The body of the petition stated: t 9 We the employees of Tri-State Culvert which names are shown below do here by turn down this local union because we do not accept it, we were tricked into signing cards for the union against our understanding and do not want any part of this union. Hudson's response to Sailors was to the effect that a vote was not in order, but the employees had the ultimate say because they would get to vote on the contract.20 When Sailors handed the above-described document to Hudson, Respondent Attorney Shershin asked what the paper was and whether it was something the Company should see. Hudson refused to show Respondent the document indi- cating it involved an internal union matter. After the ses- sion ended, Sailors went to the restaurant in the Holiday Inn and handed Johnson a copy of the antiunion petition signed by employees. During the afternoon portion of the second bargaining session, Respondent presented the Union with its coun- terproposals on preamble, recognition, purpose, and plant rules. The negotiators discussed the proposed clause and reached tentative agreement on a recognition clause when Respondent agreed to language indicating "all" employees in the described unit rather than only "full- time" employees was acceptable. At the conclusion of and an agent of Respondent within the meaning of Sec 2(11) of the Act at all times material 18 Respondent had agreed in advance of the commencement of negoti- ations that it would excuse employee members of the Union 's negotiating team from work so they could participate in negotiations . As Sailors at- tended bargaining sessions during working hours, I infer he had discussed his intention to attend the sessions with Respondent and had obtained permission to be absent from work while attending. 19 See G C Exh 84 (attachment Er Exh 6). 20 Sailors, a lead welder who had worked for Respondent about 9 years, claimed, when called as a witness, that he and his wife composed the language appearing on the antiunion petition described above When asked what information led he and his wife to decide they should draw up a paper saying people were tricked into signing cards, Sailors replied to be honest he did not know He indicated he had a Respondent secre- tary type the document during working hours at a time when Johnson was not in the office, and claimed he had some copies made at the plant and others made elsewhere When the document had been prepared, he circulated it among the employees and solicited their signatures on it It is undisputed that several employees, including Sailors, Hugh Hams, Randy Statum, and Robert Pierce did not sign authorization cards, but did sign the antiunion petition 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the session, the negotiators mutually agreed they would next meet on October 26. The third bargaining session was actually held on Oc- tober 31,,as Hudson was unable to attend on October 26. The same persons who attended the prior session were present. The morning part of the session was spent in discussion of the preamble, recognition, purposed plant rules, and work by supervisors. During the afternoon, Respondent made counterpro- posals on union representation, grievance and arbitration, discharge and discipline , and bulletin boards. Respond- ent's counterproposals were discussed but no agreement was reached. Attorney Shershin recalled that, at some point during the afternoon, Sailors asked whether an ar- bitrator could come in and let the employees vote on whether they wanted a union , and someone said "no." At the conclusion of the session, the parties mutually agreed they would meet next on November 16. The fourth bargaining session was held on November 16 as scheduled. The same persons, including Sailors, at- tended. The session started at 10 a.m., and Sailors left shortly thereafter. While he was gone, the negotiators discussed union representation and visitation , plant rules and bulletin board, reached partial agreement on union representation and visitation and agreement on bulletin boards. After he left the negotiation session under discussion, Sailors went to the plant and caused approximately 26 employees to board trucks which took them to the Holi- day Inn where negotiations were in progress .21 Sailors guided the employees to the room where the negotiators were assembled and indicated to the negotiators that the employees desired to make their feelings known. Johnson described what happened when the employees arrived at the meeting. He indicated Sailors proceeded to call the names of the individual employees and he asked them what they had to say. Johnson recalled the employees made comments such as, "[H]ow are we going to get rid of the Union, why can't we have an election, what have we got to do to stop all his nonsense, or why are you here." He further recalled that Fouch and Hudson ex- plained that the Union had a legal right to be there and commented, at one point, that the employees had made their point and the Union would get back to them to see what could be done. At some point while the employees were in the room with the negotiators, employee Thrash- er asked Johnson a question regarding the March termi- nations, and Johnson then asserted that he had not fired the employees; that he just told them they could not work until they talked to him on Saturday morning. He said he admitted it was bad timing and explained that he talked with Freeman like he did all employees and that Freeman called him a son-of-a-bitch, threw his credit card on the table, walked out the door, and told people he was fired for drinking. 