Central Soya of Canton, Inc.

National Labor Relations Board - Board Decisions

Jan 6, 1970

180 N.L.R.B. 546 (N.L.R.B. 1970)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Soya of Canton , Inc. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Case 10-CA-7360
January 6, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 3, 1969, Trial Examiner Josephine H.
Klein issued her Decision in the above-entitled
matter, finding that Respondent had engaged in and
was engaging in unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint, and recommended that
such allegations be dismissed. Thereafter,
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case,' and hereby adopts the
findings and recommendations of the Trial
Examiner with the modifications described below.
'On July 31, 1969, after the case had been referred to the Board,
Respondent filed a motion to reopen the record to adduce evidence that
Respondent, on June 27 , 1969, had rescinded the no-solicitation rule found
unlawful by the Trial Examiner and had adopted and posted a new set of
work rules , including a revised Rule 22, applicable to oral solicitation or
distribution of literature for any purpose whatever , which prohibited oral
solicitation only during working time and the distribution of literature only
during working time and in the working area of the plant The motion was
supported by an affidavit of Respondent ' s general manager and
accompanied by a copy of the new rules On October 1, 1969, the Board
issued to the parties a notice to show cause why Respondent 's motion
should not be adopted and these documents received in evidence On
October 8, counsel for the General Counsel filed a response The General
Counsel did not question the accuracy of the facts set out in the affidavit
attached to Respondent ' s motion But he opposed Respondent's motion
upon the ground that the adoption of its new Rule 22 occurred after
issuance of the Trail Examiner's Decision herein and could not therefore
affect the violation findings based upon the preexisting rule While we
agree with this position , we nevertheless find, for reasons hereafter set
forth , that Respondent ' s adoption of its new Rule 22 is relevant to the
additional determination we must here make as to whether or not a
bargaining order should issue in this case. Having duly considered the
matter , and concluded that no sufficient cause has been shown why such
action should not be taken , we hereby grant Respondent ' s motion to
reopen the record to receive the evidence and the documents appended
thereto which we consider for the truth thereof
1. We find in agreement with the Trial Examiner
that Respondent violated Section 8(a)(1) of the Act
by prohibiting employees from wearing Union
badges on company time and property and by
promulgating, on September 5, 1968, and thereafter
maintaining, a rule prohibiting solicitation and
distribution of any kind on its premises without
prior approval of management.
2. We also find, in agreement with the Trial
Examiner, and for the reasons stated in her
Decision, that Respondent violated Section 8(a)(3)
and (1) of the Act, by temporarily laying off or
suspending nine employees on April 23, 1968,
because they refused to remove their Union badges.
3. We do not adopt the Trial Examiner's finding
that Respondent further violated Section 8(a)(1) of
the Act by Supervisor Walker's admonition to
employee Wesley Williams on April 23, 1968, not to
distribute union badges or union cards on company
time, but to confine such activities to his own time.
The Trial Examiner rested her violation finding on
the ground that the admonition was confined to
distribution of union material and that as of that
date Respondent did not have in effect any general
or published no-solicitation or no-distribution rule.
The Trial Examiner therefore inferred that Walker's
oral prohibition of the use of company time for
distribution of union material was discriminatory in
purpose and effect. We do not agree. Walker's
directive to Williams was presumptively valid. And,
unlike the situation in the cases cited by the Trial
Examiner, the presumption of validity was not
rebutted by any persuasive showing that Respondent
had theretofore permitted employee use of working
time for the distribution of any other kind of
literature or material. In these circumstances, we
cannot infer that Walker's admonition to Williams
reflected a disparate treatment of employees
engaged in union activity.
4. Notwithstanding the Union's loss of the
election on May 3, 1968, the Trial Examiner found
that Respondent violated Section 8(a)(5) by reason
of its earlier refusal to bargain with the Union as
the card-designated representative of a majority of
its employees, and on that basis concluded that a
remedial bargaining order should issue. The Trial
Examiner premised her finding of a violation
requiring such remedial relief on the theory that
Respondent's refusal to bargain was not motivated
by a good-faith doubt of the Union's majority, as
evidenced in substantial part by its subsequent
unfair labor practices as found by her.
On June 16, 1969, however, subsequent to the
Trial Examiner's Decision, the Supreme Court
issued its decision in N.L.R.B. v. Gissel Packing
Company, 395 U.S. 575, establishing certain
guidelines relating to the proper construction of
Section 8(a)(5) and (1) of the Act and the issuance
of bargaining orders thereunder in situations of the
kind before us here. Insofar as is relevant here, the
Supreme Court, in stating the general principles
180 NLRB No. 86
CENTRAL SOYA OF CANTON, INC.
applicable to the issuance of bargaining orders,
agreed that the Board has authority to issue a
bargaining order to redress unfair labor practices
"so coercive that , even in the absence of a Section
8(aXS) violation , a bargaining order would have
been necessary to repair the unlawful effect of those
[unfair labor practices]." 395 U.S. at p. 615.
Additionally, the Court approved the Board's
authority to issue a bargaining order " . . . in less
extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency
to undermine majority strength and impede the
election processes." Id. In the latter situation, the
Board is to examine the nature and extent of the
employer's unlawful conduct and ascertain whether
use of traditional remedies would ensure a fair
election. The Court said (1d.):
In fashioning a remedy in the exercise of its
discretion, the Board can properly take into
consideration the extensiveness of an employer's
unfair practices in terms of their past effect on
election conditions and the likelihood of their
recurrence in the future . If the Board finds that
the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though
present , is slight and that employee sentiment
once expressed through cards would, on balance,
be better protected by a bargaining order, then
such an order should issue ....
Finally, the Court emphasized that "under the
Board's remedial power there is still a third category
of minor or less extensive unfair labor practices,
which because of their minimal impact on the
election machinery will not sustain a bargaining
order." 395 U.S. at p. 614.
Applying these general principles here , we do not
believe that a bargaining order is warranted on the
record in this case.
As stated by the Trial Examiner, Respondent
committed no "broad scale unfair labor practices."
Its only unfair labor practices prior to the election
related to the 1-day prohibition of union badges -
i.e., the instruction not to wear union badges while
working, given to second - shift employees on April
23, 1968 (10 days before the election); the
temporary suspension or layoff of nine employees
who refused to comply with that instruction; and the
withholding from these nine employees until after
the election their pay for the 4 hours work they had
lost while suspended. The coercive impact of this
unlawful conduct was, however , substantially
minimized on April 24 when Respondent expressly
withdrew its objection to the wearing of union
badges and permitted the nine employees to resume
work. And whatever vestiges of coercion remained
were erased when the suspended employees were
paid for their time lost immediately after they had
voted. Moreover, Respondent's voluntary corrective
action gave reasonable assurance that any
recurrence of such unfair labor practices was
547
unlikely. Thus, as the matter stood at the time the
General Counsel issued his complaint herein
(thereby blocking the rerun election that had been
directed by the Board)2 there was, we find, no
substantial basis for belief that a rerun election
might not provide a fair test of employee desires.
Nor do subsequent developments show that the
situation now is different. It is true that after the
issuance of the complaint Respondent did commit
another unfair labor practice - its only other - by
adopting, on September 5, 1968, an unlawfully
broad no-solicitation and no-distribution rule. But
that rule has since been rescinded and its
re-establishment, as well as any renewal of the other
unfair labor practices found, will be precluded by
the remedial order we enter below.
On the facts of this case - considering
particularly (1) the relatively minor nature and
limited extent of Respondent's unfair labor practices
in terms of their effect on election processes; (2) the
erasure of their coercive effects and the unlikelihood
of their recurrence; and (3) the absence of any
sufficient indication that a coercion-free rerun
election could not have been timely held under
conditions similar to those which would have existed
in the absence of Respondent's unfair labor
practices - we are unable, on balance, to conclude,
that, because of Respondent's unfair labor practices,
a card count would provide a more reliable measure
of employee sentiment, and would better protect
employee rights, than would a rerun election. We
therefore find that a bargaining order is not
justified. Accordingly, we shall dismiss the 8(a)(5)
allegations of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent Central
Soya of Canton, Inc., Canton, Georgia, its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Delete subparagraphs (a) and (c) of paragraph
1 of the Trial Examiner's Recommended Order, and
renumber subparagraphs (b) and (d) as (a) and (c),
respectively.
2. Insert the following as subparagraph (b) of
paragraph 1:
"Promulgating or maintaining in effect any rule
which prohibits its employees from engaging in
solicitation of union membership on its property
during their nonworking time or which prohibits its
employees when they are on nonworking time from
distributing handbills or similar literature on behalf
of any labor organization in nonworking areas of its
'Case lO-RC-7336, not published in the Board 's printed volumes.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property."
3. Delete subparagraphs (a),(b), and (d) of
paragraph 2 of the Trial Examiner's Recommended
Order, and renumber subparagraphs (c) and (e) as
subparagraphs (b) and (c), respectively.
4. Insert the following as subparagraph (a) of
paragraph 2:
"Rescind and annul any rule which prohibits
employees from engaging in solicitation of union
membership on company property during their
nonworking time or which prohibits employees when
they are on nonworking time from distributing
handbills or similar literature on behalf of any labor
organization in nonworking areas on company
property."
5. Substitute "Judgment" for "Decree" wherever
it occurs in footnote 86 of the Trial Examiner's
Recommended Order.
6. Delete the last three paragraphs in the
Appendix and add the following as the final
paragraph:
WE WILL NOT promulgate or maintain any rule
which prohibits employees from engaging in
solicitation of union membership on company
property during their nonworking time, or which
prohibits employees when they are on nonworking
time from distributing handbills or similar
literature on behalf of any labor organization in
nonworking areas on company property.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H KLEIN, Trial Examiner : This proceeding
was heard in Atlanta and Canton , Georgia, on October 30
and 31 , November 1, and December 16 through 20, 1968,'
inclusive, on a complaint issued against Central Soya of
Canton , Inc., on August 28, pursuant to a charge filed by
Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, on May 13 and amended on
May 24 A motion to amend the complaint was made by
the General Counsel and granted by the Examiner at the
hearing on October 30. A further motion to amend the
complaint was made by the General Counsel on
November I and granted by written order of the
Examiner issued on November 27. At the hearing all
parties appeared through counsel and were afforded full
opportunity to be heard and to examine and
cross-examine witnesses . Briefs have since been filed by
the General Counsel and Respondent.
Upon the entire record ,' consideration of the briefs, and
observation of the witnesses , the Examiner makes the
following:
FINDINGS AND CONCLUSIONS
1. PRELIMINARY FINDINGS
A. Respondent, Central Soya of Canton, Inc., an
Indiana corporation with its principal office and place of
business in Canton, Georgia, is engaged in the processing
and sales of poultry products . During the past calendar
year, which period is representative , Respondent sold and
shipped poultry products valued in excess of $50,000 from
its Canton , Georgia, plant directly to points outside
Georgia.
Respondent is, and at all material times has been, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.3
B. The Union , Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
11. THE UNFAIR LABOR PRACTICES
A. Background, Chronology, and Issues
Under date of March 7, Thomas N. Scarborough,
business agent of the Union, wrote to Frank X. Maness,
Respondent's general manager, claiming that the Union
represented a majority of Respondent's production and
maintenance employees, offering to submit the Union
authorization cards to a check by an independent third
party, and requesting that Respondent commence
negotiations with the Union. On March 14 the Union filed
a representation with the Board's Regional Office. Not
having heard from Respondent, Scarborough again wrote
to Maness on April 2. In this letter Scarborough referred
to his earlier letter and enclosed a list of the employees at
Respondent's plant who the Union claimed were Union
members. Respondent did not reply to the Union's second
letter. However, on April 11, Respondent and the Union
entered a stipulation for certification upon consent
election, which stipulation was approved by the Regional
Director.
The Union lost the election, which was held on May 3.
On the Union's objections, the Regional Director set the
election aside. On August 16, on Respondent's exceptions,
the Board affirmed the Regional Director and directed a
second election. No election has been held pending the
present proceeding, in which as previously stated, the
original charge was filed on May 13 and the complaint
was issued on August 28
The original complaint alleged that during the
preelection campaign Respondent committed violations of
Section 8(1) and (3); and that "[o]n or about March 7,
1968, and at all times thereafter, including specifically on
or about April 2, 1968," Respondent refused to bargain
with the Union, in contravention of Section 8(a)(5). As set
forth below (Part II C I a), the General Counsel adopted
as the crucial date March 18, the date on which
Respondent maintains it first received the union's demand.
In the course of the hearing the complaint was also
amended to allege violation of Sections 8(a)(1) by
maintenance of an invalid no-solicitation rule.
In addition to a conventional cease-and-desist and
notice-posting remedial order, the General Counsel seeks
a bargaining order under the principles of Joy Silk Mills,
Inc 85 NLRB 1263, enfd. 185 F.2d 732 (C.A.D.C.), and
Bernel Foam Products Co , 146 NLRB 1277, as recently
reaffirmed in Levi Strauss & Co., 172 NLRB No. 57, and
McEwen Mfg Co, 172 NLRB No 99.
Respondent denies the commission of any unfair labor
practices. It contends further, however, that even if the
'Unless otherwise stated , all dates herein are in 1968
'The General Counsel's unopposed motion to correct the transcript is
hereby granted
'National Labor Relations Act, as amended (61 Stat . 136, 73 Stat. 519,
29USC Sec . 151,etseq )
CENTRAL SOYA OF CANTON, INC.
commission of unfair labor practices has been established,
under the principles of Board decisions like Aaron Bros.
Co, 158 NLRB 1077, Irving Air Chute Co., 149 NLRB
627, and Laura Modes Co., 144 NLRB 1592, a
bargaining order would be inappropriate.
B. Section 8(a)(1) and (3)
1. The Union badge incident
On April 23 about 2:45 p.m., dust before the start of the
second shift, supervisor Jim Holloway told employees who
were wearing Union badges,' about 20 in number, to
remove them. All the employees complied with
Holloway's order. After going to work and having been at
work for some time, about 15 of the employees put their
badges on again. At this point, Lee Phillips, second shift
supervisor of the eviscerating department, ordered each of
the offending employees to remove his badge. Nine
employees refused to do so, whereupon they were ordered
to leave the production line.'
Phillips informed the nine recalcitrant employees that
they could return to work if they removed their Union
badges; otherwise they would have to clock out and go
home. The nine employees took neither course, remaining,
with their badges on, in the clockroom, which is just
outside the production area. Phillips thereupon clocked
them out. Meanwhile, Phillips had telephoned Charles
Chambers, production manager, who then came to the
plant, arriving at about 7:20.1 Chambers, who had in the
meantime conferred with Maness by telephone, told the
employees, as had Phillips, that they could return to work
if they removed their Union badges. When they refused,
Chambers ordered them to leave the Company's premises.
Pursuant to Maness' instructions, he told the employees to
report to the personnel office before returning to work the
next day.
After being informed of the incident by Chambers,
Maness telephoned Robert Chappuis, personnel director
of Respondent's parent company, in Fort Wayne, Indiana,
who was in overall charge of labor relations at all 79 or
80 affiliated companies.' Sometime the next forenoon,
after having consulted counsel, Chappuis instructed
Maness not to interfere further with employees' wearing
of Union badges. This instruction was transmitted to
James Amidon, Respondent's personnel manager, and to
the supervisors. In the same conversation, Chappuis told
Maness to pay the employees for the time lost. This
information, however, Maness did not communicate to
Amidon or to anybody else.
When the nine clocked-out employees reported to the
personnel office before the beginning of the second shift of
the next day, April 24, Amidon told them to go to work.
'Responder refers to the insignia in question as "badges" because they
were about 2 1/4" in diameter rather than approximately 1" which
Respondent apparently believes is the maximum size at which a Union pin
can qualify as a "Union button " The Examiner here adopts Respondent's
terminology without any connotation of legal or aesthetic judgment.
'One or two of the employees were not ordered by Phillips directly to
leave the line . Employee Eloise Foster, one of those involved , asked her
floor lady if she had to clock out for refusal to remove her badge The
floor lady told her to report to Phillips to find out. Foster left the line,
with her floor lady replacing her, and reported to Phillips, who was then
outside the production area with the other employees who refused to
remove their badges.
'Seven of the nine employees left the line sometime between 5 30 and
6.00 p m. The remaining two left at about 6 : 50 p.m.
'Respondent is one of about 80 fully owned subsidiaries of Central Soya,
a holding company with its office in Fort Wayne, Indiana.
549
When asked if they could wear their Union badges,
Amidon replied, "I don't care." The nine employees,
wearing their Union badges, began work a short while
after the shift had started.
Employee Glinda Price testified that after finishing
work on May l she was sitting in the clockroom talking
to a fellow employee. They were both wearing Union
badges Supervisor Lee Phillips came in and said, "All
Union buttons outside." Price made no response,
whereupon Phillips asked if she was hard of hearing and
repeated: "All union buttons outside." Price made no
response, whereupon Phillips asked if she was hard of
hearing and repeated: "All union buttons outside."
According to Price, she retorted that Phillips "must be
hard of hearing because Frank Maness told us we could
wear them." That was the end of the incident, Phillips
leaving and Price remaining where she was, still with her
badge on. Phillips denied this testimony. For reasons set
forth below the Examiner finds Phillips not to be a
credible witness and credits Price.
Except for the Phillips-Price incident of May 1,
Respondent's management and supervisory personnel
made no attempt to prevent or interfere with the
employees' wearing Union badges on and after April 24.
Some employees, including the nine here involved, did
wear Union badges through the date of the election.
However, there was considerable conflict of testimony as
to whether the number of badge wearers after April 23
was greater than, less than or equal to that before the
April 23 incident. There was credited evidence that at
least one employee wore a badge on her clothing under
her uniform-apron so that the button would not be visible
while she was actually working. There were other
suggestions in the record that employees felt restrained
and somewhat fearful of discussing the badge incident or
other Union matters openly at the plant.
None of the nine employees was ever told whether they
would be paid for the hours (around 4 or 5) they lost by
being clocked out. Between April 23 and May 3 there was
considerable speculation among the employees about this
question. The consensus of employee opinion appears to
have been that there would be no compensation
After one of two employee meetings Maness held, a
group of female employees approached him and one of
them, Eloise Foster, inquired whether the nine employees
would be paid for their lost time. Maness replied that he
did not know because no decision had as yet been made.'
Friday, May 3, was the day on which the employees
were paid for the week of April 22 through 27. May 3
also was the day of the Board-conducted election. It is the
Company's general practice to make paychecks available
to the second shift employees on the morning of payday.
For the nine employees here involved, the regular
paychecks, made available in the morning, before the
Board election, reflected a deduction for the hours lost on
April 23. Later in the day, after the election polls had
closed, these nine employees, without any advance notice,
were given supplemental checks covering compensation for
the lost hours.
Maness testified that every Monday Respondent sends
to its bank in Atlanta a payroll compiled from the actual
time records of the previous week. The bank then prepares
'Maness indicated that the inquiry was made after the meeting of April
27. In this he appears to have been in error, since the meeting of April 27,
a Saturday, was for the maintenance employees , none of whom apparently
were women The meeting of production employees was held on
Wednesday, May I
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paychecks, which it delivers to Respondent for distribution
on Friday. Whenever a need for supplemental paychecks
arises after the payroll is sent to the bank on Monday,
they are issued by the Company, through its accounting
department, which is located on the plant premises.
