Redmond Plastics, Inc.

National Labor Relations Board - Board Decisions

May 22, 1969

176 N.L.R.B. 98 (N.L.R.B. 1969)

98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Redmond Plastics, Inc. and Textile Workers' Union
of America, AFL-CIO. Case 3-CA-3480
May 22, 1969
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
1968), on a charge filed April 12, alleged that Respondent
engaged in unfair labor practices proscribed by Section
8(a)(l) and (5) of the Act, by refusing on and after April
1, to bargain with the Union as the majority
representative of its employees in an appropriate unit.
Respondent answered on June 3, denying the unfair labor
practices.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
On September 25, 1968, Trial Examiner George
A. Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain 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.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision 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 brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.'
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, and
hereby orders that the Respondent, Redmond
Plastics, Inc., Marion , New York, its officers,
agents , successors, and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
'In affirming the Trial Examiner 's Decision, we find it unnecessary to
consider or adopt his statements as to the application of the Court's views
expressed in Local 1179 Retail Clerks Union v . N L.R.B. 376 F.2d 186
(C.A. 9), to the instant case Moreover , in agreeing with the Trial
Examiner that the Union held valid authorization cards from a majority of
the employees in the unit at the time of its request for recognition and
bargaining , we find it unnecessary , and do not pass upon , the validity of
Elsie Van Hoover 's card or the Trial Examiner 's discussion in connection
therewith
In adopting the Trial Examiner 's conclusion that the Respondent
violated Sec . 8(aX5), Member Zagona relies only on Snow & Sons, j34
NLRB 709. See his concurring opinion in Aaron Brothers Company of
California. 158 NLRB 1077,108 1.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard at Rochester, New York, on July
8 and 9, 1968, pursuant to due notice. The complaint
which was issued on May 23 (all events herein occurred in
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS; THE LABOR
ORGANIZATION INVOLVED
I find on admitted facts that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act' and that the Charging Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Respondent corporation was founded by Floyd
Redmond, its president , who personally continues to
manage its manufacturing plant in Marion, though a
majority stock interest is presently owned by Western Felt
Works of Chicago, with which the Union has had a
contractual relationship for some years.
The material events herein occurred within the space of
a few days (March 27 through April 1) during which the
Union quickly organized Respondent's employees and
made an immediate request for recognition . That request,
made to President Redmond on April 1, was backed by
production of some 15 cards in a unit of 21 employees
and by a temporary failure to report to work by a
physical majority of the employees.
Respondent contests , however, the Union's actual
majority and also claims a good-faith doubt on
Redmond's part. Also involved is an issue whether
Redmond acknowledged the Union's majority and agreed
to recognize and to negotiate with the Union. No issue is
presented concerning the appropriate unit (see Conclusion
of Law 1) nor as to the identity of the employees who
constituted it as listed in Appendix A hereto.
B. The Organizational Drive The Union's Majority
The organization drive, which was conducted by
International Representatives Donald J. Lamb and Ed
Sherman, began on March 27 with discussions with
Wilbur Mander, Roger Anderson and John Hotel, the
latter of whom was asked to form a committee. On the
evening of March 28, Sherman and Lamb met at Hotel's
home with a group consisting of Hotel, his brother
Abram, Mander, Anderson, and Gary Hubright, all of
whom signed authorization cards and who received other
cards for distribution among fellow employees. Following
return to them on Friday of 10 additional signed
authorizations, Lamb and Sherman held a further meeting
at Hotel's home on Sunday, attended by the Hotels,
Roberta Raup and Paul McCord. There was discussion of
'Respondent, a New York corporation engaged in the manufacture and
sale of valve and pump parts , sells and ships annually to extrastate points
products valued in excess of $50,000.
176 NLRB No. 10
REDMOND PLASTICS, INC.
the Western Felt contract , among others , and of benefits
which might be sought . The union representatives
informed the employees the Union had a majority of
signed cards , that they would ask for recognition the
following morning , and they suggested the employees stay
outside the shop and not to punch in as proof of the
majority.
Complying with that suggestion some 12 employees
remained outside while the request for recognition was
being made of Redmond at 7:30 a .m. on April 1. See
section C, infra. At that time there were 21 employees in
the stipulated unit (see Appendix A), of whom only three
had clocked in to work.
To establish record proof of majority , the General
Counsel offered 15 signed authorization cards which read
as follows:
TEXTILE WORKERS UNION OF AMERICA
Affiliate of the AFL-CIO and CLC
I hereby accept membership in the Textile Workers
Union of America of my own free will and do hereby
designate said Textile Workers Union of America as
my representative for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment or other conditions of employment.
Following authenticating testimony given by witnesses
Roger Anderson, Wilbur Mander, Ed Sherman, Gary
Hubright, Abram Hotel, and John Hotel, 14 of the
authorizations were received in evidence as marked with
the designation (C) on Appendix A hereto, and one was
rejected. Examination on voir dire and on cross developed
nothing of substance which reflected on the authenticity of
any one of the 14 authorizations,: but Respondent also
called five of the signatories to testify to the circumstances
under which the cards were signed. As there was again
little of substance which tended to invalidate the
authorizations under recent Board decisions (e.g., Levi
Strauss & Co., 172 NLRB No. 57; McEwen Mfg. Co.,
172 NLRB No. 99), the testimony can be briefly
summarized.