21 The record reveals that the employees did not clock out when they left Respondent's premises, and it is undisputed that they were paid for time spent away from the premises on the occasion in question. Sailors testified the plant manager , Martin, subsequently chewed him out for causing the employees to leave without clocking out , but Martin did not appear to corroborate such assertion By mutual consent, the parties suspended negotiations about noon on November 16, agreeing to contact each other later to arrange for a subsequent meeting. E. Polling of the Employees It is undisputed that Johnson and his legal counsel de- cided during the afternoon of November 16 to conduct a poll of Respondent's employees to ascertain whether they desired to have the Union represent them further. Such individuals decided to have a minister , Reverend Childers, hold the poll. They further decided that those eligible to participate would be all employees in the unit described in the prior settlement agreement employed as of November 18, 1978, except four students who worked part-time, i.e., Chris Damons, Jeff Sailors, Mike Wait, and Richard Thrasher.22 On Monday morning, November 30, Johnson informed his supervisors a poll was to be held, and when Rever- end Childers arrived, the employees were assembled. At that time, Johnson read a prepared statement to employ- ees, stating:2 a I've asked you to get together today because I have a very important matter for your attention. As you know, since August of this year, we have rec- ognized the Shopmen's Local 616, International As- sociation of Bridge, Structural & Ornamental Iron- workers, AFL-CIO, as the union representing our production and maintenance employees and truck drivers, and we have been engaged in collective bargaining with the union. About a month ago, I was presented with a page of paper signed by a number of our employees stat- ing basically that they did not want any part of the union. Last Thursday, most of our employees came to the bargaining session between the company and the union at the Holiday Inn in Suwanee where, among saying other things, a number of employees asked for the opportunity to vote on the union matter. As a result, we have a question regarding wheth- er the union continues to represent a majority of our employees. In view of this, we have arranged to have Rev. Bill Childers, Minister of the First Methodist Church here in Lawrenceville, to come in and conduct a secret ballot poll among you on this question. As soon as I am through talking all the members of supervision and I will leave the working area of the plant and Rev. Childers will take over and conduct the poll. I want to assure you that it will be a poll by secret ballot. No one will know how you vote in this poll. You can participate in it if you wish to. 22 The record reveals that the four students worked full time during the summer and were retained as part- time employees when they went back to school, working weekends and, in some instances, after school hours They were paid the minimum wage and did not receive benefits enjoyed by full-time employees, i.e , vacations, hospitalization insurance, and partial uniform allowance 23 See G C Exh 74. TRI-STATE CULVERT MFG You do not have to participate if you do not wish to. I also want to say that there will be no reprisals against any employees as a result of this poll. In other words nothing will happen to any of you con- cerning your work here as a result of your partici- pation in this poll, or as a result of the outcome of the poll. I am now going to turn the matter over to Rev. Childers. After Johnson read the above-described statement, Rev- erend Childers read a statement which had been pre- pared for him. It stated:24 Mr. Doyle Johnson has asked me to come in and to conduct a poll among you concerning whether or not you desire to have the union continue to rep- resent you. I am here only to be sure that the matter is con- ducted in a fair way and that your wishes are accu- rately made known to the company. In just a minute, I am going to give each of you a ballot and ask that you step over there and mark the ballot. This is to be a secret ballot poll. You are not to sign your name, or initial the ballot, or identify the ballot with yourself in any way whatsoever. If you do, I will not count the ballot and will destroy it without the company seeing it. Also, let me explain the ballot. If you want the union to continue to represent you; mark an "X" in the "YES" box. If you no longer wish the union to represent you, mark an "X" in the "NO" box. After you have marked the ballot, fold it and bring it forward and put it in the ballot box here in front of me. O.K., let's get started; one at a time , please. Reverend Childers, who is the pastor at the Briarcliff United Methodist Church in Atlanta, Georgia, testified that he was given a list of employees, which was placed in the record as the General Counsel's Exhibit 68, and was told by Attorney Marshall how he should conduct the balloting. He explained he was informed he should call out the names of employees and permit only those whose names were on the list to vote. Mechanically, he displayed an empty card box ballot box to the gathered employees and after closing the box called the employees by name and directed them to take ballots that he gave them to an empty restroom where they marked them and therefore placed them in the ballot box. While Reverend Childers placed a checkmark after the names of employ- ees when he gave them a ballot, he did not personally know any of the employees and used no assistant or ob- server who did know the employees. The ballots used were quite simple. They contained the verbage "Do you want the union to continue to represent you for purpose of collective bargaining," and contained blank squares with the words "Yes" and "No" above the squares.25 At 24 See G C Exh. 84 (Er Exh 9) 2 6 R Exhs 7a, b, and c 749 the conclusion of the balloting, Reverend Childers count- ed the ballots in the presence of the employees, Johnson, and Respondent counsel and thereafter prepared a "Tally of Ballots," which reveals that of 39 eligible voters,, 32 cast "No" ballots, 2 cast "Yes" ballots, and 1 cast a void ballot.26 Subsequent to the counting of the ballots, they were placed in an envelope and sealed and given to At- torney Marshall who maintained custody of them until they were brought to the trial herein. By letter dated November 20, 1978, Respondent noti- fied the Union it had "a good faith doubt" that the Union continued to represent a majority of its produc- tion and maintenance employees and truckdrivers, and it indicated it was withdrawing recognition from the Union and would decline to bargain further with it.27 In sum- mary, the reasons assigned for the action in the letter were: the signing of the previously described antiunion petition by the employees; the appearance of approxi- mately 26 employees at the November 16 bargaining ses- sion, and their indication at the meeting that they were dissatisfied with the Union; and the results of the poll conducted on November 20. Analysis and Conclusions The General Counsel and Respondent both recognize in their briefs the principle announced by the U.S. Su- preme Court in Franks Bros. Co. v. NLRB, 28 that "a bar- gaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed." Similar- ly, they both cite Poole Foundry & Machine Co. v. NLRB,29 which stands for the proposition that a bar- gaining relationship established by settlement agreement is also entitled to a reasonable period of time in which to function, free of any challenge to the Union's majority status. There can no longer be any doubt that the princi- ple stated in Poole is applicable if the settlement in ques- tion is, as here, an out-of-Board settlement. See Ted Man- sour's Market, 199 NLRB 218, 221 (1972); Los Angeles Tile Jobbers, 210 NLRB 789 (1974); and All Brand Print- ing Corp., 236 NLRB 140, 148 (1978). Applying the above teachings to the instant situation, I find that Respondent, by entering the out-of-Board settle- ment on August 9, 1978, in which it agreed it would "recognize and bargain with the Union as the exclusive collective-bargaining representative . . . for all produc- tion and maintenance employees including Truck drivers employed by the Company at its Lawrenceville, Georgia plant, excluding all office clerical employees, watchmen, guards, professional employees and supervisors as de- fined in the Act,"30 was precluded from refusing to bar- 28 R Exh 8 27 See G C Exh 84 (attachment Er Exh 11) 28 321 U S 702 (1944) 29 192 F 2d 740 (4th Cir 1951), enfg. 95 NLRB 34 (1951), cert denied 342 US 954 (1952) 30 As the record reveals the employees in the described bargaining unit are supervised by the same individuals , are in daily contact with one another, and enjoy the same benefits, I find the bargaining unit in ques- tion to be an appropriate unit for the purpose of collective bargaining within the meaning of Sec 9(b) of the Act. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain with the Union and/or questioning its majority status until such time as the parties had bargained for a reasonable period of time, thus affording the bargaining relationship a fair chance to succeed. In Brennan 's Cadillac, 231 NLRB 225 (1977), the Board indicated that in a situation wherein an employer has become obligated to bargain with a union, the actual majority status of the union is immaterial thereafter until a reasonable time for bargaining has passed. While no definite guidelines for determining what constitutes a rea- sonable time during which a union enjoys the irrebutable presumption of majority status was set forth in the deci- sion, the Board stated (at 226): There are no rules as to what constitutes a reasona- ble period of time, as each case must rest upon its own individual facts. . . . However, we are con- strained to state that reasonable time does not depend upon either the passage of time or the number of calendar days on which the parties met. Rather, the issue turns on what transpired during those meetings and what was accomplished therein. In his dissent from the majority's decision that bargain- ing had continued for a reasonable period of time in Brennan 's Cadillac, Chairman Fanning noted in footnotes 12, 13, 15, and 16 (at 229) that the following factors have been considered to determine whether bargaining had been conducted for a reasonable period of time: the pres- ence or absence of impasse (Lahey's of Muskegon, 176 NLRB 537 fn. 1 (1969)); whether bargaining was for a first contract (Blue Valley Machine & Mfg. Co., 180 NLRB 298, 304 (1969)); protracted delay caused by the union (Freeman Co., 194 NLRB 595 (1971)); and substan- tial progress coupled with a lack of impasse before with- drawal of recognition (N. J. MacDonald & Sons, 155 NLRB 67 (1965)). The facts set forth, supra, convince me that one can only conclude in this case that the bargaining relation- ship created by the August 9 out-of-Board settlement was not permitted to continue for a reasonable period of time. Here the bargaining relationship was new and the parties were bargaining for a first contract. Thus, the parties engaged in extensive discussion of such matters as whether the International Union should be a party to the contract, whether all, as opposed to all full-time