According to Maness, the decision to pay the nine
employees for their lost hours was not made until May 2
or 3; he was sure "it was after May 1st." The decision
was communicated only to Amidon and the person who
actually prepared the checks. However, Chappuis,
Maness ' superior in personnel matters, testified that on
April 24, when he issued instructions that employees were
thenceforth to be permitted to wear Union badges, he
simultaneously instructed Maness to pay the nine
employees for their lost time. Had Maness followed these
instructions , the payment could have been included in the
employees' regular pay checks, since the payroll would not
have been sent to the bank for the issuance of checks until
April 29.
On all the evidence, the Examiner discredits Maness'
testimony that the decision to compensate the nine
employees was not reached until May 2 or 3, and finds
that the decision was made on April 24.
Referring to the Union badge incident, the complaint,
as amended at the hearing , alleges that Respondent
violated Section 8(a)(1) when Chambers, Phillips and
Holloway "threatened its employees with discharge if they
did not remove union buttons from their clothing" and
violated Section 8(a)(3) by "discharging" the nine
employees "for the remainder of their shift."
Respondent seeks to justify the prohibition of the
wearing of Union badges on the ground, as stated by
Maness, that they would be "conversation pieces," leading
to talk among the employees which would interfere with
production.' In this connection, Respondent's brief says
that Maness' fear of disruption of production "was amply
borne out . . . by Phillips' testimony that the wearing of
badges on April 23 actually had a disruptive effect on the
employees which impaired production." However, Phillips
testified that when he ordered removal of the badges
"there was slight disruption of production activity." In
answer to a question' by the Examiner as to the extent of
the disruption, Phillips said:
I really can't be too specific except to say that
people were talking considerably among themselves and
in groups, more so than they normally would. And that
this, in turn, caused the disruption in production. It's
not really apparent, but the quality of the product
probably went down as a result, because people, of
course, if you don't pay attention to your job, you're
not going to do a good job, you're going to do a lousy
job.
The Examiner's question had been prompted by Phillips'
positive testimony that the clocking out had necessitated a
50% reduction in production because the obstinate badge
wearers were experienced, key employees without whom
production was virtually impossible.
Phillips did not attribute to Maness any concern about
production as the reason for the prohibition. Phillips
testified as follows concerning the supervisors ' meeting at
which Maness announced the restriction:
Q. Can you recall what Mr. Maness said about the
union badges, why he was perturbed about it, or how it
'Maness found the badges aesthetically offensive He testified "I was
aware that union buttons , per se. were permitted to be worn by employees
but these monstrosities don't anywhere measure up , in my mind , to being
anything other than a campaign button or advertisement."
happened to just come to his attention? Did he say
anything about it?
A. Well, nothing other than he thought that this was
illegal, I suppose. I mean, according to his
interpretation of the rules.
Q. The plant rules? .... Or the Government' s rules?
A. No, I think it was - there was some mention -
this is hard for me to remember exactly what was said.
There was some mention of labor law and I understood
it to mean that it was illegal for them to campaign
while on the company time.
Chappuis, Maness' superior, failed to indicate that any
operational problems were involved. He testified that
Maness telephoned him at about 7 or 7:30 p.m., February
23. Chappuis' testimony continued:
... he told me that there were some people in the plant
on the production line who were wearing union badges.
I asked him to describe the union badges, what did they
say, what were they, and he described them to me and
suggested that they had been instructed to take these
badges off, and the employees apparently would not do
it. So he took them off the line and I told him at the
time that I wanted to look into the matter further and
that I would contact him probably the next day. And
actually, what I wanted to do was to check this out with
our legal counsel in Chicago . . . I wasn't able to reach
him until the next morning, however, so I did call
Frank early in the morning, the next morning and
instructed him to permit the people to wear the badges
if they wanted to.
Chappuis' instructions thus were given to Maness on the
basis of legal rather than operational considerations.10
Maness made it clear that his primary consideration
was a desire to prevent "campaigning," and that the
prohibition itself, rather than the wearing of the badges,
was disruptive. In connection with the adoption of the
prohibition, Maness said:
One of our supervisors, and I don't recall who,
brought up the subject of campaign badges being worn
by employees and the "Vote Yes" stickers being posted
throughout the plant. And I informed the people our
supervisors, that it was my knowledge that the
employees were permitted to wear union buttons, but I
did not feel that there would be any occasion for them
to wear campaign badges around the plant during their
shift work. I advised the men to ask the employees to
remove the campaign badges and I told them I wanted
the "Vote Yes" stickers removed from our wall and our
equipment where they were posted.
But then he explained the rescission of the prohibition by
reference to production considerations, testifying as
follows:
. I told [the supervisors ] that our corporate office felt
that it was a gray matter, or a gray area, as to whether
or not it is permissible for us to refuse to permit the
wearing of these badges, and that we felt production
and service of customers was more important at this
point than . . . to make . . . further issue out of the
matter.
In his testimony, Chappuis, who, after consulting
counsel, had made the actual decision to rescind the
prohibition, did not suggest production as a consideration
"Amidon indicated that a prohibition on distribution of Union badges
may have been occasioned solely by the fact that some employees were
wearing them See testimony quoted infra.
CENTRAL SOYA OF CANTON, INC.
in that decision ." And, after rescinding the ban on Union
badges , Respondent , through its supervisors , actively
distributed "Vote No" stickers or badges, conduct which
hardly bespeaks concern over the disruption of production
potentially caused by controversy.
On all the evidence , the Examiner finds that
Respondent has not shown any special circumstances
warranting the prohibition of employees ' wearing Union
badges. The law is well settled that "[t]he right to wear
union insignia on the employer 's premises during working
hours is guaranteed by Section 7 in the absence of special
considerations ." Serv-Air, Inc. v. N.L.R.B ., 395 F.2d 557,
563 (C. A. 10), cert. denied 393 U.S. 840 , and cases there
cited ." The prohibition imposed on April 23 is found to
have been violative of Section 8 (a)(I).
The complaint alleges that Respondent "threatened its
employees with discharge if they did not remove union
buttons from their clothing" and "discharged " the nine
employees " for the remainder of their shift" on April 23.
Respondent denied that it "discharged " or "threatened to
discharge" employees.
Phillips testified that in the April 23 meeting at which
the supervisors were told to prohibit the wearing of Union
badges, Maness "said specifically that employees would
not be discharged as a result of this ." This testimony was
not corroborated , although . Maness, Holloway , Amidon
and probably Chambers , all of whom testified on behalf of
Respondent , were in a position to corroborate it if it was
true.
Holloway testified that he had received instructions at a
supervisors ' meeting on April 23. There was testimony
that Maness held two supervisors ' meetings that day: the
second- shift supervisors were required to report for a
meeting about half an hour before the commencement of
their shift ; first-shift supervisors attended a meeting after
the end of their shift . Although Holloway was a first-shift
supervisor , he must have attended the meeting of
second -shift supervisors , including Phillips , which was held
before the second shift began , since it was before the
commencement of the second shift that Holloway ordered
employees to remove their badges before reporting for
work . Holloway was asked whether he had assured
employees that they would not be fired when he told them
to remove their Union badges . He replied that he had no
occasion to do so , since all the badge -wearing employees
immediately obeyed the order . However , he then
volunteered the statement that he "didn't have the
authority to" tell the employees that they would not be
discharged for refusal to remove their Union badges. Both
Holloway and Chambers indicated that when Maness
announced the prohibition on the wearing of badges, he
gave no indication or instructions as to the course to be
followed by the supervisors in the event of defiance by any
employees.
Phillips testified that during the April 23 incident he
explicitly and repeatedly gave the nine badge - wearers
affirmative assurances that they "would not be fired." He
said several employees inquired and he "just told them
they were not going to be fired ." He further testified
unequivocally that he heard Chambers similarly reassure
"Respondent does not appear to argue that the prohibition was essential
to guard against badges' falling off the employees ' uniforms and into the
chickens being processed . Nor would any such contention appear possible
in view of the provision in Respondent 's work rules making it mandatory
for employees to wear identification buttons visible on their outer work
clothing.
"The Examiner has carefully considered the cases cited by Respondent
and finds none of them supports the prohibition.
551
the employees. However, Chambers testified that he had
not made any such statements. His testimony concerning
his visit to the plant on April 23, after he had consulted
Maness by telephone, contained the following statements:
Q. At this time, did any employee ask you if he was
fired?
A. No.
« s * s r
Q. . . . Did you say anything to them that they were
not discharged, they were not fired? Did you tell them
that?
A. I told them to return to their jobs the next day at
the regularly scheduled working hour, which in effect,
would be telling them they still had a job and to come
back to work the following day.
Q. But you did say, you didn't use the words "you're
not fired, you're not discharged."
A. No.
Maness testified that in his conversation with Chambers
on April 23, nothing was said about discharge.
Employees Foster and Price credibly testified that
neither Phillips nor Chambers informed them that they
would not be discharged. Price credibly testified that she
asked Phillips, who replied that he did not know whether
they would be fired and an answer to that question should
be sought from Chambers."
Even absent the contradictions noted, the Examiner
would reject Phillips' testimony as inherently incredible.
Phillips would have one believe that he told the employees
they could not work while wearing Union badges, yet in
the same breath assured them that they would not be
discharged for persisting in wearing them. Holloway
testified that in the past employees had been discharged
for insubordination in refusing to obey foremen's direct
orders." It is inconceivable that Phillips, a foreman, might
have assured employees that they would not be discharged
for continued refusal to obey Maness' order that Union
badges not be worn at work.
"In a footnote to its brief , Respondent says-
Price testified that when Phillips first spoke to her, she asked him
whether she had been fired To which , according to Price on direct
examination, Phillips replied that "he didn't know , he would have to talk
to Charlie Chambers" (Tr. 495) [emphasis added] . On cross-examination,
Price testified contradictorily that Phillips replied , "he didn't know, that
we would have to see Charlie Chambers" Jr. 507 ) [emphasis added]
Price also testified that she asked Phillips what would be placed on the
employees ' separation papers if they were fired, and that Phillips had
replied that he didn 't know (Tr 496) Phillips denied that Price asked
the latter question of him Jr 666)
Counsel fails to note the general imprecision in the testimony at that
point in the transcript Respondent quotes part of a sentence from
Price's direct testimony . The entire sentence reads : "I asked him if he
was fired and he said he didn't know , he would have to talk to Charlie
Chambers and I asked him if we were fired what would they put on our
separation papers, without notice and he said he didn 't, know "
(Emphasis the Examiner's) Manifestly, Price did not intentionally testify
that she asked if Phillips "was fired." The Examiner fails to find any
substantial relevant "contradiction" within Price's testimony At no time
did anybody suggest that the employees would or should be given an
opportunity to plead their case to management Since Maness, on
instructions from Chapputs, would make the decision , recourse to
Chambers could have been only for informational purposes.
Accordingly, it could hardly be significant whether Phillips said "he" or
"we" in answering Price's question.
"Respondent introduced into evidence a set of rules which it asserts were
in effect and posted on the bulletin boards at the time here involved These
rules provide, inter alia•
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As Respondent contends, there is no evidence of any
express verbal threat of discharge; no employee was told
in haec verba that he had been or would be "fired" or
"discharged" for wearing a Union badge. However, it is
difficult to imagine a more pointed "threat of discharge"
than Respondent's conduct on April 23. An employee who
had been given the choice of removing his Union badge or
clocking out could hardly be called neurotically anxious if
he concluded that his continued employment was
conditioned on his not wearing a Union badge. The
Examiner accordingly concludes that employees were
threatened with discharge for wearing Union badges, in
contravention of Section 8(a)(1).
The Examiner also credits employee Price's testimony
that on May I Phillips repeated the prohibition of wearing
Union badges on Company property. This conduct
constituted an additional violation of Section 8(a)(1).
The complaint also alleges that nine employees were
"discharged" for wearing their badges. Phillips'
discredited testimony to the contrary notwithstanding, it
appears that on April 23 management had not decided
what course would be taken in the event of employee
defiance of the orders to remove their badges 16 The
undisputed facts, however, establish at least a layoff or
suspension. Further, it must be assumed that the
employees would not have been permitted to return to
work with their Union badges on if the prohibition had
not been rescinded on subsequent advice of counsel.
Maness explained the requirement that the nine employees
report to the personnel office the next day as follows:
"We attempt to explain our actions to our employees and
I wanted the people in question to receive an explanation
from us as to why we took the action we did in clocking
them out and having them leave the property."
Undoubtedly he then hoped that his "explanation" would
bring compliance. But it cannot be assumed that Maness
then intended to permit employees to continue to wear
their badges at work if they found the explanation
unsatisfactory.
The Examiner accordingly concludes that the nine
employees were discharged on April 23, with the condition
subsequent that they could wipe out the discharge by not
wearing their Union badges. The "condition", of course,
was unlawful. Thus, the fact that the employees were
reinstated does not alter the fact of discharge. Cf. Foster
Mfg. Co, 175 NLRB No. 29.
The coerciveness of the April 23 incident is not
alleviated by the fact that the nine were eventually
compensated for the time lost. The diminished paychecks
they received immediately before the election forcefully
conveyed the message that enthusiastic support of the
Union could be costly.
CAUSES FOR DISMISSAL
6. Disobeying the foreman or the superintendent or other acts of
insubordination.
However , the Examiner ascribes no substantial significance to this alleged
rule. Supervisor Holloway testified as follows-
Q (By Mr . Isenberg ) Is there a plant rule, or was there at the time,
against insubordination , refusal to obey
THE wmaEss : No, we had no set rule , no written rules that we went
by.
Except for Amidon , no witness at any time referred to the existence of
published or posted rules . See discussion of the no-solicitation rule, Infra.
"Apparently it had not occurred to Maness that employees would defy
direct orders Chambers testified that he had had several conversations
with Maness about the badge problem before the prohibition was adopted
but until he spoke to Maness by telephone after Phillips had clocked the
nine employees out, Chambers had "just never been told if they wore them
and refused to take them off or refused to work , just what would we do "
Respondent contends that payment for the lost time
was deferred until after the election to avoid Respondent's
being accused of attempting to "bribe" the employees'
votes. It is not readily apparent how paying to ardent
Union supporters funds of which they had been unlawfully
deprived could have been considered a "bribe." On the
contrary, it could have served only as assurance, belated
though it was, that support for the Union would not
necessarily prejudice an employee' s rights. Withholding of
such funds, however, could serve no purpose other than a
warning to all employees. As the Board said in affirming
the Regional Director's order setting the election aside.
. that none of the nine employees was reimbursed,
or even told that they would be reimbursed, until after
the polls closed, is, we find, an additional reason for
concluding that the Employer's April 23 conduct
interfered with the employees' right to freely exercise
their voting franchise on May 3, as it clearly
demonstrates that the coercive impact of such conduct
was not dissipated before the election.
The bad-faith nature of Respondent's conduct is
highlighted by the undisputed fact that, in answer to
employee Eloise Foster's inquiry of May I, 2 days before
the election , Maness said he did not know whether the
nine would be paid for the lost time because no decision
had been reached. As previously stated, the Examiner
credits Chappuis' testimony that on April 24 he instructed
Maness that the employees were to be paid for the time
lost on April 23.
Thus, while the nine employees ultimately suffered no
financial loss , their layoff on April 23 and the withholding
of compensation for the layoff period until after the
election constituted discriminatory action to discourage
Union activity.
The Examiner concludes that the Union badge incident
violated Section 8(a)(I) and (3).
2. Alleged threat of wage cuts and interrogation
The complaint alleges that Maness and Walker,
maintenance and repair supervisor, threatened employees
with a wage cut if the Union was successful in its
organizational campaign.
Employee Wesley Williams, a leading Union supporter,
testified that on April 23 Walker said there was a
possibility of wage cuts if the Union were to come in.
Although the General Counsel in his brief refers to
Walker's "prediction" of wage cuts if the Union won the
election, the evidence as a whole fails to establish that he
made any such unqualified "prediction," let alone any
threat to that effect. Williams' initial testimony in this
connection was that Walker said:
I don't see where [the Union is] going to help you'uns
any. If it comes in it's possible that some out in the
plant, there's bound to be some cuts and raises.
Although Williams here quoted Walker as having said
"there's bound to be" cuts and raises, the general tenor of
his testimony was, as he said later, that Walker "said it's
a possibility in the plant there will be some wages cut and
some raised."
The General Counsel also called as witnesses employees
Frank Barton and W. T. Wright, who had overheard all,
or at least the crucial parts, of the conversation of April
23 between Williams and Walker. Like Williams, they
indicated generally that Walker had mentioned the
"possibility" of both raises and cuts in wages if the Union
came into the plant. For example, Barton testified: "Mr.
CENTRAL SOYA OF CANTON, INC. 553
Walker said if the Union come in there was a possibility
of some getting raises and some getting cuts." And again:
"Mr. Walker said if the union come in there was a
possibility of being cut or raised. Some could be cut and
some could be raised." Similarly Wright testified that
Walker said "if the union come in that there would be a
possibility of some of them getting a cut instead of a
raise."
Walker's version of his statements was:
A. . . . It could have been Wesley Williams or
Turner Wright, but somebody said if the union gets in,
is it true there will be some sizable raises.
The Examiner cannot find this apparently casual and
isolated question to have been coercive, particularly in
view of the facts that Walker and Williams were personal
friends and Williams was well known to be an active
Union supporter and solicitor among the employees.
Accordingly, on all the evidence, the Examiner will
recommend dismissal of the complaint insofar as it alleges
unlawful threats and interrogation by Respondent through
Maness and Walker.
3. The no-solicitation and no-distribution rule
Q. And what did you reply to the question?
A. Well, you know as well as I do, [ told them, what
the union scale is in the plant in town that is unionized,
and you know that that scale is lower, that there could
be some cuts.
There is no material discrepancy between Walker's and
the employees' testimony. Under neither version do
Walker's statements appear to be threatening or coercive
The evidence concerning Maness' alleged "threats" of
wage cuts in the event of a Union victory is also lacking
in coercive tone. The employee witnesses themselves
accused Maness only of having said that a Union contract
presented the possibility of both increases and decreases in
wage rates.
It is undisputed that at employee meetings held on
April 27, for the maintenance workers, and May 1, for the
production workers, Respondent distributed leaflets
(referred to as "blip sheets"). One of the blip sheets
purports to compare Respondent's production wage rates
with those provided in collective-bargaining agreements
that the Union has with two corporate sisters of
Respondent and with a competitor of Respondent.16 In
most instances the rates at Respondent's plant appear
higher than those under the Union's contracts.
Respondent's employees could understandably translate
this blip sheet into a statement by Respondent that a
Union victory and ensuing contract might well result in
wage adjustments both upward and downward, but
primarily downward. Distribution of the blip sheet was
not alleged as violative of the Act and it was not alleged
or shown that the blip sheet misrepresented the facts."
Accordingly, the Examiner finds that the General Counsel
has failed to establish that at the April 27 and May l
meetings Respondent, through Maness, threatened wage
cuts as retaliation or "punishment" if the employees chose
to be represented by the Union."
The only evidence in support of the allegation in the
complaint of unlawful interrogation is Wesley Williams'
testimony that Walker -
says, Wesley, what do you think about the union, do
you think there's a possibility of it coming in and I
said, I don't know, it's hard to tell yet... .
"A second blip sheet distributed at the time purports to compare
Respondent ' s employee insurance plan with those at the three unionized
plants.