Helen Lonneville
Lonneville's card was received on authentication by
Gary Hubright, who testified he told her it was a union
card and asked whether she wanted to sign. After first
demurring, Lonneville said she thought she needed
benefits and thereupon signed the card and gave it back to
him.
'Relying on N.L.R.B. v . Gorbea, Perez and Morell, 300 F . 2d 886. 888
(C.A 1), Respondent assigns , for example, Sherman 's admission that he
informed the five committeemen on March 28 , that initiation fees would be
waived . The precise issue was raised by the employer in Amalgamated
Clothing Workers v. N.L.R . B., 345 F .2d 264, 267-268 (C.A. 2), with the
court refusing to follow Gorbea though it assumed that the waiver helped
to induce the employees to sign the authorization cards.
Respondent also cites testimony by Mander and Anderson that the
committeemen were told to sign up the employees quickly and not to give
them a chance to think it over because someone might talk to Redmond
about it . They were told to keep the matter secret because it would be
easier to get the Union in if Redmond were taken by surprise and that
they should not give a card back even if the signatory asked for it. There
was nothing in that statement of an organizational technique or in the
manner of its application by the solicitors which reflected on the validity of
a single authorization , including those signed by five employees called by
Respondent next to be considered below.
99
Lonneville admitted that Hubright told her it was a
union card, that the employees wanted the Union for
hospital benefits and needed to have a majority to go
along with them. She thereupon signed the card without
reading it (but after filling out all blanks) in order to help
her fellow workers obtain hospital benefits, understanding
that the union would come in by the signing of the cards
and that the employees would get those benefits.
Verna E. Chapman
Chapman's card was received on authentication by
Abram J. Hotel, who testified he told her it was a union
card, asked her to read it over, date it and sign it . Shortly
afterwards Chapman returned her signed card to him but
did not fill in the blanks.
Chapman admitted she knew the card was a union card
and saw the name Textile Workers' Union on it (after
first denying the latter). She testified that Hotel told her
the employees wanted hospitalization and other benefits
and that by "voting for" or signing the card, the
employees could perhaps produce those benefits.
Thereupon she signed the card without reading it in order
to give her fellow employees the "go ahead" and to help
them get the benefits.
Elsie Van Hoover
Hoover's card was received on authentication by John
Hotel, who testified he gave her the card, told her the
employees were trying to get a union in, and asked if she
would like to join the Union. Hoover later returned her
signed card to him with all blanks filled in.
Hoover testified that Hotel told her he would like for
her to sign the card to get the Union in and to get benefits
for the employees, and she admitted that to signing she
was doing so to have union representation. Hoover
testified further, however, that Hotel told her that
everyone else had signed and (under an offer of proof)
that she would not have signed but for Hotel's statement.
Lloyd Holdridge
Holdridge's card was received on authentication by
Wilbur Mander, who testified he told Holdridge that some
of the employees would like to see if they could get a
union in and asked if Holdridge wanted to sign up.
Holdridge returned his signed card some 2 hours later.
Holdridge, who openly professed strong antiunion
sentiments, testified that Mander told him they wanted to
get 100 percent of the employees signed up, that he did
not read the card, and that he "thought" or "understood"
that there was to be a vote on whether the union got in.
That belief, however, was not based on anything Mander
told him but on his prior experiences with unions. Though
Holdridge admitted he filled in all blanks on the card, he
testified he did not look at and did not see the Union's
name on it.
Albert Rykbost
Rykbost's card was received on authentication by John
Hotel, who testified he told Rykbost it was a union card
and asked whether Rykbost would like to join. Some time
later Rykbost returned his signed card with all blanks
filled in.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rykbost testified that when Hotel asked him to sign, he
inquired whether signing would mean he was in the
Union. Hotel replied that it did not and that it meant only
that if enough cards were signed, the Union would come
in and explain to the employees the benefits the Union
could give. Rykbost stated he was in no hurry to sign but
that if the rest of the employees signed, he would go along
with them.3 Rykbost kept the card for a couple of hours
and after again discussing the Union with Hotel , he signed
the card and delivered it to Hotel. He admitted that he
filled in all the blanks and that the words Textile
Workers' Union were on it as well as the other
information.
It is also to be noted that none of the above signatories
made any attempt to disavow their cards or requested
either the solicitor or the Union to return the cards. Three
of them (Lonneville, Hoover, and Rykbost) were among
the 12 signatories who refrained from clocking in to work
while the demand for recognition was being made.
Lonneville and Rykbost testified they stayed out because
John Hotel stated that those who signed the blue (union)
cards could not go in , and they did not clock in until John
Hotel came out and motioned to the group that they were
to come in.'
Concluding Findings
Recent Board decisions leave without foundation
Respondent ' s contentions concerning the validity of the
authorization cards . Thus, in Levi Strauss & Company,
172 NLRB No. 57, and McEwen Manufacturing
Company, 172 NLRB No. 99, the Board restated at
length and reaffirmed the principles which it applies in
determining the validity of such cards and which , so far as
here relevant , may be briefly summarized as follows:
The central inquiry in determining the effect to be given
authorization cards is whether the employees by their act
of signing clearly manifested an intent to designate the
Union as their bargaining agent . The starting point, in
assessing that intent, is the wording of the card. Where a
card on its face clearly declares a purpose to designate the
Union , the card itself effectively advises the employees of
that purpose , particularly where, as here , the form of the
card is such as to leave no room for possible ambiguity.