employ- ees, should be in the described bargaining unit, and simi- lar matters that would not normally be the subject of de- tailed negotiations in contract renewal situations. As indi- cated by Attorney Shershin, both parties appeared to be engaged in a good-faith attempt to conclude an agree- ment and actual or substantial accord had been reached by the end of the November 16 session on preamble, pur- pose, scope of agreement, recognition, supervisors work- ing, plant rules, and bulletin boards.31 In the circum- stances, I find the record reveals the parties were pro- ceeding in their negotiations at a normal pace as of No- vember 16, 1978, and it is clear that no impasse existed. While, as I have found, the record reveals that the ne- gotiations of the parties were proceeding at a normal 31 See G C Exh 84, 12 pace before recognition was withdrawn, Respondent maintains in its brief that the following factors should cause me to conclude that the bargaining relationship under consideration had existed for a sufficient period to permit it to succeed by November 16, 1978 (Br. 25 and 26): (1) Bargaining had occurred over a 3-1/2-month period. (2) The Union did not communicate with Re- spondent concerning bargaining until 4 weeks after the date of recognition. (3) Following the first meeting, it was the Union that did not meet for 3 weeks. (4) The Union canceled the session scheduled for October 26 and caused it to be rescheduled to October 31. (5) The Union could not meet during the week of November 6 and the fourth session was delayed until November 16. (6) Much of the time spent in negotiations was consumed by em- ployee and union representatives discussions that did not relate to matters being negotiated. I find no merit in Re- spondent's contention that the above-described factors compel a finding that the instant bargaining relationship was given a reasonable time to succeed. Regarding communication between the Union and Re- spondent prior to the first bargaining session, I have found, supra, that the Union requested by letter dated August 9 that Respondent furnish it with the names and addresses of employees to enable it to communicate with those employees prior to commencement of negotiations and such information reached the Union shortly after Respondent furnished it by letter dated August 14. Ap- proximately 3 weeks later, on September 6, the Union forwarded its contract proposals to Respondent indicat- ing it was ready to commence negotiations. By mutual agreement, September 28 was set as the date for com- mencement of negotiations. In the circumstances de- scribed, I find the Union had a legitimate reason for re- fraining from communicating with Respondent for the purpose of commencing negotiations prior to September 6, and I further find that the Union did not unreasonably delay the commencement of negotiations. I attach no particular significance to the fact that the second bargaining session was held 3 weeks after the first, and the third and fourth sessions were held a week later than the dates allegedly suggested by Respondent's counsel. The record reveals that Hudson went on a 2- week vacation, which had previously been scheduled, between the first and second bargaining sessions, he was called out of town thereby necessitating rescheduling the meeting scheduled for October 26, and a November 16 meeting date was simply more convenient than a meeting date during the preceding week would have been. Un- availability of parties on suggested meeting dates is a fre- quent occurrence in bargaining situations and the evi- dence in this case fails to show that the Union's reasons for preferring that bargaining sessions be held on dates other than those suggested by Respondent were improp- er in any respect. Respondent failed to factually establish its claim that union negotiators wasted time during negotiating sessions by discussing matters that were extraneous to negotia- tions. While Respondent's counsel asked employee Thatcher during cross-examination if he and others had not spent considerable time discussing hunting and simi- TRI-STATE CULVERT MFG. lar subjects during the negotiating sessions, Thatcher in- dicated that such discussions occurred before the bar- gaining sessions began. No further evidence was offered to show that the union participants in the negotiations wasted time by discussing matters that were not germane to negotiations. Remaining is Respondent's contention that the bargain- ing relationship here existed for 3-1/2 months and such period was sufficient to permit it to function for a rea- sonable period of time. While it is true that the bargain- ing relationship extended over a period approximating 3- 1/2 months, actual bargaining was accomplished during a relatively short penod-from September 28 to Novem- ber 16, or approximately 1-1/2 months. Significantly, only four bargaining sessions were held during the period of actual bargaining, and, from the second session forward, the Union found itself defending against Sailors' claim that it did not represent a majority of the employ- ees. Little was accomplished at the fourth session be- cause of the disruption, which resulted when Sailors ap- peared with other plant employees. In my view, the par- ties were on November 16 still in the "critical initial stages of bargaining" and the bargaining relationship had not existed sufficiently long to afford any realistic chance of success. In sum, I conclude and find, for the reasons indicated that Respondent was not free on November 20, 1978, to withdraw recognition from the Union and refuse to bar- gain further with it because the bargaining relationship created by the August 