"That, the blip sheet was limited to production wage rates and made no
reference to maintenance workers' wage rates does not render the
document misrepresentative.
"In view of this conclusion , it is unnecessary to rely on Maness'
testimony , corroborated in substantial part by Amidon but contradicted to
some extent by employee witnesses, concerning Maness' precise statements
at the employee meetings.
a. The printed rule
The record shows that the General Counsel first learned
of Holloway's role in the Union badge incident on
October 31, when James Cagle belatedly appeared in
response to a subpoena previously issued. As set forth
above, Holloway was quoted as having told the employees
that the wearing of Union badges was contrary to a
Company rule. Although the Examiner prohibited the
introduction of any evidence concerning Holloway until
the resumed hearing in December, the General Counsel
manifestly became aware of Holloway's statements on
October 31.
On November 1 employee Wesley Williams testified
that on April 23 -
Mr. Walker walked up to me and was talking about
cards . . . not be giving any out on company time and
he went on to say he didn't want any cards give out on
the company's time. Property was all right but not on
time .
Williams then proceeded to testify to the remainder of the
conversation, which, as discussed above, had been alleged
as violative of Section 8(a)(l) in threatening wage cuts as
a result of a union victory. On cross-examination,
Williams testified that Walker had "said not to be giving
out cards, buttons on the company's time." Thereafter
employee Barton was called as a witness by the General
Counsel. On direct examination, Barton testified
concerning Walker's alleged threat of wage cuts in the
conversation with Williams. On cross-examination
Respondent's counsel asked Barton if he had "hear[d] Mr.
Walker say anything about distributing buttons" and
whether Walker had ever told Barton "that in the course
of his conversation with Williams he had talked about
distributing union buttons or cards." Barton's responses
were confused. Employee W. T. Wright, the General
Counsel's next witness, testified that Walker had "just got
on to Red [Williams] about handing out cards and he was
getting on to him about not let him catch him handing
them out on company time." On cross-examination,
Respondent's counsel asked Wright if he had "hear[d]
anything said by Mr. Walker when he was talking to Mr.
Williams about these buttons." Wright answered in the
negative.19 On redirect examination, the General Counsel
asked Wright if he knew of "any rule of the company
which prohibited the passing out of letters or buttons in
the plant." Respondent's counsel objected to the question
on the ground that "It's going beyond anything that was
said on - ." The Examiner sustained the objection.
"Walker later testified that he had cautioned Williams only about
passing out Union buttons on working time, he did not mention Union
cards . The Examiner credits the employee witnesses and fords that Walker
told Williams not to distribute Union cards or badges on working time
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereupon, after conferring with the witness, the General
Counsel "offer[ed] to prove that if the witness, Mr.
Wright, were allowed to testify that he would testify that
Respondent has no company rule which prohibits the
passing out of union buttons or union cards in the plant."
After a luncheon recess, the General Counsel, in a
surprise move, called as his next witness James Amidon,
Respondent 's personnel manager , who had been sitting at
Respondent's counsel table throughout the hearing. Over
the objection of Respondent's counsel, the Examiner
permitted the General Counsel to ask Amidon whether
Respondent had "any rule which prohibits the passing out
of union buttons and distribution of union buttons at the
company."
The basis of Respondent's objection was that the
question was "beyond the scope of the complaint,
irrelevant ." However , as previously seen, Williams,
Wright and Barton had already testified without objection
to walker's having given voice at least to an oral rule.
And, as shown by evidence later adduced, supervisor
Holloway had referred to a company "rule" or!"law"
when he ordered removal of Union badges.
The General Counsel's questions of Wright and
Amidon were not directed toward expanding the
complaint. Though not explicitly stated, General Counsel's
purpose in attempting to prove, first through Wright and
then through Amidon, the non-existence of a
no-solicitation rule undoubtedly was to anticipate a
possible move by Respondent to justify the prohibition of
Union badges as an implementation of an existing and
announced no-solicitation rule, under Fabri-Tek, Inc. v.
N.L.R.B., 352 F.2d 577 (C.A. 8).20
The General Counsel's question of Amidon, therefore,
was material to the issues raised by the complaint and
related to evidence already in the record. Accordingly, the
Examiner hereby reaffirms her ruling rejecting
Respondent's objection to the General Counsel's
examination.
In his ensuing testimony, Amidon stated that the
Company had a broad "rule prohibiting advertising or
solicitation on the company property" on both working
and non-working time. Amidon's testimony was very
specific. On examination by Union counsel he testified as
follows:
Q. . . . Is the no-solicitation rule that you and I are
talking about that was in effect on April 23, 1968, is it
a printed rule? How is it published?
A. It is published along with the other company
rules , typewritten on paper, posted on the company
bulletin board.
Q. Do you know how long that rule was published in
printed form?
A. To the best of my recollection I would say in
excess of a year.
* * *
A. We had plant rules when I assumed my present
position.[,, ] Shortly after coming with the operation
these rules were revised by myself and republished, and
"It may be noted that in its brief Respondent twice cites the court's
decision in Fabri-Tek. That decision is, of course , contrary to the Board's
view (Fabri-Tek Inc.. 148 NLRB 1623, 1628 ) and has been expressly
rejected by at least one other court . Serv-Ab. Inc. v . N.L.R.B., supra at
563.
"Amidon became Respondent ' s personnel manager around January
1967.
"The caption on the September 5 document reads : "GENERAL WORK
RULES - Re-Stated and Published September 5, 1968."
since the April instance they have again been revised
and republished.
Q. So you -- there was a no-solicitation rule in
existence at the time that you came with the employer
in Canton , then you in your capacity, you revised the
rule and published it?
A. Yes.
Q. And then subsequent to April 23, 1968 you again
revised it personally and published it again?
A. Yes.
Q. Counsel for the General Counsel asked you
whether or not there was a rule against passing out
literature throughout the entire plant . Your answer was
you believe there is . Now is that published?
A. Again if I may clarify myself , this would come
under in my opinion an interpretation [of] the
non-solicitation rule.
Amidon was emphatic that he, who was charged with
interpreting and enforcing Company rules, believed the
rule prohibited distribution of Union cards and badges
anywhere on Company premises at all times.
Upon the completion of Amidoi' s testimony, the
General Counsel moved for leave to amend the complaint
to add an allegation that Respondent maintained an
invalidly broad no-solicitation and no-distribution rule.
Because the hearing was scheduled to adjourn at the end
of the day for 6 weeks , the Examiner reserved ruling and
directed the General Counsel to make his motion in
writing , with an opportunity to Respondent to file a
written response after counsel had had an opportunity to
review the transcript of the hearing to that date. On
consideration of the written documents thus filed, the
Examiner granted the motion to amend by order dated
November 27.
At the resumed hearing , which commenced on
December 16, Amidon , again called by the General
Counsel , testified that his previous testimony was
erroneous . He said he had since checked the records and
ascertained that the Company had not had any
no-solicitation or no-distribution rule in effect until
September 5, when he "revised" its work rules .22 When
Amidon was later called as a witness by Respondent, he
identified three sets of company rules , which Respondent
then placed in evidence . The first was stated to have been
in effect through July 13, 1967; the second , from July 14,
1967, through September 8, 1968 ; the third, published
September 5, effective on and after September 9, 1968.
Only the September 5 rules contain any reference to
solicitation or distribution.
The relevant provision in the September 5 document
reads:
THE FOLLOWING ACTS WILL NOT BE
TOLERATED:
22. Soliciting or advertising in any form on the
Company property without prior approval of
superintendent.
This rule is presumptively invalid on its face . Orleans
Mfg. Co., 170 NLRB No. 9, TXD , and cases cited;
Lexington Metal Products Co., 166 NLRB No. 106,
TXD.
Neither by evidence at the hearing nor by argument in
its brief does Respondent attempt to justify the broad
no-solicitation rule promulgated on September 5,
CENTRAL SOYA OF CANTON, INC. 555
Respondent 's position in its brief being that "the material
times coincide with the period of time encompassed by the
Union ' s organizing campaign ," beginning in early January
"and ending on the election date , May 3 ." 23 However,
largely in response to questions put by the Examiner,"
Amidon provided an ostensible basis for the broad rule
unrelated to union activities . Amidon said that when he
arrived , around January 1967 , Respondent was virtually
plagued by various types of solicitations , both legitimate
and otherwise . He testified:
... We're always getting people running around taking
up collections for one thing or another , and we have
people trying to get in to our property selling different
products , and we ' re trying to hold this down . This is
our purpose of this no-solicitation rule. It ' s not in
reference , specifically , to any union doings.
* * * * *
Q. These solicitations have been going on since you
took over , you said, practically a daily affair?
A. They were originally , when I first came there. I
think we 've got them pretty well whipped now.
* * * * *
Q. And this sort of thing went on until September,
until you published the rule?
A. Well, it went on in a decreasing amount. I've
been working on this thing ever since I came to
Canton, trying to eliminate the whole thing. The
solicitation and stuff.
However , Walker , who had been with the Company for 5
years , 2 of them as maintenance supervisor , testified as
follows:,,
THE WITNESS : The only solicitation I ever see is if
somebody died or was sick in the hospital, I see once in
a while the hourly people will go around among
themselves and take up a little donation for flowers or
a gift... .
TRIAL EXAMINER :. . . About how often does that
happen?
THE WITNESS : Well, no set pattern , dust whenever
somebody that works at the plant or their immediate
family gets sick or dies.
TRIAL EXAMINER : Is that during working time?
THE WITNESS: No. . . . It's primarily at break time
and lunch time.
* * * * *
THE WITNESS : I don't remember seeing any during
work time . It's my personal - my business down there
is maintenance . I have sixteen, or fourteen men that I
try to keep track of, 150 people in the plant, and I
"The General Counsel 's brief does not discuss , or even mention, the
no-solicitation rule. However , it does say : "In the brief it has not been
attempted to analyze all matters of fact and law completely and in detail.
Counsel for General Counsel specifically states that no position,
conclusions of law , or findings of fact which can be drawn from the record
as a whole is being abandoned by not including such in the brief or in the
argument during the hearing . Further , the Trial Examiner is specifically
requested to make all findings of fact and conclusions of law favorable to
the General Counsel's case that can be drawn from the record as a whole."
While this statement is not to be recommended as a model of helpful
briefing , it is perhaps sufficient to indicate that the unlawful no-solicitation
rule has not been abandoned as a basis for a finding and remedial order.
"over the objection of Respondent 's counsel, the Examiner exercised her
authority to "examine , and cross-examine witnesses" (Sec. 102 .35(1) of the
Board 's Rules and Regulations ) for assistance in resolving credibility
issues, including that raised by Amidon 's recantation of his prior
testimony.
"This testimony also was given in response to questioning by the
Examiner over the objection of Respondent 's counsel.
don't pay a whole lot of attention to them.
TRIAL EXAMINER: Have you ever had occasion to tell
any of your employees not to solicit for such matters
during their working time?
THE WITNESS: No, I've never told my employees
that.
TRIAL EXAMINER ' Have you ever seen them do it,
when they were on the clock?
THE WITNESS: No.
TRIAL EXAMINER: You have seen them do it during
break time?
THE WITNESS: Right.
TRIAL EXAMINER: In the break room?
THE WITNESS: Not necessarily.
If Amidon was correct as to the solicitation problems
at the plant at least since January 1967, it is difficult to
understand why the rule was not adopted until September
5, 1968, particularly when, according to Amidon, he had
revised the plant rules in April 1967 and had maintained
similar rules in the companies he had previously served.26
On the other hand, if Walker was accurate in his
testimony as to the non-existence of any substantial
solicitation problem, the broad rule manifestly was not
shown to be justified. Further, Walker's testimony clearly
suggested that even as of the present time there is no strict
prohibition on solicitations in the plant, even on working
time. For example, he testified as follows:
MR. STRAUSS: Suppose you were going through there
and you saw one of your maintenance men talking to
an employee who was on that line and you overheard
this man of yours say; look, so-and-so's mother has
died. Will you contribute to a flower fund for her.
What would you do?
THE WITNESS: Well, when you get into a situation
with somebody's mother has died, maybe you don't just
say, now look here, you've got to cut this out until
break time. You kind of have to use your own
judgment in things like that. It depends on what the
person' s doing.
Q. (By Mr. Strauss). Well, suppose all the facts were
the same, but suppose it was a solicitation for a dance
that was being held in town, what would you do then,
selling tickets for a dance?
A. I believe I'd tell him just to try to do this at
break time.
On all the evidence, the Examiner finds that the
promulgation of the broad no-solicitation rule on
September 5 was dictated by the Union campaign and,
particularly, by the anticipated second election which the
Board had directed about a week before. The rule was
presumptively invalid and no credible evidence was
presented of any special considerations justifying it.
The question arises , however, whether promulgation of
the rule on September 5 and its subsequent maintenance
may properly be made the subject of findings in the
precedural posture of this case. As previously noted, it
was not until after Amidon's original testimony of
November l that the complaint was amended to allege an
invalid rule . The amendment then made alleges:
Respondent, at all times material herein and during the
Union' s organizing campaign , maintained and enforced
"Respondent 's counsel objected when the Examiner started to direct a
question to Amidon on this matter. In the colloquy that ensued, the
question was never completed . No similar question was ever put to
Amidon , so the record contains no explanation by Respondent.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a rule prohibiting its employees from soliciting their
fellow employees during non-working time to join or
support the Union . [and] from distributing leaflets,
pamphlets and other literature on behalf of the Union
during non-working time and in non-working areas of
Respondent's property.
In context, the amendment apparently refers to the
period from around January through May 3, as
Respondent appears to contend. However, since the Board
had directed a second election before the rule was actually
promulgated, it may be said in a literal sense that the
"Union's organizing campaign" was still in progress when
the rule was promulgated.
In any event, the violation was established by
Respondent itself. When first called as a witness by the
General Counsel, Amidon took the stand without
objection by him or by Respondent's counsel. General
Counsel first established Amidon's position in the
Company and his familiarity with Respondent's rules and
regulations. Respondent's counsel first objected when the
General Counsel requested permission to cross-examine
Amidon under Rule 43(b) of the Federal Rules of Civil
Procedure.27 The General Counsel's first substantive
question concerned the existence of a no-solicitation rule.
With only a luncheon recess intervening, the question
came directly after the General Counsel had offered to
prove the non-existence of such a rule and was thwarted
only because he had waited until re-redirect examination
of employee Wright." It was Amidon's unexpected
testimony at this time which led to the motion to amend
the complaint, and the complaint was geared to that
testimony. It might well be said that the General Counsel
would have been derelict had he not moved to amend the
complaint on the basis of Amidon's sworn testimony
prima facie establishing a violation of which the General
Counsel obviously had not been, and could not have been,
aware previously.
In its opposition to the General Counsel's motion to
amend the complaint, Respondent maintains that "the
General Counsel has subverted Respondent's Section 10(a)
`right' to a hearing by in effect utilizing the hearing as a
`Star Chamber' device to coerce testimony from
Respondent," and, further, that the General Counsel
"abused the ... Section 4(d) investigatory powers " There
is no merit to Respondent's argument. The General
Counsel was manifestly seeking to establish the non
existence of a published general no-solicitation and
no-distribution rule at the time in question. As it turned
out, the General Counsel's offer of proof accorded with
the facts. The subsequent disclosure of the later
promulgation of an invalid rule resulted directly from
Amidon' s original non-factual testimony and his
subsequent recantation, with an attempted explanation of
his original "error." Had Amidon not made this error, in
answer to the General Counsel's question he would have
said that the Company had no such rule in effect at the
time involved, and that would have been the end of the
matter.29
"The basis of counsel ' s objection was "that Mr . Amidon's duties do not
qualify him as managing agent " The Examiner granted the permission
requested . The propriety of that ruling is academic , since Amidon's
testimony concerning the no -solicitation rule was elicited without leading
questions and neither the General Counsel nor Union counsel attempted to
impeach or contradict the witness . Respondent ' s counsel chose not to
exercise his right to cross-examine Amidon at that time.
300n redirect examination of Wright , the Examiner had admonished the
General Counsel about presenting evidence on redirect examination which
might have been given on direct
It can hardly be said that Respondent has been taken
by surprise or denied an opportunity to defend The
relevant evidence was all provided by its own personnel
manager , whom counsel chose to have assist at the
hearing when Respondent's motion for the sequestration
of witnesses was granted.
Under the circumstances , despite a possible deficiency
in the wording of the complaint, the Examiner believes
that the policies of the Act would be grossly subverted if
there were no finding of an 8(a)(1) violation. The practical
effect of omitting such a finding would be to permit
continuation of a clearly demonstrated violation of
Section 7. The Examiner cannot close her eyes to an
unfair labor practice indisputably established after
Respondent had full opportunity to litigate.30
b. Oral prohibition of distribution
Employees Wesley Williams and W. T. Wright were
called by the General Counsel to testify in support of the
allegation in the complaint that Respondent threatened
wage cuts if the Union was voted in. In relating the
relevant conversation between Walker and Williams, the
latter said that Walker had admonished him against
passing out Union cards or badges on working time.
Wright, who had overheard the conversation, testified that
Walker had told Williams not to distribute Union cards
on Company time Walker denied that he had spoken to
Williams about distribution in the course of the
conversation in question , but conceded that on another
occasion, possibly on the same day, April 24, he had told
Williams not to pass out Union badges on Company time.
He denied that he had said anything about Union cards,
as distinguished from Union badges. However, he further
testified that his admonition had been prompted a
foreman 's having reported to him "that Mr. Williams was
passing out union information again . So at this time I told
him that I didn't want him doing this while he was on the
clock, and I didn't want him bothering people that were
on the clock." [Emphasis supplied.] This passing
statement by Walker would appear to corroborate the
employees' testimony. The Examiner finds that Walker's
instruction to Williams was not limited to Union badges
but prohibited the distribution of any Union material on
working time.
Walker testified that he had announced the prohibition
on his own motion, being unaware of any Company rule
against solicitation or distribution. In this connection, his
testimony was, in part:
Q. Had you been told, at any time, that this was not
allowed?
A. No.
Q. To your knowledge?
A. I know, myself, that this is not the proper way to
do things . He's on duty, not conducting union business.
"When Amidon first testified he agreed , at the request of Union counsel,
to bring to the resumed hearing copies of the Company's three sets of rules
in effect since January 1967 At the resumed hearing , Union counsel did
not ask for their production . The terms of the September 5 rules were first
stated in answer to a question by the Examiner and the successive rules
themselves were later introduced by Respondent when it called Amidon as
its own witness.
"The amended complaint did not and could not have alleged unlawful
promulgation of the rule, since Amidon's original testimony placed that
promulgation long before the 10 (b) period The facts ultimately developed
establish that it was actually promulgated within the Section 10(b) period
Thus, the finding will embrace both promulgation and maintenance of the
rule as violative of Section 8(a)(1).
CENTRAL SOYA OF CANTON, INC.
People on the line he was passing out buttons to are on
duty and they shouldn't be bothered. So I dust believe,
myself, that that's the right thing to do, and I cautioned
him about it.
Q. I see. There was no company rule on this or
anything like that'?
A. Not that I'm aware of. . I just took it on
myself to lay down this rule to him. He works for me
and I believe he'll do what I say to. I hope he will.
Q. What if he didn't know better?
A. We could ask him, when he got off the clock, to
leave the gate. We've never done anything like this but
this is a possible solution.