An employee 's thoughts (or afterthoughts ) as to why he
signed a union card , and what he thought that card
meant, cannot negative the overt action of having signed a
card . Cf. Joy Silk Mills v. N.L.R. B., 185 F .2d 732, 744
(C. A. 5).
An employee who signs such a card may perhaps not
understand all the legal ramifications that may follow his
signing , but if he can read he is at least aware that by his
act of signing he is effectuating the authorization the card
declares . To assume that the employee does not intend at
least that much would be to downgrade his intelligence or
to charge him with irresponsibility , neither of which the
Board is willing to do.
In the case of clearly expressed authorization cards, as
in the case of other signed instruments , there is no valid
'Rykbost made no claim that Hotel represented that all other employees
had signed cards.
'Though a conflict developed on the collateral issue whether Sherman
also informed some of the employees they should go in to work, Roger
Anderson 's testimony was corroborative of Sherman that the latter spoke
to a group which included at least him and Paul McCord . Though the
point is largely immaterial, I credit Sherman 's testimony to the extent so
corroborated.
basis in reason or law for denying face value to the signed
cards , absent affirmative proof that the signing was a
product of misrepresentation or coercion.'
The present record is devoid of evidence of coercion
and there is also nothing which amounts to substantial
misrepresentation . Rykbost 's testimony concerning Hotel's
representations did not reflect such a material
misrepresentation as would invalidate the card . Thus in
Gordon Manufacturing Company , Inc., 158 NLRB 1303,
1308, there was testimony that the solicitor informed an
employee that signing the card meant the Union would
come and talk with the employees . The Board adopted
the Trial Examiner ' s finding that such a statement did not
constitute misrepresentation sufficient to vitiate the card.
Neither Rykbost ' s testimony nor that of Respondent's
other witnesses contained any indication that was here
"such a `hard sell ' as would overcome the fact of signing a
clearcut authorization card ." N.L.R.B . v. Southbrigde
Sheet Metal Works , 380 F . 2d 851 , 855 (C.A. 1). Thus
there was no showing here of "fairly strong evidence of
misrepresentation " which is required in adjudging such
cards to be invalid. Id.
Hoover 's testimony (including the offer of proof) also
failed to establish a material misrepresentation . Thus in
Merrill Axle and Wheel Service , 158 NLRB 1113,
1114-15, the Board rejected the Company ' s contention
that four cards were invalid because the solicitors made an
untrue representation that most or a majority of the
employees had already signed and because the employees
in question would not have signed except for the
misrepresentation . See also N.L.R.B. v. Cactus Petroleum
Inc., 355 F.2d 755 (C.A. 5).
Though a temporary aberration in the course of the
Board law appeared in I.T. T. Semi-Conductors , Inc., 165
NLRB No. 98 ,6 the Board soon corrected its position in G
& A Truck Line , Inc., 168 NLRB No. 106 . The Trial
Examiner there rejected the cards of two employees
because they were signed in reliance on what he found to
be the "substantial and critical misrepresentation" that
everyone else had already signed. The Board , however,
found that the cards were to be counted toward the
Union ' s majority , stating that:
Contrary to the Trial Examiner, the Board has held,
with court approval, that statements of this type are
immaterial in determining the validity of authorization
cards , even when signed in reliance thereon. Such
statements are harmless sales talk or puffing , which do
not operate "to overcome the effect of . . . [the
employees '] overt act of signing."
I therefore conclude and find on the entire evidence
that when the request to bargain was made on April 1, the
Union held valid authorizations from 14 employees, or
more than a majority of those in the unit. Evidence
concerning a subsequent change in heart did not affect the
majority which existed when the request was made but is
'The failure of some of the signatories to read the cards did not vitiate
them, particularly since the signatories were aware that the card was a
union card or was to obtain union representation. McEwen Mfg Co.,
supra
Claims by some of the signatories that they did not even see the Union's
name on the card did not inspire confidence in their testimony since the
Union 's name appeared in large type across the top of the card and was
repeated twice more in the brief text of the authorization
`The Board held that an authorization card secured upon a false
representation of existing majority "can be rendered invalid only upon
proof that it would not have been subscribed but for the erroneous
representation or that the misrepresentation operated coercively by putting
signers in fear of majority reprisal."
REDMOND PLASTICS , INC. 101
considered below on the question of good - faith doubt.
C. The Issue of Good-Faith Doubt
The issue of good-faith doubt turns largely on what
happened at the 7:30 meeting when Redmond was
requested to recognize and to bargain with the Union.
Also relevant under Respondent's theory was a subsequent
shift of employee sentiment (see fn . 11, infra) of which
Redmond was informed.