9 out-of-Board settlement agree- ment had not been permitted to function for a reasonable period of time. It necessarily follows, and I find, that by engaging in such prohibited action, Respondent violated Section 8(a)(1) and (5) of the Act as alleged. Turning to the poll of the employees conducted by Respondent on November 20, 1978, I conclude that my finding that Respondent failed to allow a reasonable period for bargaining following its recognition of the Union on August 9, necessitates a further finding that Respondent had no lawful reason for polling its employ- ees on the date indicated as it was not then entitled to question the Union's majority status.32 Absent a lawful purpose, which is communicated to employees, an em- ployer cannot poll its employees to ascertain whether they support a union without violating Section 8(a)(1) of the Act. Struksnes Construction Co., 165 NLRB 1062 (1967). Respondent had no lawful purpose when it con- ducted the poll under consideration. Accordingly, I find that by polling its employees to ascertain whether they did or did not support the Union on November 20, 1978, it violated Section 8(a)(1) of the Act as alleged. Remaining for discussion are the General Counsel's contentions that Respondent violated Section 8(a)(1) and (5) of the Act by granting employees a wage increase about December 22, 1978, and that Respondent, through the October 6, 1978 conduct of Foreman Wyatt, violated Section 8(a)(1) of the Act. Since Respondent unlawfully withdrew recognition from the Union on November 20, 1978, and the record reveals that Respondent granted all of its employees a 751 25-cent-per-hour wage increase just before Christmas 1978, without notifying or bargaining with the Union, I find that the wage increase was granted in violation of Section 8(a)(1) and (5) of the Act as alleged. When the General Counsel first sought to adduce evi- dence to show that Respondent had unlawfully granted a wage increase within the 10(b) period, I pointedly in- formed counsel for the General Counsel that they should move to amend the complaint if they felt any Respond- ent conduct other than that alleged in the complaint vio- lated the Act. The General Counsel failed to amend the complaint to allege that Respondent violated the Act through the actions of Wyatt descr ibed supra. Respond- ent did not call Wyatt as a witness to rebut the threat of discharge attributed to him by employee Thrasher. While Wyatt's conduct is definitely, sufficiently related to unfair labor practices alleged in the complaint, I con- clude Respondent was not placed on notice that the General Counsel claimed such conduct violated the Act, and it was not given sufficient opportunity to defend against the claim made for the first time in the General Counsel's brief. Accordingly, I conclude the matter was not fully litigated and refrain from deciding the issue. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III above, occurring in connection with its operations de- scribed above, have a close, intimate, and substantial re- lationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce wihin the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. All production and maintenance employees includ- ing truckdrivers employed by Respondent at its Lawren- ceville, Georgia plant, excluding all office clerical em- ployees, watchmen, guards, professional employees and supervisors as defined in the Act, constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times relevant herein, the Union has been, and is now, the exclusive representative for the purpose of collective bargaining of the employees in the above-de- scribed bargaining unit. 5. By engaging in the conduct described in section III above, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 6. Respondent has not engaged in unfair labor prac- tices alleged herein except to the extent herein specifical- ly found. 12 See Brennan's Cadillac, supra at 226 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, I shall order that it cease and desist therefrom. Having found that Respondent unlawfully withdrew recognition from the Union on November 20, 1978, and refused to bargain in good faith with it thereafter as the exclusive representative of the employees in the appro- priate unit described herein, I shall order it to recognize and, on request, bargain with the Union as the exclusive representative of the employees in the appropriate unit and, if an understanding is reached, embody such under- standing in a signed agreement. Because of the character and scope of the unfair labor practices found herein, I find a broad cease-and-desist Order is necessary. In addition, Respondent will be or- dered to post an appropriate notice encompassing all vio- lations committed. [Recommended Order omitted from publication.] Nancy E. Printikin, Esq., and Paul K. Tamaroff Esq., for the General Counsel. Townsell G. Marshall Jr., Esq. (Constangy, Brooks & Smith), of Atlanta, Georgia, for the Respondent. Romeo C. Fouch, Secretary-Treasurer, of Atlanta, Geor- gia, for Charging Party Local. W. W. Hudson, International Rep., of Atlanta, Georgia, for Charging Party International. SUPPLEMENTAL DECISION DONALD R. HOLLEY, Administrative Law Judge. The original decision in this proceeding was issued on Sep- tember 11, 1980. Thereafter, by order remanding pro- ceeding to administrative law judge dated June 20, 1984, the Board remanded this proceeding to me "for the pur- pose of resolving the credibility issue raised by the testi- mony of Kenneth Broughton, Bobby Davis, Earnest Damons, Larry Mooney, Ralph Freeman, Clinton Damons, and Roe Christopher Callaway with regard to circumstances