Q. For insubordination?
A. You mean if he went ahead and passed out the
Q. Yes. If you told him to stop engaging in this
union activity and he continued, he decided he would do
so?
A. That would be insubordination.
Like Walker, Amidon maintained that the distribution
prohibition was announced only with respect to Union
badges, not Union cards. However, also like Walker, in a
passing statement, Amidon indicated that it actually was
very broad. Also, Amidon's testimony tended to
contradict Walker's assertion that he had announced the
prohibition on his own initiative. Amidon's testimony in
regard to this matter was as follows:
Q. Did you hear Mr. Williams state that supervisor
Walker told him he could not pass out union cards?
A. Yes, I heard that testimony.
Q. Assuming that Mr. Walker did make such a
statement to Mr. Williams, did Mr. Walker have any
instructions that union cards could not be passed out?
A. I don't believe the issue was union cards at that
time. I believe it was these union campaign badges.
However, on this issue , I think it's very likely that I
personally gave Jack Walker instructions to that effect.
Q. To what effect, sir?
A. That we would not allow distribution of literature
or buttons, badges, or anything, to people who were on
the production line on the clock.
Q. Now, did you say anything to Mr. Walker about
the solicitation of the union cards?
A. Cards. No, sir, I did not.
Walker acknowledged that he had not personally seen
Williams distribute Union material on working time. He
further testified that when he spoke to Williams about the
matter, Williams said that the only distributing he had
done on Company time was at one time to give the badge
he personally was wearing to another employee who asked
for it. There was no refutation or contradiction of this
statement attributed to Williams by Walker. Walker's
testimony thus failed to show that any interference with
production had been created by Union activities of
Williams or any other employee.
Amidon's testimony reflects the absence of any such
problem, as follows:
A. . . . one of the supervisors informed me that
union campaign badges were being passed out in the
processing plant on the production line. . . Or words to
that effect.
* * *
Q. . . . Then did you, from that information , surmise
that the company might be losing production time of
the employees who engaged in passing out these
buttons?
557
A. Yes, it's very obvious to me that if a person is
running around passing out campaign buttons he's not
only losing production on his own behalf, but he's
disturbing the other people on the line who not only
have to keep up with that chain , but they're responsible
for quality product , it's Government inspected.
Q Did the supervisor say he saw them being handed
out by employees or did he say he saw them being
worn?
A. I don't recall.
Q. How did you make the assumption, Mr. Amidon,
that they were being passed out on company time?
Couldn't they have been passed out on rest periods, as
some of the ladies said they were?
A. They could be, and this we did not, we did not
press this issue.
It appears that the prohibition on distribution was
announced by Walker pursuant to the general policy
announced by Maness at the supervisors' meetings on
April 23, which embraced the prohibition on wearing
Union buttons which was put into effect on the second
shift of that day. Concerning these meetings, Maness
testified as follows
Q. Now, at the time you held your supervisors
meeting on April 23rd, were you aware of any rule in
existence in the company which prohibited the wearing
of campaign badges on company property on company
time?
A. No, sir. I don't know that we had any ruling of
that nature or not, but after I explained to them, this
was a decision of mine, irregardless of any rule.
* * * *
Q. Did you have any rule in existence at that time
prohibiting solicitation on company property on
company time?
A. I don' t know that we had any specifically stated
as such. I always, and will always, reserve the right, as
manager , to make decisions pertaining to things of this
nature, regardless of rules.
On all the evidence , the Examiner finds that the oral
prohibition announced by Walker to Williams, was in line
with general company policy initiated for the Union
campaign here involved and that the prohibition covered
the distribution of all kinds of Union material , including
badges, cards and "literature."
Although the prohibition as stated by Walker was
limited to working time and was thus presumptively valid,
the presumption of validity is overcome by other evidence
and Respondent failed "to show that the rule, although
limited to union [distribution ], was nevertheless required
in order to maintain production or discipline." State
Chemical Co.. 166 NLRB No . 60; Ridgewood
Management Co., 171 NLRB No. 31, TXD, enfd. 410
F.2d 738 (C.A. 5).31
As with Respondent's printed no-solicitation and
no-distribution rule, the oral prohibition announced by
Walker to Williams presents a problem of pleading and
procedure.
"Even if, as Walker maintained , he had adopted the prohibition on his
own, rather than pursuant to overall Company policy prescribed by higher
authority , it would be an unlawful "on the spot" rule The
Schwarzenback-Huber Co, 170 NLRB No 176, TXD , enfd in pertinent
part 408 F 2d 236 (C A 2)
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When, at the conclusion of Amidon's original
testimony, the General Counsel orally moved to amend
the complaint, he included in the proposed amendment an
allegation of discriminatory enforcement of the broad
rule. The written motion thereafter filed, pursuant to the
Examiner's direction, does not contain any such specific
allegation . The memorandum in support of the motion,
however, contains the following footnote:
Encompassed in the amendment to the complaint is
Walker's threat to Williams on April 24, that he could
not pass out union cards since such constitutes
enforcement of Respondent's invalid no-solicitation and
no-distribution rule....
Respondent's Opposition to Motion to Amend
Complaint is, in effect, a combined pleading and
supporting memorandum. It does not specifically refer to
the quoted footnote from the General Counsel's
memorandum.
Although generally speaking briefs and legal
memoranda to the Examiner are not part of the "record"
(Sec. 102.45(b) of the Board's Rules and Regulations),
when the hearing was resumed in this case, on
concurrence of all the parties, both the motion to amend
and the supporting memorandum were specifically placed
in the record since together they were equivalent to the
Respondent's single-document opposition, which, of
course, was also incorporated into the record ( as well as
Respondent's answer to the amendment of the complaint.)
Thus, though the General Counsel's pleading may not
have been the most desirable in form, it is clear that
Respondent was put on notice, both orally at the original
hearing and later by the documents filed, that the
Walker-Williams admonition against distribution was in
issue . As the evidence discussed above shows, the matter
was fully litigated , both Walker and Amidon, Company
representatives, specifically testifying with respect thereto.
The evidence did not, of course, prove the precise
allegation that the Walker admonition constituted
application of a general rule because, as previously set
forth, the Company had no such general rule in effect at
the time. But when he first moved to amend, the General
Counsel was reasonably relying on Amidon's unequivocal
sworn testimony.
On the other hand, the General Counsel knew (or
should have known) of the Walker-Williams incident when
the complaint was filed, since Walker's alleged threats of
wage cuts in the course of the same conversation were
alleged in the complaint. Had it not been for Amidon's
original testimony, the Examiner would probably have
denied any motion on the fourth day of the hearing to
amend the complaint to add an allegation that Walker's
statements to Williams constituted the imposition of an
invalid no-distribution rule, even though , as heretofore
indicated , the Examiner so finds.
On the record as a whole, the Examiner believes that
Respondent was adequately on notice that the Walker
prohibition of Union distribution was in issue . Respondent
thus was not prejudiced. Further, the matter was actually
fully litigated. Accordingly, the Examiner specifically finds
that the Walker statements were violative of Section
8(a)(1).
C. Section 8(a)(5)
1. The Union's majuiity
a. The crucial date
On March 7 Thomas N. Scarborough, general
organizer for the Union's International, sent to Frank X.
Maness, Respondent' s plant manager , a letter claiming'
that the Union represented a majority and offering "a
card check with a neutral third person to prove our
majority status." The letter was sent registered mail,
return receipt requested. Scarborough testified that about
7 or 8 days after he sent the letter, he received in the mail
a return receipt which was not signed by or on behalf of
the Company. However, Scarborough testified that the
receipt had been mislaid and could not be found in the
Union's files.
On March 14, having received no reply to his letter of
March 7, Scarborough filed a representation petition with
the Board.
Maness testified that it was on Monday, March 18,
that he received both service of the petition and the
Union's registered letter of March 7. Both documents,
introduced into evidence by Respondent, are date-stamped
March 18. According to Maness , all the Company's mail
is delivered to a Post Office Box in the Canton Post
Office. Mr. Yeakley, Respondent's auditor, or somebody
designated by him, picks up mail at the Post Office twice
a day - once at about 8:00 a.m., on the way to work,
and once about I p.m., on the way back from lunch.
According to Maness , the March 18 date-stamp would
have been placed on the Union's letter and petition by
Respondent 's receptionist, to whom Yeakle) gives the
mail when he brings it to the plant from the Post Office.
Maness testified that he first knew of the Union's
demand when he received it on March 18, simultaneously
with service of the representation petition. To support this
contention, Respondent introduced into evidence a
photocopy of a "Notice of Arrival of Registered Mail,"
the original of which is in the files of the Canton Post
Office. This notice shows delivery to Yeakley on March
18. On the top of the notice appears the handwritten
notation "2d notice," which, according to Maness, was
placed thereon by Post Office personnel. On voir dire
examination, Maness testified that he had no knowledge
of any "first notice" given by the Post Office and stated
that no inquiry had been made of the Post Office in this
connection." However, he later testified that when
Respondent was preparing for the present hearing he sent
Amidon to the Post Office to secure a copy of the notice
of arrival "so that we could verify the arrival date." Maness
then said that, upon inquiry, Amidon was informed that
the Post Office had no record of a "first notice."33 Absent
any explanation, it appears unlikely that Post Office
personnel would mark "second notice" if it had no
record of a "first notice" in its files.
"His testimony was- "Q Do you have in your possession , or have you
ever attempted to get the first notice that you were given? A No, sir, we
do not have anything in reference to a first notice, nor does the Post Office
have anything in reference to it I would have to say that I don't know
whether the Post Office has any reference to a first notice or not , I'm not
sure about that . Q. Did you ever check to see if they did' A. No, sir, this
was the only one that was signed."
"His testimony at this point was. "A . I don't even know that there was
a first notice , sir.... Q . All you know is that when you sent Mr . Amidon
to the Post Office to photocopy the notice - A. It had second notice on it
.. TRIAL EXAMINER:... Did you ask or instruct Mr. Amidon to inquire
log the Post Office as to whether there had been a first notice , and if so,
what had happened to it? THE wrrNESS : We did so inquire , Madam Trial
Examiner, and the people informed us that they had no other record, other
than this right here. MR. ISENBERG : All right, so you were informed that
there was no other record. THE wirNEss: That 's correct " Amidon did not
CENTRAL SOYA OF CANTON, INC.
Maness was asked about the manner in which
Respondent generally receives registered or certified mail.
His reply was, in part:
Normally, Madam Trial Examiner, we don't get too
much registered mail in the first place. The best I can
recall, it's generally when the union is involved and
petitioning for an election. The normal routine, when
this happens, is for them to place a card in our Post
Office box 551, and then we normally have to take this
card and present it at the window, sign the receipt and
get the letter....
This one here, they put a notice in there and when
we went to the window, then we had to sign for it and
received it under that manner... .
The Examiner is administratively advised that the Board's
Regional Office does not serve representation petitions by
registered mail." The "second notice," as photocopied
from the Post Office records, is signed by Yeakley on
behalf of Respondent. At the hearing, the parties
stipulated that the Union's second letter, dated April 2
(discussed below), was sent registered mail, return receipt
requested, and "was delivered or signed for . . . by Frank
Maness," the addressee of both letters.
Yeakley, the mail courier, did not testify, although he
manifestly was the one person who could have stated
definitively whether a "first" notice of arrival had been
found in Respondent's Post Office Box. And he could
have explained why he had signed for the March 7 letter
whereas Maness, who does not go to the Post Office, had
signed the receipt for the April 2 letter.
It was admitted that Respondent was aware of the
Union ' s organizing campaign as early as January or
February. The Company had previously been through two
representation petitions filed by this Union'31 both of
which apparently had been preceded by demands for
recognition.
The Examiner believes that the evidence, taken as a
whole, warrants an inference that Yeakley took a first
notice of arrival of registered mail from Respondent's
Post Office Box but did not present it at the desk and
pick up the mail. Presumptively, as the letter was mailed
from Atlanta on March 7, it would have been received in
the Canton Post Office on March 8 or 9. Since March 9
was a Saturday, and Yeakley does not generally pick mail
up on Saturdays , it may be assumed that the notice was
received by Respondent's representative on Monday,
March 11 , and the Examiner so finds." Since Respondent
knew of the Union's campaign and does not ordinarily
receive registered mail other than Union demands,
Respondent must be charged with knowledge of the
present demand on March 11.
The General Counsel, however, for the purpose of this
proceeding , does not seriously challenge Respondent's
contention and accepts March 18 as the crucial demand
testify on this question.
"Maness also testified that the Canton Post Office is not entirely
consistent in its handling of registered mail. As an example , he pointed to
the fact that the certified letter serving the Examiner 's order of November
27 on Respondent had been placed directly in its Post Office Box, with the
result that Respondent still had in its possession the return receipt attached
thereto . The files of the Division of Trial Examiners confirms the fact that
no return receipt was received from Respondent , although such receipts
were received for the two copies served on Respondent 's counsel.
"The first , in 1965 , was by Allied Workers District Union No. 454,
affiliated with the present petitioner and Charging Party.
"This conclusion would be generally consistent with Scarborough's
testimony that he received the blank return receipt in Atlanta about a week
after he mailed the demand letter.
559
date." Accordingly, in determining the Union's majority
status, the Examiner will look to March 18, 4 days after
the cards were received by the Board, as shown by the
Regional Office's date-stamp on the backs thereof.38
b. The cards
There is no dispute that the appropriate unit contained
approximately 256 employees . 39 The General Counsel
introduced into evidence some 212 authorization cards.
The printed authorization card involved is free of
ambiguity . At the top, in large, boldface capital letters is
the caption:
AUTHORIZATION FOR REPRESENTATION
UNDER THE NATIONAL LABOR RELATION
ACT
The text then reads:
I hereby authorize the AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF
NORTH AMERICA, AFL-CIO,40 to represent me and
bargain collectively with my employer in my behalf and
to negotiate and conclude all agreements concerning
wages, hours, and all other conditions of employment.
I hereby revoke and rescind any power and authority
heretofore executed by me, and declare that this
authorization supersedes any other which I may
previously have given to any person or organization to
represent me for the purposes above set forth. This
authorization shall remain in full force and effect for
one year from date hereof.
There follow lines for identification, date and signatures of
the employee and of a "witness." There is nothing on the
reverse side of the cards except for those which are
mail-back cards and accordingly bear the Union's address
and postage.
All but a few of the 212 executed cards were placed in
evidence during the original hearing and were available to
Respondent during the 6-week adjournment which
occurred before the General Counsel completed his direct
presentation. The General Counsel presented 30 employee
witnesses, including eight who, in addition to executing
cards, had solicited cards from other employees. The
evidence shows that during the adjournment Respondent,
through its counsel and other representatives, interviewed
the cardsigners.'' Respondent then produced 31
cardsigners as witnesses.
In its brief, Respondent directs a variety of objections
to the validity of the cards as authorization of Union
representation. These objections will now be discussed.
"In a footnote to his brief, the General Counsel , repeating a statement
of position made at the hearing , said: "While not conceding that the
Union 's majority status could not be found prior to the receipt of the
Union 's March 7 demand on March 18 , it is clear that the Union had a
majority during the week ending March 23." (Emphasis in the original.)
"The details of the evidence concerning Respondent's receipt of the
demand, however , have been set forth because deemed relevant to the
question of Respondent 's good or bad faith. See discussion below.
"The tally of ballots for the May 3 election puts the number of eligible
voters at approximately 256 Respondent 's payroll for the week ended
March 23 lists 277 employees, but it does not disclose how many , if any,
are outside the bargaining unit.
"The mail-back cards designate the "Allied Workers District Union 454,
A.M.C. & B. W. of N. A., AFL-CIO." The text is identical . There is no
question as to the identity of the Union.
OR appears that all the cardsigners were asked to give interviews While
a few may have declined most of them apparently acceded to the request.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Authentication
Each of the cards was authenticated by the signer
personally and/or the solicitor who actually saw the card
signed or to whom the executed card was given by the
signer . Board precedent clearly requires rejection of
Respondent's initial contention that all authorization cards
must be rejected which except those "witnesses identified
their own signatures on cards." Similarly, there is no
merit in Respondent's attack on 26 listed cards which
were "not signed in presence of identifying witnesses."'=
The Board has consistently held that a card may be
admitted on the authentication of a person who saw the
card being executed or a person to whom the executed
card was delivered. Mc Ewan Mfg. Co., 172 NLRB No.
99. All the cards introduced into evidence without the
personal appearance of the signer were so authenticated.
In a few instances, which it is unnecessary to discuss in
detail, the solicitors apparently inaccurately testified as to
whether a particular card was signed in his presence or
delivered to him already executed. The few discrepancies
of this type are entirely understandable in view of the
large number of cards solicited by Wesley Williams,
Dorothy Martin, Eloise Foster and Irene Williams.
Similarly, the solicitors in some cases could not properly
recall the cardsigners. This also is understandable because
the solicitors did not know all the employees personally.
The Examiner attaches no significance to these minor
errors except as to two cards, discussed below, on which
the signatures have not been shown to be genuine.
(2) Alleged "forgery"
Respondent lists 11 cards under the heading "Cards
with Forged Signatures." The relevant evidence as to each
of these cards is as follows.
Bessie Setser, called as a witness by Respondent
testified that she told her husband, Leon Setser, he could
sign a card for her "if he wanted to."
Called as a witness by Respondent, Martha Holden
testified as follows on cross-examination:
Q. I show you the card that you just looked at,
General Counsel's Exhibit 4, do you recognize any of
the handwriting on that card?
A. That's my husband's handwriting.
Q. . . . And this card was filled out by your husband
after you asked him to fill it out for you?
A. Yes, sir.
Called by Respondent, Edna Little testified on
cross-examination as follows:
Q. Was it around that period of time that you told
Zula Wilson to sign your name on a card?
A. Yes, sir.
Q. Did you see her sign the card?
A. Well, I was sitting in the backseat and she was
sitting in the front seat. I was eating lunch.
s s s s •
Q. And you told this person to fill the card out for
you?
A. Yes, sir.
Thelma King corroborated the testimony of Eloise
Foster that King asked Foster to execute a card for her
"It should be noted that several of the cards so listed were identified by
the signers as having been signed by them or on their request or
authorization . As is true with other of Respondent 's objections, this list is
in part duplicative of other numerations.
because King cannot write. Foster testified that King had
put her "X" on the card; King denied that. It is
unnecessary to resolve this conflict, since there is no
dispute that King authorized execution of the card."
Called by Respondent, Charlie Dover testified, on
direct examination, as follows:
Q. (By Mr. Strauss): Did someone solicit, ask you to
sign a card?
A. Yes, sir.
Q. Who was that?
A. Jimmy Dover.
Q. Would you state the circumstances surrounding
his request to you to sign the card?
A. He just said they had some union cards to pass
out and asked me did I believe in a union, and I told
him yeah, and he asked me did I want to sign one, and
I told him I couldn't sign, for him to sign for me.
To designate the cards of Bessie Setser, Martha
Holden, Edna Little, Thelma King and Charlie Dover as
"forgeries" is, at the least, inaccurate. The persons named
clearly authorized execution of the cards and it is
hornbook law that "wherever authority is given to sign the
name of another to a writing, there can be no forgery." 36
Am. Jur. 2d 685.