When Lamb and Sherman arrived at the plant shortly
before 7:30 on April 1, a group of 12 employees was
waiting outside (the Hotels, Mander, Hubright, Helen
Lonneville, Jeanne O'Connor, Paul McCord, Albert
Rykbost, Elsie Van Hoover, Irene Hermanet, Roger
Anderson, and Roberta Raup). Sherman and John Hotel
told various employees that those who signed blue (union)
cards should not go in and Lamb requested the two
Hotels and Mander to go in with him and Sherman as a
committee and to act as witnesses when recognition was
requested. When Redmond arrived around 7:30 Lamb and
Sherman and the committee followed Redmond into the
shop while the other employees remained outside without
clocking in.
The testimony of Lamb and Sherman may be
summarized as follows:
They introduced themselves as representatives of the
Union and informed Redmond they ,represented a
majority of the employees and were ready to establish a
majority by card proof. They asked whether Redmond
would like to check the cards and he said he would. Lamb
handed some 16 cards to Redmond ^ who looked through
them and commented that one of the signatories (Stephen
Young) was a part-time employee. Lamb asked whether
Redmond found the signatures to be authentic and
Redmond replied that he thought they were. Lamb stated
that if Redmond needed further proof of majority he
could look into the shop and see that there was no one in
the plant. On Lamb's further inquiries Redmond agreed
he believed the Union represented a majority and agreed
he would recognize the Union.
They discussed a meeting for negotiations and agreed
on April 4. During that discussion Redmond looked
through the cards again and commented on his
assumption that the committee present would be sitting
with the Union in the negotiations. Lamb suggested that
there should be an interim agreement to cover the
understanding as reached and Redmond agreed. Sherman
thereupon left to procure a writing tablet from Lamb's car
and the committee and the other employees punched in to
work.'
When Sherman returned, Lamb composed in longhand
a draft of a recognition agreement , reading it to Redmond
as he went along . Redmond found the language acceptable
but stated that the negotiations would work both ways,
that there would be no more free coffees for employees
and no more short days or free paid time on inventory
days. Redmond agreed to have his secretary (Linda Utley)
type up the draft but stated he would have to talk with
Chicago officers of the company (or of Western Felt)
before he signed it . They agreed to meet at 10 a . m., and
the draft was handed to Utley to be typed.
As typed by Utley and produced at the 10 o'clock
meeting , the agreement read as follows:
I do hereby recognize the Textile Workers Union of
America , AFL-CIO as the bargaining agent of the
employees of Redmond Plastics, Incorporated. Proof
has been shown me of a signed majority of my
employees on this day April 1, 1968. I agree to
negotiate with the Textile Workers Union of America
A. F. L. - C. I. O. All conditions concerning the
employees employment will remain status-quo until an
agreement is reached between the two parties . April 4,
1968 is the first day of negotiations between the Textile
Workers' and Redmond Plastics, Incorporated.
The 10 o 'clock meeting was brief . Lamb and Sherman
testified that Redmond informed them the agreement had
been typed but because of the time zone differential he
had been unable to contact the Chicago officers and he
would rather talk with them before signing. He said
nothing about an attorney at the time.
Lamb and Sherman testified that when they returned
again at 4 p . m. pursuant to agreement , Redmond
informed them he had talked with his attorney in Chicago
(whom he finally identified as Philip Carter) and had been
advised to seek a consent election agreement. They
inquired whether he doubted the Union's majority and he
replied he did not . Sherman inquired whether Redmond
informed his attorney of everything that had taken place
that morning, including looking at the cards and agreeing
to recognize the Union , and Redmond stated that he had.
Redmond 's testimony concerning the 7:30 meeting was
in direct conflict with Lamb ' s and Sherman ' s mainly in
denying that he acknowledged the Union ' s majority and
that he agreed to recognize and to negotiate within the
Union . In other respects Redmond either admitted or
failed to deny significant portions of their testimony.
Thus Redmond admitted that the Union representatives
claimed a majority , showed him a handful of
authorization cards, and asked him to negotiate. He
admitted that he glanced through as many as five at the
top of the stack and called attention to the card signed by
a part-time employee and that he possibly looked at the
cards twice . Indeed, Redmond admitted on
cross-examination that he informed Lamb , "[I]t looked
like you have a majority ," and that though he did not
count the cards, he based that conclusion on the size of
the stack. Redmond also admitted the Union
representatives informed him the employees were outside
and had not gone to work , though he testified he knew the
whole force was not outside because he had seen some of
them at work.'
Redmond admitted further that he was questioned
concerning the authenticity of the cards and, though he
could not recall his response, he admitted he raised no
question except in the case of Young , the part-time
employee . Indeed , Redmond testified specifically that it
was not the cards he doubted but that his difficulty lay "in
trying to comprehend how the people that [he] knew so
well would get involved."
'Though Lamb and Sherman testified that up to this point the meeting
lasted some 30 minutes , the timecards of II employees , including the
committee showed that they clocked in at approximately 7:38. The ir error
may have laid in including the time they remained in the office during
preparation of the interim agreement , next referred to. Respondent also
attacks Sherman 's claim that he went outside , but Anderson's testimony,
referred to in fn . 4, supra , corroborated Sherman.