and representations made during the au- thorization-card solicitations, for a finding as to whether the Union represented an uncoerced majority of unit em- ployees at the time the Respondent recognized the Union; and for a conclusion as to the effect of these find- ings on the remaining issue in this case." The described issues are discussed individually below A. The Credibility Issues The record reveals that employees Freeman, Callaway, and Leroy Givens met with Union Represent- ative W. W. Hudson at Givens' home on March 13, 1978,1 and the three named employees executed union- authorization cards while there. Thereafter, on March 14 and 15, Freeman, usually accompanied by Callaway, so- licited for the Union at Respondent's place of business. During the hearing held in this proceeding, the General Counsel placed 19 authorization cards purportedly exe- cuted by Respondent's employees in evidence as General ' All dates herein are 1978, unless otherwise indicated Counsel's Exhibits 3 through 21. Respondent attacks the validity of five of the cards, those of Broughton, Davis, Earnest Damons, Larry Mooney, and Clinton Damons, claiming that Freeman induced such employees to sign cards by falsely informing them they should sign because everyone else had already signed. At the outset, I note that Respondent terminated Free- men on March 18 and he has been employed elsewhere since then. He appeared at the hearing on October 22, 1979, pursuant to a subpoena issued by the General Counsel, and, when called as a witness, immediately indi- cated Respondent had settled with him and he had no desire to participate in the proceeding. Freeman's situa- tion, attitude, and lack of any direct interest in the out- come of this case cause me to attach significant weight to his testimony. On the other hand, events reflected by the record cause me to view the testimony given by em- ployees called by Respondent as witnesses skeptically. Thus, it is abundantly clear that Respondent retained in its employ on March 18 only those employees who con- vinced Johnson, during the Saturday individual inter- views, that they did not favor unionization. Moreover, the circumstances surrounding employee Sailors' circula- tion of an antiunion petition, and his success in causing 26 employees to protest at the November 16 negotiation session create a strong suspicion that Respondent may have been guiding Sailors in his activities.2 With the above observations in mind, I summarize and evaluate the solicitation related testimony of the wit- nesses below. Kenneth Broughton On direct examination, Broughton testified that when Freeman solicited him he said "that everybody was sign- ing the cards and I was the only one who hadn't signed it." A short time later he said Freeman's statement was "most everybody had signed the card, and that I was about the only one that didn't sign it." Thereafter during cross-examination, Broughton indicated Freeman solicit- ed him and two or three other guys at the same time tell- ing them "about everybody had signed it, and we were about the only ones who didn't sign it." Freeman testified he solicited Broughton, John Thrasher, and Hilton Kemp inside the building on March 14 and encouraged them to sign cards by telling them the purpose of signing the cards was to get more money. He specifically denied, in response to a question posed by Respondent's counsel, that he told Broughton, Thrasher, or Kemp that they were the only ones who had not signed cards. I credit Freeman's version of the solicitation conversa- tion under discussion rather than any of the three ver- sions given by Broughton. In addition to the fact that Freeman was more impressive and forthright when testi- 2 That suspicion is created by Sailors' indication that he did not know what caused him and his wife, who allegedly helped him prepare the pe- tition, to state in the petition that employees were tricked into signing, the fact that Sailors apparently was permitted to leave work to attend negotiating sessions although he was not on the Union's bargaining team, and the fact that the 26 employees supposedly left work on November 16 without any supervisor's knowledge or permission TRI-STATE CULVERT MFG. fying, I am persuaded to credit Freeman rather than Broughton because Thrasher and Kemp, who were not shown to be unavailable, were not called as witnesses to corroborate and/or refute Broughton's testimony. Bobby Davis Freeman solicited Davis on March 14 and the latter signed an authorization card that day. Davis described the solicitation conversation as follows (Tr. 296): Well it was-now me and another employee was standing up there talking, by the name of Larry Mooney, and he approached both of us. He said that everybody had signed the card and that if we signed it we could get a union in and have more money and make better benefits, so Larry and I signed it. Freeman testified he gave Davis a card in Respond- ent's yard on March 14 telling him if he signed they would probably get better wages. Freeman indicated that no other employees were present when he solicited Davis. He expressly denied during cross-examination that he solicited Davis when he was with another employee and told Davis that only he and one other employee had not signed a card and that everybody else had. I credit Freeman's assertion that he solicited Davis in the yard when he was alone and credit his version of the solicitation conversation. In addition to the fact that I found Freeman to be the more impressive witness, I note that Mooney, who was not shown to be unavailable, was not called by Respondent to corroborate Davis' testimo- ny. Finally, a factor in my