Produced as a witness for Respondent, Julia Newberry
identified her signature appearing on the line of the card
prefixed "Name." The line prefixed "Signature" bore her
name in printing. She testified: "I signed my name but I
didn't read the card and I didn't do a thing in the world, I
mean, that's all I know."
On direct examination by Respondent's counsel, Ednia
Goforth testified that she had written her name on the
"Name" line of the card, but had not filled in the rest of
the card or signed on the bottom "Signature" line.
Neither reason nor authority supports calling a card a
"forgery" because the employee affixed his signature on a
line other than that designated "Signature." The facts are
that both Julia Newberry and Ednia Goforth actually
signed the cards which were placed in evidence as their
authorization for Union representation.
On direct examination by Respondent, Wanda Joyce
Dover identified the words "Wanda Joyce" on the
Signature line of her authorization card as being in her
handwriting. She believed, however, that the word
"Dover" was not in her handwriting. Her testimony was.
Q. (By Mr. Strauss): You put the words "Wanda
Joyce" on in your handwriting, is that right?
A. Yes, sir, I did.
Q. But your testimony is that the word "Dover" was
not put on this card by you?
A No, sir, I don't make my D's or O's or nothing
like that.
Q. You're sure of that?
A. Well, I'm not sure, I could have been in a hurry,
but it don't look like mine. I'm not sure of it. I was in
a hurry because we was fixing to go back to work.
Q. But you wrote "Wanda" and "Joyce"?
A. The "Wanda Joyce" is mine.
Thus, employee Dover herself wrote on the card
sufficiently to establish that it was her act. That somebody
else might have completed the name, obviously for the
"King 's card , however, is being excluded because her name does not
appear on the payroll for the week ended March 23. See below. Because of
this, it is unnecessary to pass on Respondent 's contention that King was
subjected to "flagrant abuse and deception " by the solicitor . However,
because of the gravity of the accusation, the Examiner believes it
appropriate to state that it is not supported by credible evidence
CENTRAL SOYA OF CANTON, INC.
purpose of adequate identification, scarcely warrants an
accusation of "forgery."
Employee Dorothy Martin testified that she had asked
Jimmie Sue Foster to sign a card; Foster said she would
"be proud to"; Foster took a blank card and about a
week later returned it to Martin filled out. The card in
evidence, however, does not appear to be in Foster's
handwriting and Foster, who was called as a witness by
Respondent, said that it was not executed by her. But
Foster testified unequivocally that she signed a card at
Dorothy Martin's request. Her testimony on direct
examination was as follows:
Q. Were you. . . in February or March 1968, asked
to sign a union authorization card?
A. Yes.
Q. Do you recall who asked you to sign it?
A. Yes, Dorothy Martin.
Q. And did you sign such a card?
A. Yes.
She testified further that after executing the card she gave
it to Dorothy Martin. And on cross-examination she
stated that the card she signed was identical to the one in
evidence.
It is thus clear that Jimmie Sue Foster did sign an
authorization card and gave the executed card to a
solicitor for transmission to the Union. The record
contains no explanation of the fact that the card
introduced into evidence apparently was not the one
Foster signed. It is perhaps reasonable to conjecture that
the original card was accidentally lost or somehow
mutilated and a duplicate was prepared. Certainly the
card introduced cannot be considered a "forgery " since it
accurately reflected the fact." It is clear that "where one
makes or alters an instrument in good faith, with an
honest belief in his authority to do so, he is not guilty of
forgery. . . . Fraudulent intent is of the essence of
forgery." 36 Am. Jur. 2d 695.
The authenticity of the cards purportedly signed by
Willard Rampley and Violet Gravely is seriously
questionable.
Dorothy Martin testified that Rampley had signed a
card in Martin's presence. Rampley denied that she had
signed a card. While on the stand, Rampley signed her
name on a piece of paper which was then introduced into
evidence by the General Counsel. Although the Examiner
does not profess to being a handwriting expert, it is her
opinion that the signature on the Union card in question
was not written by Rampley.
James Cagle testified that he had given a card to
Gravely, who returned it to him filled in the next day. On
cross-examination of Cagle, Respondent introduced into
evidence a pre-trial affidavit Cagle had given to a Board
agent. The affidavit stated that Cagle had personally seen
Gravely sign her card. Cagle testified that he was in error
when he gave the affidavit and had realized his error just
before taking the stand, when he reviewed the cards he
had solicited. Gravely, called by Respondent at the
resumed hearing, denied that she had signed a Union
card. She testified that Cagle had asked her to sign one
but she had refused. She also said that Cagle had had
some cards in his hand at the time, but she did not take
any. The General Counsel introduced into evidence a sheet
of paper on which Gravely had signed her name while a
"Having produced Jimmie Sue Foster as a witness, Respond.nt cannot
and did not attempt to impeach her or contradict her testimony that she
had signed a card.
561
witness. It is the Examiner's opinion that the signature on
the card in issue was not executed by Gravely.
In view of the evidence, the Examiner finds that the
cards of Rampley and Gravely were not shown to be valid
and therefore they will not be counted in determining the
Union's status.4S However, the evidence clearly establishes
the authenticity of the nine other cards which Respondent
describes as bearing "forged signatures."
(3) Failure to read cards
Respondent's brief next lists 43 cards which it argues
should be disregarded as "Cards Not Read Before They
Were Signed." Respondent contends that the
unambiguous language of the card is not afforded major
significance "when an employee has not read the card."
In support of this contention, Respondent cites two
Board decisions. These do not support Respondent's
position. In Jas. H. Matthew & Co., 149 NLRB 161, 162,
the Board rejected a card because the employee was
"unable to read and he signed his card only because union
adherents soliciting him, who did not read the card to
him, told him that the purpose of the card was to bring
about an election." Similarly, in Trend Mills. Inc., 154
NLRB 143, some cards were rejected because the signers
"did not read the cards, and authorized other employees
to sign on their behalf after being told merely that the
cards would be used to secure an election in the plant"
and others were told "that the only purpose of the cards
which they signed was to authorize the holding of an
election."
. Respondent here was afforded full opportunity to
establish any representations that had been made to the
employees when their cards were solicited. Indeed, during
the six weeks' adjournment of the present hearing, after
all but two of the cards had been introduced into evidence,
Respondent's counsel addressed the assembled employees,
and employees and ex-employees whose cards had been
introduced were later interviewed individually by
Respondent's counsel and/or other representatives. A
mimeographed questionnaire form was used, on which the
interviewers noted the employees' answers to specified
questions, including inquiry concerning the employees'
subjective understanding of the cards, but, perhaps
significantly, not inquiring whether the person read the
card. Despite this procedure, Respondent now lists only 13
"unread" cards which are claimed to be "invalid because
of signer's understanding of card's purpose." This
contrasts with the total of 9206 "cards not read before they
were signed." These figures strongly confirm the
conclusion that failure to read a card bears no
demonstrable relationship to the accuracy or completeness
of the signer's understanding. 47
"At the hearing , Respondent's counsel requested that these cards "and
any other matters similar which may come up" be referred "to the
Department of Justice for investigation." The Examiner leaves to the
Board a determination of whether the evidence concerning these cards or
other inconsistencies and conflicts in the evidence, some of which have
been set forth in this Decision , warrant investigation by the Department of
Justice.
"The figure 92 represents the 43 cards specifically listed plus "all cards
identified by Irene Williams ," which Respondent contends "should be
disqualified because of her testimony that none of the individuals she
solicited read the card before signing it." While Irene Williams did testify
that she "didn't see none of them reading the cards," she later said that
"Lots of them" had "glanced over" the cards but she did not "know
whether they was reading it or not "
"As is shown below, the record , including Respondent 's offers of proof,
fails to establish any substantial misunderstanding.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As recently said by the Board in McEwen Mfg.. Co.,
172 NLRB No. 99 , fn. 33:
. in the absence of evidence that they were prevented
from doing so , we find it immaterial that a number of
the employees herein testified that they did not read the
card before signing it . In any event , it seems
inconceivable that in a campaign as vigorous as that
carried on in this situation by both the Union and the
Respondent the employees would be unaware of the
nature of cards that were being distributed and they
were being asked to sign . . . While evidence that an
employee had read the card would obviously buttress
the presumption that a person knows what he is doing
when he takes the affirmative step of signing a card, the
converse is not true. Perhaps the most obvious and
usual reason for a person's not reading a card (or, in
the case of an illiterate, for not having it read to him)
before signing is that he is familiar with its terms and
purpose.
The following analysis of the evidence concerning some
of the unread cards listed by. Respondent provides
demonstration, if any is needed, that an employee's failure
to read the card signifies nothing as to his understanding
or intention.
Georgia Barron admittedly did not read the card she
signed. But Barron was one of the nine employees who on
April 23 left work rather than remove their Union badges
and continued thereafter to wear the badges up to the
time of the election.
Irene Williams, another "non-reader" whose card
Respondent would have the Examiner disregard, was one
of the Union' s organizing committee and a chief solicitor,
being responsible for over 50 of the cards introduced into
evidence. She testified that she did not need to read the
card because " I knowed it was." In soliciting cards, Irene
Williams asked the employees if they would like to sign a
"union card" and told them that it was "for representing
the Union."
Respondent also lists William Montgomery . In answer
to a question by Respondent's counsel, Montgomery
testified that he did read the card before he signed it. In
any event, he was the solicitor for about nine other cards
and testified that in soliciting he told each employee "that
I would like for her [or him] to fill out a card to help
bring in the Union so we could have better working
conditions." He denied that any mention was made of an
election.
Respondent also challenges the card of Dorothy Martin
because she did not read it before signing. Dorothy
Martin also was a solicitor , being responsible for some 14
cards. She testified that in soliciting she mentioned higher
wages and better working conditions and, when asked,
said she did not know whether they would have an
election - "that we were just trying to get enough cards
signed to see if we could get the Union." Similar
testimony was given by Hazel White who authenticated 11
cards that she had solicited.
Respondent also lists Doris Fennell. Fennell did testify
that she did not read the card, but she also testified that
her card was solicited by Dorothy Martin, who said only
that "they were trying to get the union in" and did not
mention an election.
Beulah Holloway also failed to read the card, except
"the top of it up there where it said Union." On
cross-examination by Respondent' s counsel, Holloway
testified:
A. Well, [Helen Abernathy] just asked me if I would
sign a Union card. She said, "I have some." And I
said, "Yeah; whenever I get time." So then after a
while, then, I happened to be in the bathroom, and she
come in the bathroom, and she asked me if I would
sign it , and I said, "Yeah," so she handed it to me and
I signed it.
Q. Did Helen say anything about an election when
she gave it to you.
A. No; huh-uh. That wasn' t mentioned . All she
asked me was would I sign a Union card and I told her
Yes. That's all that was asked.
Jimmy Weaver did not read the card because he cannot
read very well. However, Cagle explained the card.
Weaver's testimony was:
Well, [Cagle] just said that they wanted to get that in
and it would be better working conditions, and that's
about all, you know. We talked about first one thing
and then another.
Q. Did he say anything about an election?
A. No, sir, if he did I didn't hear a thing about it.
Martha Holden, a witness for Respondent, testified that
the person who gave her a card did not say anything
about it at the time. Holden took the card home, where
her husband executed it for her at her request. Counsel
did not attempt to inquire concerning Holden's
"understanding" of the purpose of the card and made no
offer of proof in this connection.
Rachel Woodall, an ex-employee, called by
Respondent, testified that she had not read the card. On
direct examination, Woodall indicated that Irene
Williams, the solicitor, had told her only that the card was
for the purpose of securing an election. On
cross-examination, however, Woodall testified as follows:
Q. Did [Irene Williams] say anything to you about
getting better working conditions in the plant?
A. Yeah, like maybe, you know, uniforms furnished,
or something like that, but I just can't remember.
On further cross-examination, she disclosed that she had
been called into the plant and required to see
Respondent's counsel; in her words, "we all, the ones that
signed them had to talk to him." She then testified
concerning her interview by Respondent's counsel as
follows:
They just asked me if I signed it and why, about the
work. I remember telling them it was on account of the
better working conditions and just a few little things.
Thereafter Respondent's counsel was sworn as a witness
and identified notes of an interview with Woodall. The
written and oral evidence showed that at the interview
conducted by counsel on December 11, in answer to the
question: "Was anything said to you about the purpose of
the card before you signed?", Woodall had said
"Conditions would be better" and on December 19, the
day on which she testified, she told cocounsel that "They
needed so many cards to get an election." On December
l l she had answered "No" to the question: "Were you
told at any time that the Union would use your card to
establish a Union in the plant without an election?"
However, on December 19, Respondent's co-counsel, on
reinterview, crossed out the "No" and wrote: "Told if
they got enough would not need election." Thus Woodall's
failure to read the card did not prevent her securing
accurate information, as revealed in her statement to
Respondent's counsel.
CENTRAL SOYA OF CANTON, INC. 563
Ironically, at one point Respondent's evidence tended to
establish that "reading" was far from a guarantee of
reliability. Respondent called Ruth Benefield as a witness.
When, on direct examination, Benefield testified that she
had signed a Union card and identified her signature,
Respondent's counsel, claiming surprise, was permitted to
cross-examine her. The cross-examination disclosed that
she had been interviewed by Respondent's representatives,
who recorded her answers to the questionnaire, which she
then signed. She testified:
Q. And before you signed this piece of paper, were
you asked to read it?
A. Well, I don't actually remember, but he got up
and come over there where 1 was at and went over it
with me and said he wanted to know if it would be
right. And then I was scared and I didn't know what
was coming on so I sat there before I signed it, and
so, finally I signed it. They went over it with me, yes.
The "surprise" expressed by Respondent's counsel when
Benefield acknowledged her signature on the card was
apparently based on a notation on the questionnaire
reading "The signature on the card is not mine." [sic]
However, the interview report also states that she "said
she did" sign a Union card "at plant cafeteria" and that
other people were present when she signed. Her signature
on the interview form appears to be in the same
handwriting as the two on the Union card."
Multiplication of examples of "unread cards" would
serve no useful purpose. Suffice it to say that nothing in
the present record casts any doubt on the propriety of
ascribing no decisive effect to the bare fact that an
employee did not read the Union card before he signed it.
(4) "Election" talk
Respondent next lists 25 "Cards Invalid Because of
'Election' Talk." Apparently advertently, Respondent
refrains from presenting the issue as revolving around the
presence or absence of misrepresentation by the persons
soliciting cards. Respondent says: ". . . the Board now
looks to 'the totality of circumstances surrounding the
card solicitation' to determine whether the card was
signed 'for no purpose other than to help get an election.'
Levi Strauss & Co., 172 NLRB No. 99, fn. 7." This
truncated quotation from Levi Strauss misstates the
Board's rule. The Board has held that the validity of a
card depends not on the signer's intention but rather on
whether the surrounding circumstances "add up to an
assurance to the card signer that his card will be used for
no purpose other than to help get an election." (Emphasis
supplied.) In the text of Levi Strauss the Board explicitly
repeats its long-held view that "the fact that employees
are told in the course of solicitation that an election is
contemplated, or that a purpose of the card is to make an
election possible, provides in our view insufficient basis in
itself for vitiating unambiguously worded authorization
cards on the theory of misrepresentation." (Emphasis the
"Benefield's ambiguous statements recorded on Respondent's
questionnaire serve as a graphic demonstration of the wisdom of placing
major reliance on the indisputable act of signing an unambiguous card. In
addition to the questions and answers noted in the text , the following
appear : "[Q.] Was anything said to you about the purpose of the card
before you signed? [A.] To get better work & Co. wouldn' t push around. .
.. [Q.] Were you told that the purpose of signing the card was to get an
election'? If so, what was said and by whom? [A.] Could sign card but not
vote for Union.... (Q.] What was your understanding of the purpose for
which the card would be used? [A.] They just kept at me ." Cf. N.L R.B. v
Southbridge Sheet Metal Works. 380 F.2d 851 (C A. 1).
Board's.) It certainly is not the law that an authorization
card is rendered invalid by the mere fact that the word
"election" or "vote" may have been used in conversation
between the solicitor and signer thereof. To quote again
from Levi Strauss.
. . We perceive no valid reason for refusing in a
complaint proceeding to accord the usual probative
value to unambiguous authorization cards simply
because, at the time it still thought it might have a fair
election, a union may have stressed the election use of
the cards rather than the alternative use to which they
were later put.
The Examiner credits the testimony of the solicitors
that generally they did not mention an "election" in
seeking cards. However, except where otherwise
specifically stated, the accuracy of the testimony by
Respondent' witnesses will be assumed for the purpose of
the following analysis of individual cards.
Ted Teems testified originally that at the time he was
given the card, Cagle, the solicitor, said, "That it was to
help get the union in." In answer to the next question,
Teems testified that Cagle said "There would be an
election if there were enough cards signed." Teems read
the card before he signed it. There is no suggestion that he
was told, expressly or impliedly, that the only purpose of
the card was to secure a Board-conducted election.
Bryan Lawson has minimum literacy Before he signed
the card, he read it and his wife read it aloud to him. He
signed the card and his wife filled it out. Wesley Williams,
the solicitor, told Lawson that "it represented the Union
and that there might be an election." In reply, Lawson
said to Williams: "I wanted - I'd sign it, that I wanted
to represent the union is why I signed it." On this
evidence, there can be no doubt of Lawson's having
knowingly designated the Union as his representative.
Leon Setser asked Williams for a card to sign.
Williams testified:
Q. Did you say anything to this man when you gave
him this card?
A. No, sir; he just asked me for a Union card, and I
handed him one. Re said, "I'm going to take it home
and hand it back in 'the morning." I said, "0. K."
A. And he said the election was no good, and that's
what they all say. He wouldn't have took one if -
Q. He said the election was no good when you gave
him a card?
A. No, sir. I said he knew an election wouldn't help
down there because it never would come in with an
election.
Q. What wouldn't come in with an election?
A. The Union.
* * * * *
Q. (By Mr. Strauss) Can you explain any further
what you mean when you said that this man knew that
an election was no good?
A. Well, they tried twice, and he told me several
times the election won't help any.
Q. And you talked about elections?
A. No, sir; I didn't mention that. He done told me
that. He said, "If they go to an election, it will not
come in." I said, "I don't know about that." That's the
words he gave me two or three days before this.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This evidence hardly shows any "misrepresentation" made
to Setser which would cast doubt on the validity of his
card as an authorization for Union representation."
William Jack Cannon, who cannot read or write,
similarly indicated that he was not signing a card to
secure an election His card was executed at his request by
Wesley Williams, who testified:
I filled [Cannon's] card out and asked him if he
understood what it was and he said, "Yes, sir;
representing the Union," because everybody had been
talking about it. He said, "If we have an election, it
wouldn't be no good " So I fixed it.
According to Dorothy Martin, a solicitor, Helen
Abernathy and Julia Newberry asked Martin, after their
cards had been executed, if there was going to be an
election and Martin replied that she did not know.S° Julia
Newberry was later called as a witness by Respondent and
at that time was not examined concerning any" `election'
talk" attendant upon her signing the card She gave no
indication that any "election" representations had been
made to her. Abernathy was not called.
Joanne Dodd read her card before she signed it at the
request of Dorothy Martin. Martin told Dodd that the
card was to "get better wages" and the purpose of the
card "was for the Union." Dodd testified:
Q. Did [Dorothy Martin] say anything at that time
about an election`"
A Yes.