'Documentary evidence established that only three employees had
clocked in at that time and that one other was at work who did not punch
the time clock . Against this there were 12 (including the committeemen)
who had not clocked in and there were three others who were not due to
report until a later time . Roberta Raup, who waited with the outside
group, was on sick leave on April l and did not clock in with the other 11.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Redmond also admitted that there was discussion of
preparing a recognition agreement and that he agreed his
secretary could type it. He testified he was not present
during all the time when Lamb was writing out the rough
draft and he could not remember whether Lamb read
portions of the draft to him as it was being written.
Redmond denied that he agreed at any time to sign the
agreement and, denying that he agreed to recognize the
Union, testified he stated that he recognized Lamb and
Sherman to be representatives of the Union.
Redmond testified further he informed Lamb and
Sherman he was not ready to negotiate, that he needed to
contact other officers of the Company and to get some
legal advice (though he had no attorney at the time)
because he had not had problems with unions before. It
was therefore agreed that there would be a meeting on
April 4 and that Lamb and Sherman would return at 10
a.m., to give Redmond an opportunity to call other
officers in Chicago.
Redmond testified finally that his secretary brought
him the typed draft of the recognition agreement after
Lamb and Sherman left but he did not look at it and did
not read it and directed her to keep it until the union
representatives returned. He first read the agreement when
Lamb and Sherman returned at 10 a.m. and asked him to
sign it . Redmond informed them he would not sign
anything or do anything until he had legal advice, and
they agreed to meet again at 4 o'clock at which time he
hoped to have a lawyer.
Respondent called Wilbur Mander concerning the first
segment of the 7:30 meeting but his testimony was of
scant value in corroboration of Redmond. Not only did
Mander reflect a disposition to admit less of a damaging
nature than Redmond did, but his testimony was
substantially impeached on a number of significant points
by a prior written statement which he gave Lamb on April 3.
Thus Mander testified that Redmond looked at the
cards only once, that he could not state "definitely"
whether anything was said about a majority and could not
say "definitely" that there was any discussion of whether
the cards were authentic. On cross-examination , however,
Mander admitted that his written statement contained the
following language:
Don Lamb offered card proof of a majority and
Redmond looked at the cards. Don Lamb asked
Redmond if he thought the cards were authentic and he
said yes.
Mander testified further that on the question of
recognizing the Union, Redmond's statement was that he
realized they were union representatives, and so far as
Mander knew what Redmond agreed to was to talk with
them about the possibility of a union at a meeting on
April 4. Mander's piror statement contained the following
sentence:
I can't recollect all the conversation that took place, but
do remember setting a date for negotiations which
was Thursday, April 4, 1968.
In acknowledging that his statement contained that
language, Mander commented, "Negotiations, a meeting,
same thing."
Respondent sought unsuccessfully to rehabilitate
Mander on redirect examination by attacking his prior
written statement. Mander testified, however, that Lamb
explained he needed a statement "of what went on" in
support of a Board hearing because Redmond had "said a
lot of different things." Thereupon, answering Lamb's
questions as Lamb wrote, Mander "Just told him what I
thought went on." Mander read over the statement before
he signed it and pointed out nothing that was wrong in it.'
Concerning the preparation of the interim agreement,
Respondent called Linda Utley, Redmond's secretary,
who testified that after Redmond introduced the union
representatives to her there was discussion of a meeting to
be held on April 4, and further discussion of an agreement
to be put in writing. At Redmond's suggestion Lamb and
Sherman wrote out in longhand an agreement on yellow
lined paper . Although it was read aloud between Lamb
and Sherman, Redmond was present only in the beginning
and it was not read to him though he might have heard a
few words of it. Utley typed up the agreement after Lamb
and Sherman left, gave both the rough and finished drafts
to Redmond, who kept them, and she did not see them
again.
On the foregoing record as I am unable to credit
Mander's testimony, I find Redmond's testimony to be
without corroboration concerning the first segment of the
meeting . On the other hand the testimony of Lamb and
Sherman was not only mutually corroborative but it was
confirmed in major respects by Redmond's admissions
and by his failure to deny the statements attributed to him
concerning the assumed participation of the employee
committee in the negotiations and concerning his view
that the negotiations should work both ways.
I therefore conclude and find that Redmond conceded
the fact of the Union's majority after checking the cards
submitted to him and after questioning the authenticity of
only one card. I find further that Redmond otherwise
expressed no doubt either on authenticity or majority and,
moreover, that means were immediately at hand for
resolving any unexpressed doubts, i.e., checking on the
number of employees who refrained from working in
support of the recognition demand. I find further that
Redmond agreed to recognize the Union and agreed to a
meeting for negotiations on April 4.10
Concerning the 4 p.m. meeting, Redmond testified that
in the meantime he had talked with Chicago officers and
with Philip Carter, whose law firm represented Western
Felt, and that he informed Lamb and Sherman that,
"[W]e had a good-faith doubt as to the validity of the
cards and we would like to have a secret ballot
[election]." They inquired again whether he would sign the
interim agreement and he replied he was not going to sign
anything or do anything except with legal advice, and his
advice was to ask for an election. Redmond denied telling
them he did not doubt they represented a majority of the
employees and denied telling them his attorney instructed
him to deny his earlier conversations with them.
'The giving of the statement otherwise exposed Mander 's lack of
reliability as a witness in that he testified elsewhere he made no attempt to
procure return of his card from the Union because, "[W]e couldn't get in
contact with them ." The opportunity plainly existed on April 3 when he
gave Lamb a statement which fully supported the Union 's position on the
7:30 meeting.
"By knowingly permitting the drafting of the interim agreement
Redmond lent further support to the view that recognition was granted, for
if he had refused recognition or questioned the Union 's status, there was
no point in the union representatives staying on and preparing a useless
paper acknowledging a recognition which Redmond had allegedly refused
to accord. Furthermore , Redmond 's attempts to disclaim knowledge of the
contents of the interim agreement were exposed by Utley's testimony that
Redmond was present at least at the start and that he kept the typed draft.
I credit the testimony of Lamb and Sherman that Redmond found the
draft acceptable.
REDMOND PLASTICS, INC. 103
Respondent also called R. J. Chappelow, personnel
director of Western Felt, who testified that around 11:15
Chicago time (12:15 EST) he received a call from one
Joseph Mansfield, whom he knew as a member of the
Union's Chicago Joint Board. Mansfield reported that the
employees at Redmond's were on strike and requested
that Western Felt apply some influence on Redmond to
give the Union a voluntary recognition agreement. Though
Respondent assigns that testimony as inconsistent with
claims by Lamb and Sherman that Redmond had already
agreed to recognize the Union, the inconsistency
evaporates when the time factor is considered. Thus at 10
a.m. New York time (9 a.m. Chicago time), Redmond
had already informed Lamb and Sherman that he
proposed to talk with the Chicago officers before he
actually signed the agreement.
Respondent also offered testimony by Redmond and
Carter concerning Redmond's calls to Chicago,
culminating in a call from Carter, who advised Redmond
on the position he should take. Redmond testified that he
first called Fred Sheran (secretary and treasurer of
Respondent and comptroller of Western Felt) some time
after 9 a.m., told Sheran what had happened and stated
that he wanted some legal advice. Sheran said he would
call back but did not do so until after the 10 a.m. meeting
with Lamb and Sherman. On that call Sheran informed
Redmond he would be hearing from a lawyer, and around
11 or 12 o'clock Redmond got a call from Philip Carter,
who asked what had happened.
Redmond testified that he reported to Carter to the
best of his knowledge, covering the fact of the production
of the cards and the the fact the employees had not come
in to work. Carter inquired whether Redmond checked the
cards individually and Redmond replied he had not.
Carter also asked whether Redmond knew how they had
been obtained and Redmond again replied he did not.
Carter informed Redmond that from his experience he
had discovered that cards were doubtful because of doubt
as to how they were obtained. Though Redmond knew
nothing himself of those circumstances and could
therefore tell Carter nothing, Carter advised him that he
should inform the Union representatives he had a good
faith doubt of the authenticity of the cards and would like
a secret ballot election.
Carter testified that at Sheran's request he called
Redmond, who informed him that two union
representatives and three employees had called on him,
claiming majority representation by the Union and
supporting their claim by producing authorization cards.
Redmond also reported that some of the employees did
not report to work and had "stood around outside."
Redmond did not state, however, and Carter did not
inquire whether the majority remained outside.
Carter asked whether Redmond counted the cards and
he said he had not done so and he also answered
negatively Carter's questions as to whether he had read
the cards, whether he looked at them individually, and
whether he compared the signatures with other company
records. Redmond also told Carter about the agreement
the Union representatives wanted him to sign and read it
to Carter over the telephone. Carter inquired what the
purpose of the meeting was, referred to in the agreement,
and Redmond stated it was to talk further about the
union matter.
Carter explained to Redmond that certain courts had
taken the position that authorization cards in and of
themselves were unreliable evidence of majority status and
explained further certain circumstances which had
developed in his experience with respect to the use of
authorization cards, i.e., that in some instances the cards
merely authorized the Union to seek an election and in
other instances they authorized the Union to negotiate on
behalf of the signatories . Carter continued that because
"we did not at that point know what the inscription was
on the card, it seemed to me that it was doubtful in our
minds as to what purpose the cards had been signed for,
and, under the circumstances, it established at least, a
basis for a position of good-faith doubt." Carter explained
what courses of action might be followed if a
representation petition were filed and finally advised
Redmond that when the union representatives returned, he
should indicate to them that he had a good-faith doubt
that they represented a majority of the employees in an
appropriate unit.
As to whether Redmond himself expressed any doubt
concerning a majority, Carter testified he believed
Redmond did so in that "he indicated that as far as he
was concerned he could not understand how a majority of
his people could have been involved in a matter of this
type."
Carter admitted on cross-examination, after reading a
card, that he would have no difficulty in ascertaining the
purpose of the card from the language itself, but he
testified that nevertheless it might be possible that the
circumstances surrounding the execution might lead a
signatory to believe something entirely different from what
the card said.
Respondent also offered, as confirming or reaffirming
Redmond's alleged majority doubts, evidence concerning a
wave of sentiment against union representation which
began within a day of the bargaining request and which
extended even to members of the employees committee."
Redmond testified that around 6 p.m. on the evening of
April 1, Irene Hermanent came to his home and, claiming
to speak for some of the girls, informed him they did not
want the Union and wanted to know how they could get
their cards back. Redmond replied that the only solution
he knew was by a secret ballot election to be held by
NLRB.
Mander testified that on the morning of April 2, he and
the Hotel brothers, after talking the matter over, went in
and talked with Redmond about the possibility of getting
their cards back, informing Redmond that some of the
employees were not quite sure they wanted a union.
Redmond informed them he did not know what could be
done except for the possibility of a vote in a Labor Board
election. Redmond in turn reported to Carter on the
afternoon of April 2 that several employees had informed
him they no longer wished to be represented by any
union. ' 3
Finally the record contains a series of letters dating
from April I through June 8, but as they were devoted
only to maintaining the respective positions of the parties,
they threw no further factual light on the issue of
good-faith doubt. The same is true concerning a visit by
Lamb and Sherman on April 4, when Redmond refused
their request to negotiate and referred them to Carter's
letter to Lamb of April 2 as stating his position. In the
"Though much of the testimony was taken on an offer of proof subject
to a later ruling on admissibility, I find that it is relevant to Respondent's
theory of the good -faith doubt issue and I now receive it in evidence.
"There was also testimony that John Hotel and Mander refused requests
by Lamb on the evening of April I that they keep the employees from
reporting to work the next morning.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meantime Carter had also advised Redmond there was no
longer any purpose in a meeting because Redmond's
reports of defections in union support put in further doubt
the majority status of the Union.
Concluding Findings
As found above, Redmond expressed no doubt at the
7:30 meeting concerning the fact of the Union ' s majority
and he agreed to recognize the Union and agreed on a
date to begin negotiations.
Even if it were assumed that Redmond entertained
unexpressed doubts at the time , there were ready means
available by which he could have resolved any doubt on
the spot . Thus a checking of the signatures against office
records would have required at most only a few minutes"
and even less time was needed to check on the physical
number of employees who were supporting the recognition
request by refraining from work . Cf. Harry 's Television
Sales and Service , 143 NLRB 450, 455. Indeed Redmond
could have had no real doubt on the latter score for he
admittedly saw some of the employees at work and
therefore knew or should have known that only four of
them had come in . Moreover , on authenticity Redmond's
own testimony showed that he did not in fact doubt the
cards but that his difficulty lay in trying to understand
how his employees could get involved with, or why they
wanted , the Union.
The subsequent calls to Chicago and the advice received
from Carter could not serve to create for Redmond a
good-faith doubt when none existed and none was claimed
at the time recognition was requested . Furthermore
Redmond admittedly informed Carter that the employees
had not come in to work and that his doubt lay in his
inability to understand how his employees could get
involved in such a matter."
Beyond that all claims of doubt were patently synthetic
ones , suggested by Carter on the basis of his experience in
other cases . But Carter's advice did not fit the facts of the
present case , for the circumstances of the recognition
meeting had left no basis for asserting a good-faith doubt
of majority. Even the most adroit attempts at locking the
stable door would come too late under the evidence here,
for Redmond had already given the horse away.
Respondent argues, however , that an employer may
decline to recognize a union and insist on an election even
if he knows of the Union's majority at the time of the
demand for recognition , citing in support certain language
from Agway Petroleum Corporation, 170 NLRB No. 95.
The factual situation in the Agway case , however, is
distinguishable from that in the present case in that the
information concerning the Union's majority there
reached only to a subordinate and was not passed on to
the superior who replied to the recognition demand. The
subordinate's knowledge was thus found to be not in
actuality "Company knowledge ." Furthermore, the
language which Respondent relied on was prefaced by a
citation of judicial authority which held to the contrary
that even in absence of any other showing of antiunion
animus or other violations of the Act, employers may be
found guilty of violating the statutory command that they
recognize and bargain with the union which represents a
majority of their employees. See, e.g., N.L.R.B. v. Tom's
"Redmond admittedly had no difficulty in spotting the card of one
signatory who was not properly within the unit.
'This amounted in effect to the familiar lament, "How could they do
this to me?"
Supermarket , Inc, 385 F.2d 198 (C.A. 7); Local 1179
Retail Clerks Union v. N.L.R.B., 376 F.2d 186 (C.A. 9);
Snow & Sons v . N.L.R.B., 308 F.2d 687, 692-694 (C.A.
9).
In the latter case the court pointed out the pertinent
distinction in the following language:
Proof of an improper motivation for insisting upon a
Board election warrants the inference that the
employer , when it refused to recognize the union, did
not have a reasonable doubt as to the union ' s majority
status . But proof of such motivation is not essential in
order to make such a finding if lack of a reasonable
doubt is established in some other way. [Emphasis
supplied.]
The court applied that rule later in Local 1179 , supra,
and held further that:
[W]hen the employer makes his own examination
of the authorization cards and is convinced of their
identity and validity , as the Trial Examiner found that
Serpa had done , a subsequent refusal to recognize the
union is adequate affirmative evidence of a lack of
good-faith doubt as to majority status.
See also Greyhound Terminal , 137 NLRB 87, 91, 92,
enfd . 314 F.2d 43 (C.A. 5); Fleming & Sons of Colorado,
Inc., 147 NLRB 1271, 1273.
The true rule is, as the Board held in the latter case,
that an employer has no absolute right to insist upon a
Board directed election and that (quoting from Snow &
Sons , 134 NLRB 709, 710-711):
Where , as here , the Employer entertains no reasonable
doubt either with respect to the appropriateness of the
proposed unit or the Union 's representative status, and
seeks a Board -directed election without a valid ground
therefor, he had failed to fulfill the bargaining
requirements under the Act.
Also without merit is Respondent 's further argument
that in any event it could legally withdraw recognition
when it subsequently learned the Union lost its majority
status , citing Braymen-Meinking Contractors Inc., 171
NLRB No. 57. The principle which is controlling here is
that an employer's doubt is to be determined as of the
time of the request and the refusal to recognize. See Snow
& Sons v . N.L.R.B., supra, where the court added:
Once it is shown that the employer entertained no
genuine doubt of this kind at the time it refused to
bargain, an unfair labor practice has been established.
The fact that , as it later developed , there were grounds
which might have created a genuine doubt at that time
is then immaterial.
See also the Board ' s decision on remand in John F.
Serpa, Inc., 166 NLRB No. 66, where the Board ordered
the employer to bargain even though during the
intervening time and subsequent to the recognition request
two employees voluntarily withdrew their cards and
destroyed the Union ' s majority.
To summarize , I conclude and find on the entire
evidence that at the time the Union made its request to
bargain on April 1, Redmond entertained no genuine
doubt of the Union ' s majority and Respondent was
therefore not entitled to insist on a Board-directed
election. I conclude and find further that the subsequent
change in employee sentiment did not affect the Union's
majority as of the critical time the request for recognition
was made nor did it serve to support alleged claims of
doubt at that earlier time.
REDMOND PLASTICS, INC.
I therefore conclude and find that at all times on and
after April I, Respondent refused to bargain with the
Union within the meaning of Section 8(a)(5) of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case I make the following:
CONCLUSIONS OF LAW
1. All production and maintenance employees employed
at Respondent's Marion plant, excluding all office and
clerical employees, guards, supervisors and professional
employees 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.
2. At all times on and after April 1, 1968, the Union
has been the exclusive representative of all the employees
in said unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment and
other terms and conditions of employment.
3. By refusing to bargain with the Union on and after
April 1, 1968, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as outline below which I find to be necessary to remedy
and remove the effects of the unfair labor practices and to
effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act I hereby issue the following:
RECOMMENDED ORDER
Redmond Plastics Inc., its officers , agtts, successors
and assigns shall:
1. Cease and desist from refusing to bargain with
Textile Workers Union of America, AFL-CIO, as the
exclusive representative of its employees in the unit herein
found appropriate and in any like or similar manner
interfering with, restraining or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action-
(a) Upon request bargain with Textile Workers' Union
of America, AFL-CIO , as the exclusive representative of
its employees in the unit herein found appropriate and
embody any understanding reached in a signed agreement.
(b) Post in its offices and plant at Marion , New York,
copies of the attached notice marked "Appendix B.""
Copies of said notice on forms to be provided by the
Regional Director for Region 3 , shall, after being duly
signed by Respondent ' s representative , be posted by it
immediately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken to
insure that said notices are not altered , defaced, or
covered by any other material.
"in the event this Recommended Order be adopted by the Board the
105
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.16
words Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the notice
"In the event 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 Respondent
has taken to comply herewith "
APPENDIX A
Employees in Unit
1. Roger D . Anderson (C)
2. Verna E. Chapman (C)
3. Stephen V. Crane
4. Bonita C. Dibble (C)
5. Irene G. Hermanet
6. Lloyd G. Holdridge
7. Abram J. Hotel (C)
8. John J. Hotel (C)
9. Gary O. Hubright (C)
10. Florence N. Johnson
11. Arthur E . Lonneville
12. Helen O ' Connor
Lonneville (C)
13. Wilbur T . Mander
(C)
14. Paul D . McCord (C)
15. Jeanne G . O'Connor
(C)'
16. Roberta A. Raup
(C)
17. Albert F . Rykbost
(C)
18. Elsie Van Hoover
(C)
19. Ross J Van Slyck
20. James A. Wing
21. Mark A. Wayman
e,1R ctte
APPENDIX B
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:
WE WILL NOT refuse to bargain with Textile Workers
Union of America, AFL-CIO, as the exclusive
representative of our employees in the bargaining unit
and WE WILL NOT in any like or similar manner
interfere with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of the
Act.
WE WILL bargain collectively upon request with,
Textile Workers Union of America, AFL-CIO, as the
exclusive representative of our employees in the
bargaining unit described below with respect to rates of
pay, wages, hours of employment and other conditions
of employment and if an understanding is reached
embody such understanding in a signed contract.
The bargaining unit is.
All production and maintenance employees employed
by us at our Marion plant, excluding all office
clerical employees, guards, supervisors and
professional employees as defined in the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of Textile
Workers Union of America, AFL-CIO, or any other
a
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization except to the extent provided in Section This notice must remain posted for 60 consecutive days
8(a)(3) of the Act. 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
REDMOND PLASTICS, INC. or compliance with its provisions, they may communicate
(Employer) directly with the Board's Regional Office, Fourth Floor,
Dated By The 120 Building , 120 Delaware Avenue, Buffalo, New
(Representative) (Title) York 14202, Telephone 842-3112.