decision to credit Freeman is my discovery that the authorization card signed by Mooney is dated March 15 rather than March 14 (see G.C. Exh. 6). Earnest Damons Earnest Damons testified that he is a forklift operator. He indicated that Freeman approached him at an unstat- ed time in March 1978 and asked him to sign an authori- zation card. Damons claims he refused to sign at that time. He testified that he was later approached by Bobby Davis, who presented him with a card stating "We all done signed. You might as well go on and sign too." Ac- cording to Damons, he signed the card Davis gave him. Freeman testified he asked Earnest Damons to sign a card on March 14 while the employee was on a forklift in the yard. He claims Damons looked at the card and signed it in his presence. During cross-examination, in re- sponse to a question put to him by Respondent's counsel, Freeman denied he told Damons when he solicited him that almost all the employees had signed cards except for him. Significantly, although Davis was called as a witness by Respondent, Respondent's counsel made no attempt to corroborate Earnest Damons' contention that Davis solicited him as described above. This, coupled with the fact that Freeman was the more impressive, and in my view the more impartial witness, cause me to credit Freeman's testimony rather than Earnest Damons' testi- mony. 753 Clinton Damons Clinton Damons testified on direct examination that he was employed by Respondent in 1969 or 1970. He indi- cated that in 1978 he was a forklift operator. Asked by Respondent's counsel whether Freeman approached him about signing a card, he stated Freeman approached him about signing one, but claimed he did not put his signa- ture on it; that Freeman put it on it. Damons then ex- plained he did not have time to do it because he was running behind on his job and he told Freeman "if my name would get on there, he would have to put it on there himself." During cross-examination, the General Counsel learned that Clinton Damons had given counsel for Re- spondent a written statement. When the General Counsel requested the statement it was given to him. The docu- ment, which was placed in evidence as General Coun- sel's Exhibit 78, states at paragraph 6: 6. When I was approached about signing a union card, I was told that all the employees of the plant had signed a card but me. Since I didn't really un- derstand what it was all about, they just said that I was supposed to sign and that all the people had signed it. Then I come to find out that not all the people had signed. In paragraph 7 of the above-described statement, the wit- ness indicated he had not signed a union card. Freeman testified that Clinton Damons was present when he solicited his brother Earnest to sign a card, and he claims Clinton observed Earnest sign a card. He fur- ther testified that he approached Clinton Damons about signing a card inside the building and claims Clinton signed a card after looking at it and then gave it to him. During cross-examination, Respondent's counsel asked Freeman if Clinton Damons told him in the plant when he approached him about signing a card that he would not sign a card, and if his signature was going to get placed on that card, someone else was going to have to put it there. Freeman answered "No, he did not." Free- man then stated Damons signed the card in his presence. When counsel for Respondent asked if he was sure about that, Freeman stated, "Yes, I'm positive." Clinton Damons testified without contradiction that, at some point, Johnson commented to him, "I hear they're trying to get a Union in . . . . Did you sign a card?" Damons claims he said no. Thereafter, at a time he places as being 2 months before he signed a statement for Respondent's attorney on May 8, 1979, Damons claims Johnson told him "Your name is on a card." Damons testified he replied, "How did it get there? Mr. Freeman had to put it there." Near the conclusion of his cross-examination of Clin- ton Damons, the General Counsel caused Damons to write his signature and address on a piece of paper placed in evidence as General Counsel's Exhibit 79. Counsel then requested that I view the signature on C. Damons' card (G.C. Exh. 10), Damons signature on the statement (G.C. Exh. 78), and compare them as well as the written address on the card with the specimen signa- 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture. I indicated at the hearing, and again indicate at this time, that I am not an expert in handwriting. I am unable to determine whether the signature on the card was placed there by Clinton Damons. The General Counsel was invited to call a handwriting expert to establish that the signature on the card was Clinton Damons' signature but failed to pursue the course. In my original decision (fn. 9) I found that Clinton Damon authorized Freeman and Callaway to sign a card for him on March 14. Having carefully considered the totality of Clinton Damons' testimony, which I frankly considered to be insignificant when the original decision was drafted, I remain convinced that he author- ized Freeman to sign the card for him on March 14 be- cause he was too busy to do it himself. With respect to Damon' indication in the statement he gave to Respond- ent's counsel on May 8, 1979, that Freeman induced him to sign a card by telling him all the employees had signed, I note that although Respondent 's counsel asked Freeman during cross-examination whether he had sought to induce Earnest Damons, Larry Mooney, Bobby Davis, and Kenneth Broughton to sign cards by telling them everyone else had signed , he did not ask whether he had solicited Clinton Damons in that