Q. What did she say?
A. She said to get better wages.
Q. Well, what did she say about an election?
A. Well, she said there would be an election.
Q. That there would be an election?
A. (Witness nods affirmatively.)
Q. Later on?
A. Yes.
But at another point Dodd was asked whether she had
voted in the Board election on May 3, to which question
she replied. "I don't remember. I voted February 6th."
February 6 is the date appearing on her card.
It is thus obvious that Dodd's card was not signed in
reliance on any representation that it would be used solely
to secure a subsequent Board elections'
Kenneth Lanier Chambers testified that Cagle, the
solicitor, told him the card "was to vote the Union in for
better working conditions and better pay." In
amplification of the word "vote", Chambers testified
without objection:
Q. Was the signing of that card itself a vote for the
Union?
A. Well, that's the way I understood it. I don't
know
Respondent did not cross-examine Chambers."
Larry H. Hindman signed his card at the request of a
Mr. Taylor, who read the card to Hindman. Hindman
"Leon Setser also executed a card on behalf of his wife , with her
permission
"Martin gave similar testimony concerning Willard Rampley
Respondent does not include Rampley's card in this list because, as seen
above , Rampley denied having signed any card
"Dodd' s card , however , is being excluded because she does not appear to
have been in Respondent 's employ on March 18
"His testimony would meet the rigid standards prescribed by the Fifth
Circuit since it demonstrates that Chambers "did, in effect , do what he
would have done by voting in a Board election " N L R B v. Peterson
Bros . 342 F 2d 221, 224, reaffirmed in N L.R B v. J M. Machinery
Corp., 410 F.2d 587 (C A. 5)
testified:
Q. What did Mr Taylor say when he gave you the
card?
A. He asked me to sign it; would [ loin the Union
Q. Did he tell you what the card was for?
A. He said we would get higher wages in the plant
with the Union.
Q. Did he say anything about an election?
A Yes, sir; he asked me would I vote for it.
Hindman then testified:
Q. (By Mr. Rolnick) On cross-examination you
mentioned something about a vote I would like you to
explain for us, if you will, what you mean by "vote."
Whether this is to be an election, or whether this is to
be the signing of the card as a vote
A He just asked me would I vote for it when the
election come.
Q (By Mr. Rolnick) When you signed the card, were
you told at that time that the only purpose for signing
that card was to get an election?
A. Yes, sir.
Q Were you also told that you were signing the card
to get better wages and working conditions?
Although, in answer to a leading question put by the
General Counsel, Hindman did state that he had been told
that the only purpose of the card was to obtain an
election, the general tenor of his testimony was prounion
and bespoke a commitment for the Union inherent in the
act of signing the card. Like Joanne Dodd and Kenneth
Chambers, Hindman appears to have equated the signing
of the card with "voting" for the Union. It cannot be
concluded that Hindman's card was induced by any
misrepresentation that its only purpose was to support a
petition for a Board election.
James Cagle testified as follows concerning his
solicitation of the card executed by Billy West:
I told him it would help our wages, and better
working conditions. He asked me when the election
would be, and I told him that there would be no
election, if we got enough cards....
On cross and redirect examination Cagle enlarged upon
these statements. He later said that he could not positively
recall whether West had actually asked about an election.
However, Cagle remained adamant that several employees
asked him when the election would be held and he
consistently told them "we wasn't looking for an election,
we were looking for representation .1153
Charlie Dover, called by Respondent, testified that his
nephew, Jimmy Dover, asked him if he believed in the
Union and wanted to sign a card. Charlie replied in the
affirmative and asked Jimmy to execute a card for him
because Charlie could not write On direct examination he
said that Jimmy told him the purpose of the card was
"[t]o have an election to bring in a union." On redirect
examination he testified:
"Cagle's testimony was consistent with the pre-trial affidavit he had
given to a Board agent and which Respondent introduced into evidence for
the announced purpose of impeachment The relevant paragraph of the
affidavit reads "Some of the people asked me when the election was going
to be, and I told them that if we get enough cards signed there will not
have to be an election. I did not tell anybody that the card was for an
election, but if there was an election it would probably be in two or three
months "
CENTRAL SOYA OF CANTON, INC.
Q. Did [Jimmy] say that the only reason he wanted
you to sign was to get an election?
A. He dust asked me did I believe in [the Union],
and I told him yeah.
Elizabeth Ray, called by Respondent, testified as
follows concerning her executing a card:
Another girl [" ] and I were in the plant cafeteria, and
Red Williams and Irene Williams were getting ready to
go home and they asked me had I signed a union card
and I said "no," and they said did I want to and I said
yes. And so we went out to their car and she gave me
one and I signed it.
Q. Do you recall anyone telling you what the
purpose of this card was? ...
THE WITNESS: It was to have an election, to see if the
Union could come in, better working conditions, and
all.
Ray testified that Irene Williams had asked her to sign a
card "so we can hold an election for the Union to come
in.,, However, Ray further testified, without objection:
"Just better working conditions, that was the main reason
I signed it, not for the higher wages or anything.""
Lula Dover, a witness for Respondent, testified that,
because she cannot write, she had Eloise Foster execute a
card for her. On direct examination Dover described the
circumstances as follows:
A. Well, we was just talking about the Union and
getting the election for the Union.
Q. Who was talking?
A. Me and Geraldine Dover, Wanda Dover and
some colored girls.
THE WITNESS: Well, were just talking about the
Union, and so they was all signing cards , and I did too.
Q. (By Mr. Strauss): Do you recall anyone telling
you the purpose of the card before you signed it?
A. Yes, sir. It was to get an election for the Union
Q. And do you recall who told you that?
A. No, we were just talking.
On cross-examination, however, Dover testified:
Q. Who was it that asked you to sign the card?
A. . . . They didn't say, ask me, they just had them
there and so I thought a union might be a pretty good
thing, so I just signed it.
Q. Now, at the time that she asked you to sign the
card , was anything said about getting better wages,
better working conditions in the plant?
A. Yeah. We was all talking about we might get
better wages and things.
Q. At the time that this woman spoke to you, did
she say anything to you about an election?
A. No. We just --
Q.... Did she tell you that she was representing the
union?
A. No.
'The other girl was identified as Patricia Cornett , whose card is dated a
week before Ray's. Cornett did not testify.
"Respondent 's counsel offered to prove that , had Ray been permitted to
answer a question as to her understanding , she "would have testified that it
was her understanding that the purpose of ... her signing the card, was to
get an election . And it was also her understanding that the card would not
be used to bring the union into the plant without an election."
565
Q. Did she tell you that she was trying to get the
union in the plant?
A. Well, yes, sir, she was talking about getting the
union in the plant, and giving out the cards. 96
James A. Barron, Jr., also called as a witness for
Respondent, testified on direct examination that William
Martin asked him to sign a card. Barron proceeded as
follows:
A. The only thing told me was that they was
representing the union, sir.
Q. Would you recall, or can you recall whether
anything else was said about the purpose of this card.
A. They said we'd get it for a voting.
Q Get it for a vote?
A. They said they wanted to bring it to a vote.
On cross-examination, Barron said he thought that in
soliciting the card Martin had said something about the
Union's trying to help get better working conditions.-
On direct examination by Respondent's counsel, Ruth
Champion testified that she could not recall who had
given her the card and asked her to sign it. She further
stated that she did not "remember that they said anything
to her at that time." Counsel then asked whether anything
was said to her at any other time, to which the witness
replied: "Well, there was talk among the people, dust talk,
wanting to sign the cards." Toward the end of her
cross-examination, she said she did not "remember
anything that was said" and did not remember whether
the person who solicited her card had said anything. At no
time did Champion testify that she had been told that the
purpose of the card was to secure an election.S"
On direct examination by Respondent's counsel, Betty
H. Crowe testified that Irene and Wesley Williams had
both asked her to sign Union cards on numerous
occasions. Irene Williams had given her the card she
signed . According to Crowe, Irene Williams "just told me
that it was for the purpose of trying to get an election to
see whether the union would come into the plant." On
cross-examination, however, Crowe was unable to recall
much of the conversation because, as she said, she was in
a great hurry to meet her husband at the time Irene
stopped her. Crowe was in so much of a hurry that she
quickly signed her name twice on the card and had Irene
fill out the rest. Crowe conceded, however, that all the
time she was signing the card and apparently providing
the necessary information, Irene continued to talk to her.
Crowe then said that to the best of her recollection Irene
"was talking about working at the plant. Talking about
what changes the union would make, and so on and so
forth, but I can't remember much about what changes she
said there would be."59
"Respondent's counsel offered to prove that if the witness had been
permitted to testify as to her understanding of the purpose of the card, she
would have said that it was "to get an election , and she understood
further , that the card would not be used to bring the Union into the plant
without an election ." The Examiner asked counsel if the word "election"
as used in his offer of proof referred specifically to a Board-conducted
election. Counsel replied "No, I don't mean an NLRB election, I mean an
election I don't know whether she would say NLRB election or not "
"Respondent 's counsel offered to prove that, if permitted, Barron would
have testified that his understanding of the purpose of the card was- "To
get the union in by a vote ." Counsel disclaimed any offer to prove that
Barron referred specifically to an NLRB election.
"On the General Counsel's objection, the Examiner struck Champion's
testimony that "they were wanting us to sign where they could have an
election was my understanding." Respondent's counsel offered to prove
that , if permitted , the witness would have testified that her understanding
of the purpose of the card was. "To have an election."
"Counsel offered to prove that Crowe would have testified that she
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary Holcombe testified on direct examination that
Stella Chatten (who is no longer employed by
Respondent) gave her the card and at the time "asked me
if I wanted a union card, I think, if I was for the union or
interested in the union." Holcombe replied that she did
not know, but took the card. She then testified that
Chatten told her "that they were going to try and vote a
union in ." Holcombe had the card in her possession for
about three weeks before she signed it and turned it in.
Although she testified that she did not sit down and read
this card, she acknowledged that she had probably read
other cards, including the cards used by this Union at the
Gold Kist plant, where she had previously worked. On
cross-examination by Union counsel, in explanation of the
delay of some three weeks between receiving and
executing the card, Holcombe testified:
A. Yes, I was concerned, I just wasn't sure, you
know, as to whether I wanted to vote for the union or
whether I didn't. I was just sliding around until I made
up my own mind.
Q. Then it was not until you made up your own
mind that you were for the union that you signed the
card?
A. Yes. [60 ]
James H. Crowe testified that he got his card from
Eddie Martin, who told him "That [i]t would bring an
election for - In other words, where we could have an
election later." On cross-examination by the General
Counsel, Crowe said he had read the card before signing
it. The card is signed by Wesley Williams as witness and
Williams testified that he solicited Crowe's card. Williams
also testified that Crowe had read the card before signing.
The Examiner believes that Williams' is the accurate
recollection. In any event, it cannot be found that the
solicitor, whether Williams or Martin, misrepresented the
purpose of the card as being solely to secure an election."
Helen McClure, on direct examination by Respondent's
counsel, testified that she had signed a card at the request
of Irene Williams. Her testimony then continued:
Q....Now when Irene Williams gave you this card,
what did she say to you?
A. Well, she wanted me to sign this card, you know,
if I wanted to, where they could help, you know, get
several cards together where we could have an election
later on, and everything.
Q. Did Irene Williams talk to you about an election?
A. No, we had talked about it, you know, there at
the plant and everything. She talked to me about it,
you know, some of them had and then her too, and she
wanted to know if I would, you know, sign.
Q. Yes?
A. And I told her, well, I'd think about it. And then
that afternoon I told her that I would, you know, sign
it.
Q. Well, specifically, what did Mrs. Williams say
was the purpose of this card that you signed?
A. Well, where later on we could have an election.
See, if we got several cards, just a few probably
wouldn't do no good, but if we could get several cards
signed, then maybe later on we could have an election
and everything.
understood the purpose of the card was "To help get an election."
"Respondent 's offer of proof as to Holcombe was that if she had been
asked "as to her understanding of the purpose of the card she signed, she
would have said . `There would have to be a vote.' "
"Respondent offered to prove that , if permitted , Crowe would have
testified "that it was his understanding that the purpose of the card which
he signed was 'To get an election.' "
Although McClure's testimony was, in the words of
Respondent's counsel, "confusing," she appears to have
testified that all the "election talk" occurred after she
signed her card. She had voted in two previous elections,
but on neither occasion had she signed a card. In this
connection she testified:
This is the first time I ever signed one, and that's
the reason I took my time about signing it, because I
had never, you know, and I had never worked under
one, and I didn't know anything about it.... 61
Estell Sweat could not recall from whom she had got
her card or who had asked her to sign. When asked by
Respondent's counsel on direct examination what had
been said when she obtained her card, Sweat replied:
Well, I don't know whether it was the one that give the
card to me that said it, or who it was talking, there was
so many running around, you know, for that, trying to
get it in, somebody, though, told me that it was to get
the union in at the gate, I think, so we could have an
election.
She could not recall whether anything had been said to
her at the time she got the card. She took the card home
and turned it in, executed, the next day."
Mary Lois Ghorley, testifying on behalf of Respondent,
stated that she had received her card from W. T. Wright.
On direct examination she said:
Q. Now when Mr. Wright gave you the card, did he
say anything?
A. I don't remember.
Q. Did he explain the card to you?
A. Nothing only just an election.
She conceded that she "knew it was a union card" and
that she had signed a Union card before." At first she
would recall nothing more that had been said to her. But
eventually she recalled that Wright had spoken of getting
better working conditions but she did not remember when
he did so.66
Rachel Woodall's testimony has been discussed above.
The evidence shows that Woodall informed Respondent's
counsel that she had been "told if they got enough [they]
would not need election. "66
Mary Alice Cronin testified that she had been given
cards by Wesley Williams and Elizabeth Wright, both of
whom asked her to sign "so they would have an election.
You know, where they could get an election for the
union. To have an election with the company . . . where
"Respondent offered to prove that McClure would have testified "that it
was her understanding that the purpose of the union authorization card she
signed was: 'To get the union in by a vote.' "
"Respondent's offer of proof in this instance was that Sweat understood
that the purpose of the card was: "To get union down here to get an
election , so it could be voted in "
"Under cross-examination , Ghorley became visibly upset and succumbed
to tears. The Examiner rejected the contention by Respondent's counsel
that the witness was being "badgered" and here reaffirms that rejection.
"Respondent offered to prove that Ghorley would have testified that she
understood the purpose of the card to be: "To vote the union in."
"Counsel for Respondent offered to prove that Woodall "would have
testified that her understanding of the purpose of the card which she signed
was exactly as it appears in my handwriting on Respondent ' s Exhibit 15."
Counsel's reference is to the statement "Get so many to have an election"
in answer to the question "What was your understanding of the purpose
for which the card would be used?" However , counsel does not refer to her
answers to prior questions in the questionnaire, discussed above, which
establish that she was fully and correctly advised of the purpose of the
card.
CENTRAL SOYA OF CANTON, INC. 567
they could get an election, to vote for the union." She
misplaced the first of these cards and signed the
replacement given her. She further testified that Williams
"said it would better us, that we would get a raise and
more help, you know, if we had been there longer, our
jobs, apply for, you know, if we wanted it." At that point
she said she did not recall whether Williams had made
these statements before she signed the card, but she had
earlier testified that it was "after we signed the cards"
that Williams had spoken about trying to get better
working conditions Although Cronin's testimony is
somewhat confused, the Examiner finds that she was told
that the card was, in Cronin's words, to "get an election,
to vote for the Union."67
Hazel Wofford testified that Irene Williams had told
her that the purpose of the card was "just to get an
election" and that Wofford's signing the card would not
mean that she had to vote for the Union at the election.
Wofford conceded that Williams had also spoken of better
wages and working conditions but maintained that such
statements had been made after Wofford executed the
card 68 While the Examiner was not favorably impressed
by Wofford's demeanor, the accuracy of her testimony
will be assumed. Accordingly, her card will not be deemed
a valid authorization of the Union.
Bertha Ray testified that three people repeatedly asked
her to sign a Union card and consistently told her it was
to secure an election. According to her, no other reason
for the card was ever mentioned and she did not read the
card She further stated that at least two of the solicitors
assured her that she would not have to vote for the Union
if there was an election Assuming the truth of this
testimony, the Examiner will find the card invalid because
solicited on an implied representation that signing it did
not amount to authorization for Union representation.69
Analysis of the 25 cards which Respondent alleges were
"invalid because of 'election' talk" shows two (Hazel
Wofford's and Bertha Ray's) as to which a finding is
warranted that they might have been induced by an
express or implied representation that their only purpose
was to secure an election
In addition to the cards specifically enumerated,
Respondent contends that all cards solicited by Dorothy
and William Martin should be disregarded because of
" `election' talk."
Scarborough, the Union's general organizer, testified
that in instructing the employee-solicitors he "made it
very clear to all of them that these cards were being
signed for union representation, for wages, hours and
working conditions " He told them that he wanted 80
percent of the employees signed, and then he would
request recognition and offer the employer an independent
card check He stated that the question of an election had
been raised by solicitors but he "told them absolutely iot.
We were after recognition with a majority of the cards."
The organizing campaign was initiated by William
Martin, who telephoned Mary Katz, a U.iion organizer,
for help in getting the Union into the plant to secure
better wages and working conditions. Katz spoke to a few
of the employees at the home of one of them. Dorothy
"Counsel offered to prove that Cronin would testify that she understood
the purpose of the card to be "To get an election "
"Respondent offered to prove that Wofford would have testified that she
understood the purpose of signing the card was "So that we could vote on
the Union."
"Respondent 's counsel offered to prove that , if permitted , Bertha Ray
would have testified " that it was her understanding that the purpose of the
card she signed was 'To have an election to bring it to a vote' "
Martin testified that Katz asked them "did we want to try
to get the cards signed, to see if we could get the Union "
Katz did not speak to them about an election. Martin
testified that Katz instructed them, in soliciting cards,
simply to tell the employees that she "was trying to get a
Union for better hours and better pay." Martin testified
that she followed these instructions. She did not mention a
possible election, and, if asked whether there would be an
election, she replied that she did not know.
William Martin is functionally illiterate His testimony
indicates that he believed that the signing of the card itself
constituted "voting for" the Union, as is shown in the
following excerpts
A. . . I told them that it was for the Union for an
election, to get the Union in. As to whether it was for
the election, or just how it was, I don't remember, but I
do believe I took it for granted they ought to know
what they was for. They was fo, the Union.
Q You told them it was for the Union?
A. For the Union.
Q Did you tell them at any time that the only
purpose of these cards was to get an election?
A No; I didn't.
A. Well, I told them it was for the Union. There
could be an election - or for the Union. I figured they
ought to know what it was for They had been through
it before And I just figured they ought to know what it
was for. I don't remember what it was I talked to
them
Q. What do you mean when you say they had been
through it before?
A. Well, they had had two tries at it before
Q Two elections?
A. I don't know - I reckon it would be elections
They had tried it.
* * * *
Q Did you go up to some -- to these people and
say, "Here is a card" Is that what you said9
A. Well, like I just told you, I don't remember
exactly. But I do know they had been through it before
and they were supposed to know what it - I figured
they knew what it was all for, anyhow
In a pretrial affidavit given to a Board agent, William
Martin had said
I had some blank cards that I got from Mary Katz, and
I gave them to employees in the plant and asked them
to sign them I ain't for sure what I told them, but I
think I told them to sign the cards for a majority to get
an election.
While Mr Martin's testimony was not a model of
clarity, it would be impossible to conclude that the nine
employees whose cards he authenticated were misled by
him into thinking that the cards could be used only to
support a petition for an election. Respondent produced
only one of these nine cardsigners.
The Examiner finds that no misrepresentation has been
shown warranting rejection of the cards solicited by
William Martin.
In general, the evidence indicates that the major appeal
made to the employees was the prospect of better wages
and working conditions through the Union The solicitors
did not take the initiative in mentioning a possible
election. However, there appears to have been
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerable speculation among the employees themselves
as to the possibility of an election. Such "election talk"
arose from the fact, heretofore mentioned, that there had
been two Board elections at the plant within the previous
two years This history may well have led some employees
to anticipate that the current campaign might result in an
election. By the same token, the past experience led the
solicitors, on instruction by the Union organizers, to
refrain from promising or predicting a Board-conducted
election Although there were over 200 signed cards in
evidence, only two cardsigners said they had been assured
a future election at which they could vote against the
Union despite their having signed cards 70
On all the evidence, the Examiner concludes that only
the cards of Hazel Wofford and Bertha Ray may be
discounted as having been influenced by misrepresentation
as to their purpose.
(5) Subjective understanding
Respondent next lists 18 cards allegedly "Invalid
Because of Signer's Understanding of Card's Purpose "
Most of this list is duplicative of that just discussed As to
each of the 18 cards, the Examirer refused to permit
Respondent's counsel to ask his witness the question
"What was your understanding of the purpose of the card
you signed?" and counsel then proceeded to make an offer
of proof as to what the witness would have replied. Under
the heading "Card Signer's Understanding of Card's
Purpose Not Allowed to be Shown," Respondent later
lists five additional cards which it is claimed should be
disregarded Respondent objects to the Examiner's ruling
that counsel could not cross-examine the General
Counsel's card witnesses concerning their understanding of
the purpose of the cards
The Board consistently rejects "proof of subjective
intent", holding that "in the absence of clear proof of
fraud or coercion, full effect must be given a clear
authorization card regardless of the subjective state of
mind of the signer " Levi Strauss & Co , supra, 172
NLRB No. 57 See also McEwen Mfg Co, supra, 172
NLRB No. 99, Aero Corp , 149 NLRB 1283, 1291, enfd
363 F.2d 702 (C.A D C ), cert. denied 385 U S. 973 71
Although the Examiner is bound by Board rulings
rather than contrary rulings by Courts of Appeals, it may
be noted that the Second Circuit, which has not been
particularly hospitable to the Board's views in
authorization-card cases, has expressly placed its stamp of
approval on the rule generally excluding testimony as to
subjective intent In N L R B v Pembeck Oil Corp , 404
F.2d 105 (pet. for cert pending), cited by Respondent,
Judge Kaufman, for the court, said
We believe that the Trial Examiner was correct in
concluding that where an authorization card :., clear on
its face, and union representatives have made no
misrepresentations with respect to it, an employee's
thoughts as to what he believed was the purpose to be
served by the card cannot be used to discredit a
majority the Union has legitimately achieved
"In addition , employee Benefield' s questionnaire form, introduced into
evidence by Respondent, reports that she had been told she " could sign
card but not vote for Union " However, it also reports that she said she
had been told that the purpose of the card was "To get better work & Co
wouldn ' t push around "
"Respondent 's survey has not been alleged as violative of the Act in this
proceeding However, questions concerning an employee' s subjective state
of mind may be violative of Section 8(a)(1) Buddy Schoellkopf Products,
Inc, 164 NLRB No 82, TXD, enfd 410 F 2d 82 (C A 5)
Even N L R B v Swan Super Cleaners, Inc , 384 F 2d
609 (C A 6), and N L R B v Lake Butler Apparel Co,
392 F 2d 76 (C A 5), on which Respondent relies, hold
evidence of a cardsigner's subjective intent to be
admissible only when it has been shown that the card was
solicited on the basis of misrepresentations. The
disagreement between the Board and the courts in the
cited cases revolves about what constitutes
misrepresentation by the solicitors. See also N L R B v
J M. Machinery Corp, 410 F 2d 587 (C A 5) 72
(6) Allegedly "Unsigned Cards "
Next in Respondent's arsenal is a list of 5 "Unsigned
Cards " All these cards were properly authenticated as
having been executed on the request and authorization of
persons who could not write, and all were, as Respondent
notes in its brief, "marked with `X ' "
As to two, Wesley Williams credibly testified that the
employees, William Blakenship and William Jack
Cannon, had brought cards to him already executed.
Williams had them affix their "X's" in his presence and
then Williams signed the cards as witness and wrote on
each. "This man cannot wright " Williams filled out a
card at the request of Jack Clark, had Clark affix his
"X," and then wrote on the card "This man cannot
wright "
Irene Williams testified that she had executed a card
for Ralph Holland at his request because he said he could
not read or write. He then put his mark on the card in her
presence and she noted on the card that the employee
could not write."
Eloise Foster executed a card at the request of Lula
Dover The card is signed "Lula Dover By Eloise Foster,"
and Dover's "X" appears thereon in two places.
To hold these cards invalid would be to disenfranchise
illiterates, a result hardly consistent with the Act
(7) Authenticating witnesses
Respondent lists 5 cards "Identified by Someone Other
Than Person Whose Name Appears Thereon as `Witness ' "
Each of these cards was fully identified and
authenticated by the solicitor. The provision for the name
of a "witness" on the authorization card is legal
surplusage, presumably adopted for the convenience of the
Union, to minimize questionable cards and to secure
authentication if subsequently needed Respondent
advances no reason or authority for disregarding cards
properly authenticated by testimony merely because they
bear the name of a witness other than the one who
testifies in authentication 7'
"As shown in footnotes to the prior section of this Decision,
Respondent 's offers of proof generally fail to indicate that the employees
"understood " that the cards did not serve as authorization for Union
representation and could be used only to support a petition for a Board
election
"The name on the card is stated as "Ralph Hallan By Irene Williams"
This misspelling of Holland 's last name obviously is immaterial
"There is no reason to believe that the witnesses named on the cards did
not witness the signatures , along with the authenticating witnesses But
even if that were the fact, it would not serve to undermine the
authentication
CENTRAL SOYA OF CANTON, INC.
(8) Improper dates
Under the heading "Cards Undated or Misdated,"
Respondent lists 12 cards which it says should be
disregarded. The error or incompleteness in the date
appearing on each of these cards was clarified by specific
testimony at the hearing. The evidence leaves no doubt
that they were all signed during the organizing campaign
here involved.
(9) Employee status on demand date
"Card Signer Not Working for Company at Pertinent
Date or Dates" is the heading in its brief for another
group of cards to which Respondent objects. There follows
a list of 5 cards. The parties stipulated that two of the five
employees had left Respondent's employ before the dates
on their cards. But the testimony also showed that in
many instances the date placed on a card was the date on
which it was turned over to the Union by a solicitor,
which was not necessarily the date on which the card was
signed or given to the solicitor by the signer. Thus it
cannot be said that the two persons were not employees
when they executed the cards. However, these cards will
not be counted because the employees had left
Respondent's employ before March 18, which is here
taken as the date of the Union's demand.
The next two cards listed were signed by the employees
the day before they actually started to work. However, it
was shown that employees often were hired on one day to
begin work the next. Further, a Union card is a
continuing authorization. Since these two cardsigners were
working for Respondent when the Union demanded
recognition, their cards are counted as valid.
The fifth card listed is that of "Jerry Newton," and the
explanatory note in Respondent's brief reads "card dated
3-6-68, not on G. C. Exh. 219." "G. C. Exh. 219" is a
payroll list for the week ended March 9, 1968. It is one of
four payroll lists supplied by Respondent and introduced
into evidence by the General Counsel. Respondent is
apparently in error as to Newton, since the name "Jerry
L. Newton" appears on the payroll lists for both March 9
and March 23.76
Respondent then lists 22 employees who it alleges "are
not on payrolls in evidence, particularly" that for March
9. However, as set forth above, the relevant payroll is that
for the week ending March 23.
Two of the names listed by Respondent (Nola Lawson
and Bryan Lawson) do appear on the March 23 list (as
well as the March 9 list.)
The remaining 20 names do not appear on the payroll
list for the week ended March 23. Further, while Thelma
King's name does appear on the March 9 list, it is not
shown on that for March 23.
Although the General Counsel disclaimed responsibility
for the accuracy of the lists and specifically did not
concede that names of employees had not been
erroneously omitted, he made no attempt to show that
employees not listed were actually in Respondent's employ
on the demand date. Accordingly, the Examiner will
exclude the cards of the 23 persons not shown to have
been employed by Respondent during the week of March
23
"On cross-examination by Respondent 's counsel , Newton disclosed that
he was no longer employed by the Company at the time of the hearing but
he was unable to specify the termination date other than that it was in
1968
569
(10) Miscellaneous
Respondent objects to one card because the signature is
illegible and the solicitor was unable to provide the proper
name. Although the evidence does establish that the
person involved was an employee of Respondent when he
signed the card, it does not appear that he was so
employed on March 18. Accordingly, that card will be not
counted.
Finally, Respondent objects to the inclusion of the card
of Steven Voyles on the ground that he was a supervisor
Considerable testimony was adduced on this issue.
However, the Examiner finds it unnecessary to decide
Voyles' status since his card could not be decisive and he
is no longer in Respondent's employ 76
Respondent also asserts that coercion was exercised in
the solicitation of cards. Specific mention is made of
Patricia Ann Manous Her testimony was that she had
been working for Respondent for about a week when
James Cagle, whom she had known slightly for some
time, asked her to sign a card. According to Manous,
Cagle did not explain the card to her but "just said he
wanted me to sign the card because everybody else was
signing and if I didn't they'd call me bad names." She
testified that she had never previously seen a Union card
and did not read this one before signing However, she
later acknowledged that she had read the heading and the
first paragraph of the text, which clearly sets forth the
authorization for Union representation.77 The evidence
thus fails to establish either coercion or the withholding of
information as to Manous' card.
Respondent further claims that cards were solicited by
misrepresentation, referring specifically to the card of
Lillie Bannister, who had signed her card at the request of
Elizabeth Wright. Bannister testified that Wright did not
say anything about the card at the time but Wesley
Williams had previously told her that the reason for
having cards signed was that "they wanted to find out
how many employees there was and what their names
was." She declined to take a card from Williams. She
maintained that in the period of from one to four days
between her conversation with Williams and her
acceptance of the card from Wright, she had not spoken
to anybody about the cards and had not seen any other
employees signing cards. Based on Bannister's demeanor,
the improbability of her testimony, and the testimony of
Williams, the Examiner discredits Bannister's testimony
and finds that no misrepresentation was made by Williams
in connection with her card.78
Respondent also maintains that Myrtle Gramling's card
should be disregarded because of "coercion . and
deception of signer; and signer's lack of knowledge as to
purpose of card." Gramling testified that the solicitor was
insistent, but then she acknowledged that no threats were
made. The nub of Gramling's testimony was:
"Respondent maintains that in the representation proceeding Voyles was
excluded from the unit by agreement of the parties It may be noted that
any such agreement would not be controlling in the present proceeding
The Great Atlantic & Pacific Tea Co, 144 NLRB 1571, 1574 In 2, affd
in pertinent part 346 F 2d 936, 940, fn. 4 (C A 5)
"Respondent offered to prove that , if permitted , Manous would have
testified "that she did not understand the purpose of the card she was
signing , that she had just come to work here , and that she just signed
because 'Cagle told me to'."
"Counsel offered to prove that Bannister would have testified that she
understood the purpose of the card was "To see how many people were
working here "
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. She asked you would you sign this card?
A. That' s all I knew , she never give me no chance to
read nothing . I'm not going to sign another one until I
know why.
Q. I'm asking , when this woman gave you the card,
did she ask you, did she say "would you sign this
card?"
A. I didn' t want to, she kept insisting.
Q. And then you finally signed the card?
A. Because she was in a hurry going off her work
and I had to go on mine.
The evidence does not show either "deception" or
"coercion"; at most, it shows that Gramling did not fully
understand the significance of her signing and has since
had "afterthoughts.""
(11) Conclusion as to majority
The foregoing analysis of Respondent ' s numerous
objections to the authorization cards shows some 30 which
are excludable , around 25 of those having being excluded
because the signers were not shown to have been
employed by Respondent on March 18. Only four are
suspect authenticity or manner of solicitation. The
evidence thus provides no basis for Respondent's
contention that " the overall circumstances" surrounding
the solicitation of the cards requires rejection of the
Union' s claim to majority "without regard to the outcome
of a strict mathematical count."
The mathematical count shows that the Union had been
designated as representative by about 180 employees in a
unit of about 250. The Examiner thus finds that the
Union represented a majority of the unit employees on the
relevant date.
2. The nature of the alleged refusal to bargain
As stated above, the Union first demanded recognition
by letter addressed to Maness on March 7. The Examiner
has found that Respondent knew of the arrival of the
letter by March 11 and, in effect, declined to receive the
demand at that time. The refusal of the letter itself
impugns Respondent ' s good faith . City Electric Co., 164
NLRB No. 116, TXD.
Not having received any reply to his March 7th letter,
even after the petition was filed , Scarborough wrote to
Maness again on April 2. In this letter Scarborough first
referred to his letter of March 7 and then proceeded:
Following your refusal to recognize our Union as the
bargaining agent , we filed a petition with the National
Labor Relations Board to conduct a secret ballot
election in order that your employees can express
without intimidation and coercion their choice for a
bargaining representative.
In order that there can be no question as to your
knowledge of who our members are in your plant, we
are listing them on the attached pages and filing a copy
with the National Labor Relations Board in order that
they can be protected under Section 7 of the Act.
Respondent made no reply to this letter - not even to
inform Scarborough that it had not received the March 7
demand letter.
"Counsel's offer of proof was that Gramling "would have testified that
she did not understand the purpose of the card to which she affixed her
signature."
On April I I the parties entered into a Stipulation for
Certification Upon Consent Election, with the election to
be held on May 3.
To negate the existence of bad faith in its refusal to
bargain , Respondent relies on its agreement to a consent
election and its past experience, which it claims justifiably
made it skeptical of this Union's claims to majority
status.
It is true, as Respondent maintains, that the agreement
to a consent election is one factor weighing in the
employer's favor when he is charged with bad faith refusal
to recognize a majority union. Shelby Williams of
Tennessee, Inc., 165 NLRB No. 108. It is also true that
the Union's prior loss of two elections after having
claimed a majority tends to justify doubt concerning the
validity of its present claim." The Walmac Co., 106
NLRB 1355; Morse Chain Co., 175 NLRB No. 98;
neither of the two factors referred to is necessarily decisive
as to an employer's good or bad faith, an issue which
must be decided on the basis of all the circumstances.
Breaker Confections, Inc., 163 NLRB No. 119, TXD,
enforcement denied in part 402 F.2d 499 (C.A. 4); Pace.
Inc., 167 NLRB No. 160.
At no time did Respondent ever advise the Union of
the doubt it now claims it entertained. On the contrary,
there is affirmative evidence that a representative of
Respondent indicated that it would grant recognition if it
could secure a favorable contract.
Scarborough credibly testified to a conversation he had
a short time before the election with William Dexter,
whom he had met originally at Respondent's plant and
who he thought was an assistant to Chappuis, labor
relations director for Respondent's parent corporation.
Scarborough testified that he had spoken to Dexter for a
few minutes at the plant "concerning the union buttons
and discharges, activity, union activity during working
hours on the company property." Thereafter, Scarborough
and Dexter met and had a drink together at the motel
where they were both staying. Scarborough testified as
follows concerning the conversation which accompanied
the drink:
I asked him why all the problems in Canton,
Georgia. I said ... "your company and our union has
always got along so good together, why the problems
here?", and he said "Well, Mr . Scarborough", he says,
"it's just one of those situations ", and I said "why
don't you go ahead and give me a letter of recognition
and let me withdraw the Petition and let ' s sit down and
work on a contract that both the company and the
Union can live with." And he turned around to me and
he said "Are you ready to take a dive?", and I said
"You must be kidding" .. .
At this time Dexter did not express any doubt on
Respondent's part concerning the Union's majority.
Respondent presented no contradiction of
Scarborough's testimony . Respondent 's position is simply
that Dexter was not a representative authorized to speak
for either Respondent or Respondent 's parent ." Amidon
identified Dexter as "personnel manager at the Decatur,
Indiana operation ." The Examiner takes official notice of
the fact that Decatur is approximately 20 miles from Fort
Wayne , where Respondent's parent corporation is located.
"The votes against the Union were 98 to 77 in a unit of 195 in 1965, and
94 to 67 in a unit of 233 in 1966. The vote in the present election was 109
to 102 against the Union in a unit of 256.
"In its brief Respondent also apparently suggests that the conversation
should be disregarded because it was "embellished with beverages." The
CENTRAL SOYA OF CANTON, INC.
Dexter was sent to help out at the Canton plant during
the pre-election period. As Amidon stated: "This was an
extremely busy period for everyone, I think. And Bill
[Dexter] came down to assist me, primarily in drawing up
and reproducing a lot of these blip sheets that we
distributed during the campaign." At another point
Amidon revealed that it was Dexter who had supplied the
"Vote No" stickers which Respondent had distributed
among the employees. Since the labor relations of all the
affiliated companies are under the overall direction of
Chappuis, it can hardly be said that Dexter, who was
actively assisting in the Canton campaign, did not
represent Respondent and reflect its thinking."S
As previously found, Respondent deferred receiving the
bargaining demand until the Union had already filed a
representation petition. Thus it cannot explain away its
failure to advise the Union of its doubt as to the majority
by the pendency of the representation petition. Further,
although Respondent received service of the representation
petition March 18, it was not until April 11, more than a
week after the Union wrote its second letter, that the
stipulation for consent was made. Contrast Cameo
Lingerie, Inc., 148 NLRB 535, cited by Respondent. In
Cameo the employer offered and the Union rejected a
consent election or an independent card check with some
means for looking into the union's methods of procuring
the authorization cards. In Shelby Williams of Tennessee,
Inc., supra, also cited by Respondent, "promptly after the
Union demanded recognition, the Respondent filed its
petition" for an election. Likewise, in A. L. Gilbert Co.,
110 NLRB 2067, "The record shows that the Respondents
wanted an immediate election, whether conducted by the
Union, themselves, or the Board, to determine the
question of representation," and the union's rejection of
the idea of such an election was itself sufficient to create
in the respondents a doubt as to the validity of the union's
claim of majority in Gilbert. And in Roanoke Public
Warehouse, 72 NLRB 1281, the Union representatives
summarily rejected the employer's proposal for an
election; walked out of the conference with company
representatives without making any further attempt to
reach some modus operandi; and immediately called a
strike vote. In Marr Knitting, Inc., 90 NLRB 479, the
complaint did not allege the respondent's failure to answer
the union's original demand letter as an unfair labor
practice. A week after it received the union's second letter
and the union's representation petition was filed, the
company agreed to a consent election. In holding that bad
faith on the part of the company had not been shown, the
Board emphasized the facts that the respondent had not
engaged in any unfair labor practices after the petition
was filed and had taken affirmative steps to deny remors
that the plant might close if it was unionized. Indiana
Rayon Corp., 151 NLRB 130, also cited by Respondent,
the Board found the employer guilty of bad faith even
though it had agreed to a consent election.
Respondent also cites court decisions. To the extent
that the Board's decisions are to the contrary, in the
absence of a controlling Supreme Court decision, the
Examiner is bound by the Board's views. In any event,
both Montgomery Ward & Co. v. N.L.R.B., 377 F.2d 452
(C.A. 6), and N.L.R.B. v. Dan River Mills, 274 F.2d 381
(C.A. 5), cited by Respondent, are factually
record contains no evidence of intemperate imbibing.
" Cf. N.L.R.B. v. General Metal Products Co., 410 F 2d 473 (C.A. 6),
" in determining the company 's responsibility for the acts of others the
rules of agency shall be given a liberal construction."
571
distinguishable from the present case. In Montgomery
Ward, the company promptly advised the union of its
doubt concerning majority. In Dan River "it was the
Employer's contention then and since - that a great
number of these cards did not represent the voluntary
wishes of such employees." (Emphasis supplied.) In the
present case Chappuis conceded that when he decided not
to communicate with the Union he had no knowledge as
to the methods by which the cards had been solicited and
made no attempt to ascertain whether there was any basis
for questioning their validity. Further, he gave no
consideration whatsoever to the Union's offer of an
impartial card check.
It is true, as Respondent contends, that its rejection of
a demand while refusing a proposed card check "does not,
standing alone, provide an independent basis for
concluding that the instant denial of recognition was
unlawful." Sirydel Inc., 156 NLRB 1185, 1187. However,
refusal of a card check may well serve to throw light on
and corroborate other facts tending to show an absence of
bad faith. Where, as here, refusal to submit to a card
check does not stand alone, it is entitled to some weight in
resolving the "good-faith-doubt" issue. Both the Board
and the courts have attributed considerable weight to an
employer's reply to the union's bargaining demand. See
e.g., The Madison Courier, Inc, 162 NLRB 550, 596-597,
enfd. 67 LRRM 2462 (C.A.D.C.) Hercules Packing
Corp., 163 NLRB No. 35, affd. sub nom. Textile Workers
Union of America v. N.L.R B., 386 F.2d 790, 792, 794
(C.A. 2), cited by Respondent. Complete silence in
response to a bargaining demand and offer of a card
check at least suggests the possibility that a subsequent
claim of good faith doubt "was an afterthought." Textile
Workers Union of America v. N.L.R.B. supra, 386 F.2d
at 792. And in the present case, Respondent remained
silent even after the Union sent it a list of the card
signers. See N.L.R.B. v. Gass, 377 F.2d 438, 443 (C A.
1), enfg. 154 NLRB 728.
Chappuis maintained that if Respondent had replied to
the demand, it would have expressed doubt as to the
Union's majority and insisted upon an election to resolve
the issue. Thus, according to Respondent, a reply would
have been "superfluous" when the demand was received
on March 18, since the Union then had already filed a
representation petition. The Board has expressly rejected
such argument. See McMahon's Sales Co., 167 NLRB
No. 78, TXD. The Union's filing of a representation
petition was not a waiver of its demand. Pace, Inc., 167
NLRB No. 160, TXD. Having expressed no doubt as to
the Union's majority, Respondent had no absolute right to
insist on an election. Vinylex Corp., 160 NLRB 1883,
1884, fn. 3, enfd. 404 F.2d 1200 (C.A. 6).
Respondent's conduct between the Union's demand and
the election is, of course, most revelatory of its attitude.
Relying principally on Aaron Bros. Co., supra, 158
NLRB 1077, Respondent contends that, even if it be
found that Respondent engaged in independent unfair
labor practices, its conduct was not sufficiently aggravated
to warrant a finding of bad faith, i.e., that its unlawful
conduct did not evidence an intention to avoid its
bargaining obligation or to seek time in which to
undermine the Union.
To be sure, Respondent has not committed broad-scale
unfair labor practices. But it is the quality rather than the
quantity of the misconduct which is most significant. A
single independent unfair labor practice may show bad
faith. New Alaska Development Corp., 175 NLRB No.
131, TXD. The requirement that employees remove their
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union badges by itself might well not warrant a finding of
bad faith if Respondent had promptly taken complete
corrective action. However, Respondent did not take such
action. Although the next day the employees were
permitted to return to work wearing their badges and were
thereafter allowed to wear them at work, Respondent
never told them of their right to do so. On the contrary,
Respondent's own evidence establishes that Respondent
studiously avoided making any such statement. At most,
Maness told the employees that the prohibition had been
dropped only because the question was "in a gray area"
and Respondent did not feel it worthwhile to make an
issue of the matter, the needs of production being of
primary importance. Thus, the employees were left with
the impression that the "privilege" of wearing Union
badges was accorded them by the largess or sufferance of
management and, consequently, could be revoked at any
time. And as late as two days before the election Phillips
had repeated the prohibition to two employees.
Even more important is the manner in which
Respondent handled the question of paying the nine
stubborn badge wearers for the time they lost when
clocked out. As of the morning of May 3, it was
graphically clear to the employees that wearing Union
badges, even though now tolerated by management, could
be costly. When the employees voted in the election the
nine employees had been "docked" pay for refusing to
remove their badges on April 23. Respondent's purpose in
the handling the matter this way cannot be seriously in
doubt , since , as previously noted, on April 24 Chappuis
had instructed Maness to pay the employees for the lost
time."
Also indicating that Respondent was "unwilling to
permit the question concerning representation involved
herein to be resolved in a fair election free from employer
interference" (Indiana Rayon Corp., supra. 151 NLRB at
137) is the discriminatory no-distribution rule which
Walker orally announced to the Union's chief solicitor in
the presence of other employees.
Additionally, it was about the same time that Dexter
revealed to Scarborough the underlying reason for the
refusal to recognize the Union. While Dexter's statement
is not alleged or found to be an unfair labor practice, it is
clearly probative evidence of Respondent' s motivation, the
crucial issue presented. As said in Aaron Bros. Co., supra,
158 NLRB at 1079: "[a]n employer's bad faith may also
be demonstrated by a course of conduct which does not
constitute an unfair labor practice."
Respondent' s continuing unwillingness to leave the
matter of representation to the free choice of the
employees is demonstrated further by the adoption of an
illegally broad no-solicitation and no -distribution rule in
September, after the Board had directed a second election.
While the promulgation of the rule postdated the events
primarily involved here, it shows a continuing pattern of
"Respondent' s patent unwillingness to rest the issue of
majority status upon a freely expressed choice of its
"In its brief, Respondent says- "There is no evidence in the record
showing that Maness was compelled to follow any direction that Chappuis
gave him." The record does clearly show that Chappuis made all the
decisions . Maness signed the stipulation for consent election at Chappuis'
"direction ." Chappuis " instructed" Maness not to reply to the Union's
letters. Chappuis had dictated , for Maness ' signature , the replies to the
Union 's prior demands . In the direct examination of Chappuis, both
Respondent ' s counsel and the witness repeatedly spoke in terms of
"instructions" or "directions" given by Chappuis to Maness. Maness said
he had followed established practice in advising Chappuis of the Union's
campaign when he first learned of it in January or February.
employees in a fairly conducted election and warrants the
inference that its rejection of the Union's demand for
recognition was not made in good faith." Aero Corp
supra , 149 NLRB at 1286, 1341-42.
To summarize: Respondent relies basically on the
principle stated in H & W Construction Co., 161 NLRB
852, 857, that -
an employer who in good faith withholds recognition
because of a doubt of majority, though his doubt is
founded on no more than a distrust of cards, may have
an election to resolve that doubt, and will not be subject
to an 8(a)(5) violation simply because he is unable to
substantiate a reasonable basis for his doubt....
In the words of Chappuis, Respondent "doubted" the
Union's majority "simply because we had had two
previous elections which were won by the Company" and
"we had no idea under what conditions these alleged
names were achieved." Had the record shown no more,
Respondent would not be found to have acted in bad faith
in declining to recognize the Union without an election.
However, the evidence also establishes that Respondent in
effect refused to receive the Union's demand letter until a
representation petition was filed; never replied to the
Union's demand; never expressed any doubt as to the
majority, but, on the contrary, through Dexter, indicated
that the Union's majority status was immaterial;
coercively interfered with the election which was held; and
subsequently took unlawful action calculated to interfere
with a future election.
On the record as a whole, the Examiner finds and
concludes that the General Counsel has established by a
preponderance of the evidence that Respondent's refusal
to bargain with the Union was not motivated by a
good-faith doubt as to the Union's majority. Accordingly,
since the Union's majority was clearly established, the
Examiner finds that Respondent violated Section 8(a)(5).
The initial date of such unlawful refusal to bargain is
found to be March 18, the date on which Respondent
concedes it actually received the demand and the time as
of which the General Counsel undertook to prove the
Union ' s majority status.
CONCLUSIONS OF LAW
1. Central Soya of Canton, Inc., is an employer within
the meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, is a labor organization
within the meaning of the Act.
3. By prohibiting employees to wear Union badges on
their clothing while working, Respondent interfered with,
restrained and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act, and thereby
engaged in unfair labor practices within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.
4. By discharging or laying employees off for their
refusal to remove Union badges from their clothing on
April 23, 1968, and by temporarily withholding payment
for the time lost by such layoff, in order to discourage
Union activities , Respondent engaged in discriminatory
conduct in contravention of Section 8(a)(3) and (I).
5. By discriminatorily prohibiting the distribution of
Union insignia and authorization cards on working time
on and after April 24 , 1968, Respondent has interfered
with , coerced and restrained its employees in the exercise
CENTRAL SOYA OF CANTON, INC.
of rights guaranteed by Section 7 of the Act and thereby
engaged in and is engaging in unfair labor practices within
the meaning of Sections 8(a)(I) and 2 (6) and (7) of the
Act.
6. By promulgating an unlawful rule prohibiting
solicitation and distribution on Company premises without
prior approval of management , on September 5, 1968, and
by maintaining such rule on and after September 9, 1968,
Respondent has interfered with , coerced and restrained its
employees in the exercise of rights guaranteed by Section
7 of the Act, and thereby has engaged and is engaging in
unfair labor practices within the meaning of Sections
8(a)(1) and 2 (6) and (7) of the Act.
7. All production and maintenance employees including
the feed mill employees at the employer ' s operation
located on Univeter Road , Canton, Georgia , but excluding
office clerical employees , professional employees, all
truckdrivers , hatchery employees , night cleanup leadman,
3rd shift maintenance and repair leadman , all floorladies,
guards and supervisors as defined in the Act , constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
8. At all times since March 18 , 1968, Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO, 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 , or other terms and conditions of
employment.
9. By refusing on March 18, 1968, and thereafter, to
bargain collectively with the aforesaid labor organization,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
10. The Respondent has not been shown to have
engaged in unfair labor practices other than those above
found.
THE REMEDY
Having found that Respondent committed unfair labor
practices , the Examiner will recommend the customary
cease-and -desist and notice-posting requirements.
Additionally , because of the extent of illiteracy among the
employees shown in the record it will be recommended
that Respondent be required to read the prescribed notice
to the employees at meetings to be called for that purpose.
Bush Hog , Inc., 161 NLRB 1575, enfd . 405 F.2d 755
(C.A. 5).
The major problem is whether a bargaining order
should be issued . Respondent contends that, even if it is
found to have violated Section 8(a)(5), no bargaining
order is warranted.
The only Board decision which Respondent cites as
precedent for not issuing a bargaining order where a
Section 8(a)(5) violation has been found is Laura Modes
Co., 144 NLRB 1592. The decisive fact in that case,
however , was that the Union had resorted to
"irresponsible physical assaults" (at 1596 ), thus forfeiting
its right to affirmative relief. To similar effect, see
Artcraft Mantel and Fireplace Co., 174 NLRB No. 110.
In the present case , the Union appears with immaculate
hands ; it has not invoked unlawful self-help to enforce
Respondent 's "mandatory bargaining duty ." Laura Modes
Co., supra.
Once the Union 's right to recognition is established, its
right to a bargaining order can be destroyed or forfeited
only by egregious misconduct . To the extent that
573
N.L.R.B. v. Pembeck Oil Corp., supra, 404 F.2d 105,
cited by Respondent, applies a different principle, the
Examiner is not free to follow it. The Board was
petitioned by the Supreme Court for a writ of certiorari in
Pembeck. The Board's view concerning the necessity of a
bargaining order in a Section 8(a)(5) case is reflected in
Judge Hays' dissenting opinion in Pembeck. In any event,
a later decision by another panel of the Second Circuit
shows that, because of significant factual distinctions,
Pembeck would not be controlling in the present case. In
Wheeler-Van Label Co. v. N.L.R.B., 408 F.2d 613 (C.A.
2), Circuit Judge Feinberg, speaking for a unanimous
court, said:
. we believe that the inappropriateness of the
bargaining order in Pembeck depended upon the
specific facts of that case, particularly the slimness of
the union majority and "a considerable doubt as to the
employees' continued desire" to be represented by the
Union. Neither of those facts is present in this case....
Other court decisions have similarly attached considerable
significance to the size of the Union's authorization-card
majority. Cf. N.L.R.B. v. Great Atlantic & Pacific Tea
Co., 346 F.2d 936, 941 (CA. 5); Textile Workers Union of
America v. N.L.R.B., supra, 386 F.2d at 793; N.L.R.B. v.
United Mineral Corp., 391 F.2d 829 (C.A. 2), reversing in
part 155 NLRB 1390. In the present case , as previously
noted, the Union secured over 20084 cards in a unit of
around 250.
Accordingly, since it has been found that Respondent
violated Section 8(a)(5), a bargaining order must be
issued.
In any event, the Examiner agrees with the General
Counsel's contention that, even if no violation of Section
8(a)(5) had been shown, a bargaining order would be
appropriate to remedy the Section 8(a)(l) violations
found. See Wausau Steel Corp., v. N.L.R.B., supra, 377
F.2d 638, reversing the Board's finding of a Section
8(a)(5) violation but enforcing a bargaining order under
Section 8(a)(1).
In arguing against a bargaining order, Respondent says:
"respondent cannot properly be said here to have profited
from this conduct because the conduct did not dissipate
Union strength."`In support of this statement, Respondent
argues that the Union-badge incident, rather than
interfering with the employees' rights, actually benefited
the Union, since, in a campaign leaflet, it claimed credit
for having promptly had the right to wear Union badges
restored. This is something like the boon of tight shoes,
which provide pleasurable relief upon their removal. The
corns, however, remain.
While it cannot be said that a causal relationship
between Respondent's unfair labor practices and the
Union's loss of the election has been affirmatively
established, it is clear that the Union's demonstrated
strength was dissipated and the Company's handling of
the Union-badge incident was such as would naturally
tend to coerce the employees to turn away from the
Union.
Respondent has done nothing to dispel the impression
that, in its discretion, overt support for the Union may be
penalized . Indeed , its subsequent promulgation of an
unlawful , broad no-solicitation , no-distribution rule
reinforces the message that Union activity is frowned
"The 22 cards excluded because the employees had left Respondent's
employ were valid indications of employee sentiments when they were
signed.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon and, as a violation of Company rules, "will not be
tolerated" and thus may result in discipline."
In their testimony in the present case, several witnesses
indicated that during the campaign, even when there was
no antisolicitation or antidistribution rule in effect, there
was a general fear among the employees to discuss the
Union openly. Although it does not appear affirmatively
that such fear was engendered primarily by Respondent's
coercive conduct, it is part of the background against
which the subsequent rule must be viewed, and, so viewed,
the rule is extremely coercive.
In the Examiner's opinion, the nature of Respondent's
conduct has been such that a fair, free election would not
be possible at the present time and no cease-and-desist
and notice-posting order, even if complied with forthwith,
could restore the laboratory conditions requisite for an
election.
Accordingly, on all the foregoing considerations, the
Examiner will recommend entry of a bargaining order.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, it is recommended that Central Soya of
Canton, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and, upon request, to bargain
collectively with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the exclusive
representative of its employees in the following unit:
All production and maintenance employees including
the feed mill employees at the Employer's operation
located on Univeter Road, Canton, Georgia, but
excluding office clerical employees, professional
employees, all truckdrivers, hatchery employees, night
cleanup leadman, 3rd shift maintenance and repair
leadmen, all floorladies, guards and supervisors as
defined in the Act.
(b) Prohibiting or otherwise restricting or interfering in
any manner with the wearing of Union buttons, badges or
other insignia by its employees.
(c) Promulgating, publishing, maintaining, or enforcing
any oral or written prohibition of or restriction on
solicitation on behalf of any labor organization or the
distribution of any material or literature except in
accordance with such reasonable and nondiscriminatory
rule, limited to the extent necessary to avoid disruption of
or impediments to production, as Respondent may adopt
in the future.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights of self-organization, to form, join, or assist the
Union, or any other labor organization, to bargain
collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from engaging in any or all such activities.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain with the
Union as the exclusive representative of the employees in
the bargaining unit described above, and embody any
"As previously indicated , there is reason to believe that the recently
adopted no-solicitation rule may have been intended in part as the basis for
a renewed prohibition of the wearing of Union badges
understanding reached in a signed agreement;
(b) Rescind and annul provision number 22 in its
General Work Rules, as "Re-Stated and Published
September 5, 1968";
(c) Post at its plant in Canton, Georgia, copies of the
attached notice marked "Appendix."" Copies of such
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by an authorized
representative of Respondent, shall be posted immediately
upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material;
(d) Within 1 week after receipt from the Regional
Director of the notice referred to in the preceding
paragraph, hold a meeting or meetings of all employees
and read to them in its entirety the notice attached hereto;
(e) Notify the Regional Director, in writing, within 20
days from the date of receipt of this Decision, what steps
Respondent has taken to comply herewith."
The complaint is dismissed insofar as it alleges unfair
labor practices not hereinabove found.
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act as amended, we hereby notify our
employees that:
After a trial at which all sides had the chance to give
evidence, it has been found that we, Central Soya of
Canton, Inc., violated the National Labor Relations Act
and we have been ordered to post this notice and to keep
the promises we make here.
The Act gives all employees these rights:
To engage in self-organization;
To form, join, or help unions;
To bargain collectively through a representative of
their own choosing;
To act together for collective bargaining or other
mutual aid or protection; and
To refrain from any or all of these things.
WE WILL NOT interfere with these rights.
WE WILL NOT interfere with your right to wear
Union buttons, badges or other insignia at any time.
WE WILL NOT interfere with your right to solicit for
or against a union or with your right to hand out
literature, cards, pins or other material for or against a
union , except to the extent that we may control or
regulate all forms of advertising, solicitation or
CENTRAL SOYA OF CANTON, INC. 575
distribution on working time to prevent interference
with production.
WE hereby wipe out Working Rule 22 that prohibits
solicitation and distribution without our permission,
and WE WILL NOT enforce that rule or give it any effect
from now on.
WE WILL BARGAIN on request with Amalgamated
Meat Cutters and Butcher Workmen of North
America , AFL-CIO, as the exclusive representative of
our production and maintenance workers at our plant
on Univeter Road, Canton , Georgia (but not including
hatchery employees, office clerical workers, professional
employees, truckdrivers, supervisors or guards).
CENTRAL SOYA OF
CANTON, INC.
(Employer)
Drated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 730 Peachtree
Street, NE., Atlanta, Georgia 30308, Telephone
404526-5760.