manner. This, coupled with Respondent's counsel's fail- ure to attempt to adduce such testimony during his direct examination of Clinton Damons, Freeman's denial that he utilized such a technique to induce E. Damons, Mooney, Davis, and Broughton to sign cards, and the pressure placed on Clinton Damons by Johnson, cause me to conclude that Damons told Respondent's attorney what he thought Johnson wanted him to say. In sum, having credited Freeman's claim that he did not induce employees to sign union-authorization cards by telling them everyone else had already signed, I find that the cards executed by Broughton, Davis, Larry Mooney, Earnest Damons , and Clinton Damons are valid cards and should be included in any account to de- termine whether the Union represented a majority of the unit employees. Assuming, arguendo, that the above-named employees were induced to sign cards by the type of false misrepre. sentation described, I would nevertheless reach the same conclusion as, under current Board law, such misrepre- sentations are deemed to constitute mere "puffing" and/or sales talk that should be recognized by employees as such. See Marie Phillips, Inc., 178 NLRB 340 (1969), affd. sub nom. Ladies Garment Workers Local 153 v. NLRB, 443 F.2d 667, 669 (D.C. Cir. 1970); Ed Chandler Ford, 254 NLRB 851-865 (1981). B. The Majority Issue As noted in the original decision (sec. III, D) Re- spondent sent the Union a list of the names and addresses of employees in the bargaining unit on August 14.3 While there are 35 names on the list , it is undisputed that three of the named employees (E. Chris Damons, Jeffrey Leon Sailors, and Michael J. Wayt) were part-time em- 3 G C Exh 77 The list was sent in response to the Union's August 9 letter requesting the names and addresses of unit employees as of that date. ployees who should be excluded from the unit. Accord- ingly, I find there were 32 employees in the bargaining unit at the time Respondent recognized the Union. As also noted in the original decision (see sec. III, B, par. 4), that employees Ralph Freeman, Russell Heath, and John Dean were terminated by Respondent during the period March 18-20. Since Section 10(b) of the Act precluded the General Counsel from establishing that the three named employees were terminated in violation of Section 8(a)(1) and (3) of the Act, I find that as of August 9, 1978, the Union possessed, at maximum, 16 valid authori- zation cards. It is obvious, and I find, that the Union did not represent a majority of the employees in the appro- priate bargaining unit when Respondent recognized it on August 9, 1978. C. Conclusions Citing Ladies Garment Workers v. NLRB, 366 U.S. 731 (1961), Respondent contends in exceptions filed with the Board that it can find no 8(a)(5) violation in the case sub judice because the Union did not enjoy majority status when it recognized it on August 9, 1978. For the reasons set forth below, I agree. In a number of cases, the Board has indicated that an employer that has voluntarily recognized a union as the bargaining representative of its employees can withdraw recognition from such union if it presents affirmative evi- dence to show that, at the time such recognition was voluntarily granted, the union lacked majority support of the employees. Fertilizer Co. of Texas, 254 NLRB 1382 fn. 2 (1981); Moisi & Son Trucking, 197 NLRB 198 fn. 2 (1972); and E. L. Rice & Co., 213 NLRB 746 (1974). Having found, supra, that affirmative evidence presented in this case reveals the Union did not enjoy majority status on August 9, 1978, it would appear that Respond- ent was lawfully entitled to withdraw recognition from the Union on November 20, 1978, absent evidence that would reveal the Union obtained majority status between August 9 and November 20, 1978.4 No such evidence was offered during the hearing. Accordingly, I find that Respondent was lawfully entitled at all times subsequent to August 9, 1978, to withdraw recognition from the Union. Having concluded the Union did not represent a majority of Respondent's employees when Respondent extended recognition to it on August 9, I now find that Respondent had a lawful reason for polling its employees on November 20-to ascertain whether the Union had obtained majority status between August 9 and the date of the poll. Since the record reveals the poll was con- ducted in accordance with the Strucknes criteria in other respects, I find that Respondent did not violate the Act by conducting the poll. Moreover , since a clear majority of the employees who participated in the poll indicate they did not desire to be represented by the Union, I find that Respondent did not violate Section 8(a)(5) by with- 4 Since recognition was extended here as a result of a private agree- ment, which caused the Union to withdraw a charge it had filed against Respondent, I conclude that recognition was voluntarily extended by Re- spondent See Fertilizer Co of Texas, supra Arguably, a different conclu- sion should be reached if the Board is a party to such a settlement agree- ment TRI-STATE CULVERT MFG. 755 drawing recognition from the Union on November 20, On these findings of fact and conclusions of law and 1978. It naturally follows, and I find, that Respondent on the entire record, I issue the following recommend- was not obligated to bargain with the Union with respect ed5 to the 25-cent-wage increase it gave to employees just before Christmas 1978. Consequently, it did not violate ORDER the Act by granting such wage increase without notifica- The complaint is dismissed in its entirety. tion to and bargaining with the Union. 5 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses