B & W Engineering and Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1968

172 N.L.R.B. 1574 (N.L.R.B. 1968)

1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B & W Engineering and Manufacturing Co., Inc.
and International Union of Operating Engineers,
AFL-CIO, Local 826. Case 16-CA-2816
August 19, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On February 21, 1968, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 exception, briefs,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed
unfair labor practice or which interferes in any way
with the holding of a fair election, has nevertheless
violated the duty to bargain imposed by statute.
The complaint herein, issued June 2, 1967,' pur-
suant to Section 10(b) of the National Labor Rela-
tions Act, as amended (herein called the Act), al-
leges that B & W Engineering and Manufacturing
Co., Inc., an employer under the Act (herein called
Respondent), interfered with, restrained, and
coerced its employees in their exercise of rights
guaranteed therein; that although International
Union of Operating Engineers, AFL-CIO, Local
826 (herein called the Union) was the duly
designated representative of Respondent's em-
ployees in an appropriate unit, Respondent refused
to bargain with the Union; and that, when the strike
called by the Union was terminated by the em-
ployees' unconditional offer to return to work,
Respondent refused to reinstate a number of them,
thereby committing unfair labor practices violative
of Section 8(a)(I ), (3), and (5) of the Act.
Respondent answered, denying the commission
of any unfair labor practices, and a trial of the is-
sues so raised was held before me at San Angelo,
Texas, on July 24, 25, 26, and 27, 1967, at which
all parties were represented, afforded an opportuni-
ty to adduce evidence, cross-examine witnesses,
and argue upon the facts and the law. Briefs sub-
sequently filed by the General Counsel and counsel
for Respondent have been considered.
For the reasons hereinafter stated in detail, I find
that the General Counsel has failed to prove that
Respondent's refusal to recognize and bargain with
the Union was not based upon a good-faith doubt
of the Union's representative status and that, there-
fore, the complaint must be dismissed.
Upon the entire record herein,' and considering
the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is engaged , at San Angelo , Texas, in
the manufacture of tractor weights . It admits that
its annual out-of-state sales exceed $50,000.
If. THE LABOR ORGANIZATION INVOLVED
TRIAL EXAMINER'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: The prin-
cipal question presented by this case is whether an
employer who, when presented with a union's de-
mand for recognition on the basis of card designa-
tions by an alleged majority, refuses recognition on
that basis and demands a Board-conducted elec-
tion, but takes no action which either constitutes an
Respondent does not deny that the Union is a
labor organization and I find that it is.
III. THE UNFAIR LABOR PRACTICES
A. Chronology and Issues
In spite of the length of the record and the un-
necessary contentiousness with which the evidence
' On a charge filed October I I. 1966, and an amended charge filed Oc-
tober 28, 1966
-' The General Counsel' s motion to correct typographical errors in the
transcript was not opposed and is granted Additional inadvertent errors
have been corrected
172 NLRB No. 183
B & W ENGINEERING & MANUFACTURING CO. 1575
was adduced, the relevant and material facts of this
case are not substantially in dispute. Accordingly,
except where otherwise noted, the factual narration
herein is based upon the combined testimony of
both Union and Respondent officials, with minor
and immaterial discrepancies ignored.
1. Background and organization
Immediately prior to October 11, 1966,3 Respon-
dent had 51 employees, of whom 45 appear to have
been nonsupervisory production and maintenance
employees.'
Late in September, Frank Parker, business
manager of the Union, which has its office at Big
Spring, Texas, heard that Respondent's employees
were interested in union organization and he as-
signed the task to Kenneth Howell, the business
representative whose territory included San An-
gelo.
Howell visited San Angelo on October 6, and
held a meeting with 23 of Respondent's employees.
At this meeting, according to Howell, he explained
the benefits of union affiliation and told the men
that, if the Union obtained authorizations from two-
thirds of the employees, it would demand recogni-
tion from the Respondent. If recognition should be
refused, he said, the Union would call a strike to
obtain it since the process of going through an elec-
tion took too much time. All 23 present at the
meeting signed authorization cards and Howell ad-
ministered a membership oath to them. He also left
blank cards with two of the employees for signature
by employees not present at the meeting, and he in-
structed them to leave any additional signed cards
they might obtain with a certain local member of
the Communication Workers' Union. On October
8, he testified, he was informed that 10 additional
signed cards were in the hands of the member of
the Communication Workers' Union and he so in-
formed Parker.
2. Demand for recognition
On Monday morning, October 10, Parker and
Howell drove to San Angelo, picked up the 10 ad-
ditional cards, and proceeded to Respondent's
plant, reaching there at about 9:15 a.m. They
parked their car outside the plant and had just
passed through the gate into the yard when they
were met by an automobile on its way out. The
driver of the car, George Beard, president of
Respondent, stopped and asked them what they
wanted. They said they were looking for George
Beard and he said he was George Beard. Parker
thereupon gave Beard his own name, introduced
Howell and said that they were officials of a union
which represented his employees; they said that
they wanted recognition of the Union and negotia-
tions.5
Beard said that he was on his way to keep an ap-
pointment but would return within the hour and he
suggested that they see him at 10:30 when he would
be able to talk with them.' Beard then drove away
from the plant and, as he passed the courthouse, he
saw Earl Smith, the company counsel, who was
about to enter the building. In a brief sidewalk con-
ference Beard told Smith what had happened,
Smith said he would be on trial all that day, and
Beard then left to keep his appointment.
At 10:30, Parker and Howell returned to the
plant: they said they had an appointment with
George Beard and were ushered into the office,
where George Beard and his son, Lee, corporate
secretary and the plant's operations manager, were
waiting for them.' George Beard greeted them,
again asking the purpose of their visit. Parker, who
did all the talking, said that the Union represented
Respondent's employees in an appropriate unit and
wanted to sit down and bargain. Beard answered
that the company attorney was engaged in court
that day but would be available the next day; that
he did not feel himself capable of dealing with the
Union's representatives on this matter and that,
since the Union had had all the time it desired, he
needed a bit of time as well. Beard also asked for
an explanation of the term "unit" and Parker an-
swered either generally, that it was a method of
designating certain employees for bargaining pur-
poses (as Beard testified), or both generally and
specifically, by making that statement and then
reading off, from a slip of paper previously
prepared, a technical description of the production
and maintenance unit, with inclusions and exclu-
All dates herein not otherwise designated arc 1966
The list of employees which Respondent prepared from its records and
introduced into evidence without objection contains 51 names, each with
an identifying job designation The names of the five employees designated,
respectively, as "office expediter," "office manager," "finishing supt,"
"receptionist" and "foundry Supt" are crossed out and it was agreed that
these people were not in the production and maintenance unit Examina-
tion of this list, however, shows that the name of another employee,
designated as "melting dept supt," and receiving a salary of $700 per
month, is not crossed out This appears to be an inadvertence and the list
will be treated as if this name had also been crossed out
' Parker and Howell also testified that they referred to the authorization
cards, which Howell held in his hand, and offered to permit Beard to in-
spect them and check them against his payroll records They conceded,
however, that there was no further reference to the cards at this time and
that nothing was done with them
" Although Parker and Howell both testified that Beard said he would not
talk with them and that they should talk with his attorney who would be
available at 10 30, their other testimony and the subsequent meeting which
they admittedly had with Beard at 10 30 require me to reject their
testimony on this point
' Both George and Lee Beard testified that George Beard requested his
son to remain in the room during this meeting and both Howell and Parker
testified that there was a fourth man in the room, wearing a work uniform
and seated at another desk, who took no part in the conversation There is
no substantial disagreement concerning the conversation at this meeting
and Lee Beard's testimony parallels not only that of his father but of
Howell and Parker as well Why the union representatives and the General
Counsel chose to make an issue of the identity of this other man and to in-
sist that it was not Lee Beard finds no explanation in the record, but I find
that Lee Beard was present
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions , which the Union considered appropriate (as
Parker testified ). When Beard first asked for time
to get his attorney , Parker initially insisted that he
and Howell were there for bargaining and wanted it
to begin instantly but he finally agreed to wait until
the next morning when , Beard said, Respondent's
attorney would surely be available and a special ad-
visor from San Antonio could also be present.
There was talk about whether the meeting could be
held at 10 or 10:30 the following morning and
Beard asked Parker to telephone the plant at about
2 p.m., when he could tell him the precise time of
the meeting.
Beard testified , and Parker denied , that during
this conversation Beard expressed doubt that the
Union represented the employees . Parker's
testimony , however , that he offered Beard an op-
portunity to check the cards against the payroll
records , convinced me that the question arose and
that , when Parker said that the Union represented
the employees , Beard 's reaction was, as he testified:
" I don 't believe you ," and I so find.
At about 2:25 that afternoon, Parker reached
George Beard by telephone . Beard , according to his
testimony , told Parker that he thought that he and
his counsel could meet with the union representa-
tives the next morning but that he could not fix the
time definitely since they were " still working on it";
that Respondent's counsel , Smith , was engaged in a
trial and that a special representative was coming in
from San Antonio . Beard also testified that he sug-
gested that Parker put his demand and contentions
in writing so that it could be shown to company
counsel. Parker denied that Beard made any
reference to a meeting but simply requested that
the Union's request be put in writing and that he,
Parker, thereupon stated that he had seen this
"stalling technique" before, that the Union had
signed authorizations from 35 of the "less than 40"
employees and that , unless recognized, would strike
the plant . Beard asked when such strike would be
called and Parker answered that he could not state
definitely but that it would be "within the next cou-
ple of days." To this Beard exclaimed : "You are
the kind of outfit that demands recognition in the
morning and strikes in the afternoon " and at about
that time Parker hung up, ending the conversation.
Whether Beard assured Parker in this telephone
conversation that the conference could almost cer-
tainly be held the next morning and that only the
precise hour was uncertain , as Beard testified, or
whether Beard said that no meeting of any kind
could be held in the near future and that the Union
should put its request in writing , as Parker testified,
is one of the few issues of fact in this case . While I
do not regard the issue as critical in reaching a
decision herein, it casts some light on Respondent's
attitude toward the problem presented.
Lee Beard , who listened to the conversation on
an extension telephone , testified that Parker asked
whether the meeting could be held the next day and
his father said the time was indefinite ; that Parker
again asked at what time the meeting would be held
and his father then stated that company counsel,
Earl Smith , had said it looked like he would be tied
up in court all the next day; and that the San An-
tonio representative had not yet communicated
with them , so that it was impossible at that time to
tell whether the meeting could be held. Lee Beard
also testified that his father asked Parker to put his
demand in writing for company counsel to look
over that evening so that , even if Smith could not
be present but the San Antonio representative did
arrive , they could " still hold the meeting."
Upon all of the evidence relating to this issue,
and from my observation of the demeanor of the
witnesses , I conclude that George Beard's
references to a meeting to be held some time the
next day were expressed with much less certainty
than he stated in his testimony . Although the
evidence shows that both Smith and the San An-
tonio representative were actually available and did
meet with Respondent 's officials the next morning,
it also shows that their availability was not known
to George Beard until much later that afternoon.
Lee Beard made an effort to corroborate his father,
but the statements of George Beard , as reflected in
Lee's testimony , are not nearly so definite concern-
ing the meeting . Moreover , Earl Smith testified
that , when he spoke with George Beard during the
noon recess , he instructed Beard to direct the union
representatives to put their request in writing.
Accordingly, I find that George Beard's state-
ment to Parker on the telephone at 2:25 p .m., was
not, as he testified , that he was "pretty sure" about
the meeting and would do everything he could to
have it at 10:30 a . m. the following day. On the con-
trary , I find that George Beard was vague about
meeting and, as instructed by Smith , directed
Parker to put the Union 's demand in writing. It was
this evasiveness , I find, and not Beard's minor
reservation of absolute certainty about the precise
time of the meeting , that led Parker to refer to
Respondent 's conduct as a "stalling technique."
3. The strike
About 6 p.m., that day , Howell held a meeting of
the employees who had signed cards ; he informed
them that Respondent had refused to recognize and
bargain with the Union and he proposed that, as
planned , a strike be called . Those present agreed,
unanimously voting to strike at once , and the meet-
ing recessed at about 8 p.m. At 8 : 22, Howell sent a
telegram to George Beard , at his home , informing
him that , because of Respondent 's refusal to bar-
gain , the plant would be struck at 4:45 a . m., the fol-
lowing day , unless contact was made with Howell,
giving the name of the motel where he was staying.
Parker , who had left San Angelo before the meet-
ing started , returned to the Union 's office in Big
Springs, from which he wrote a letter to Beard stat-
B & W ENGINEERING & MANUFACTURING CO.
ing that they had had three conversations that day;
that the Union had demanded recognition for a
stated unit and had offered to show cards signed by
35 employees in the unit; that Respondent had
declined to recognize the Union; and that he,
Parker, had said that a strike would be called within
"the next couple of days" because of such refusal.
The letter closed with an expression of hope that
Respondent would reconsider its refusal. At the
same time , Parker prepared and mailed to the
Board's Regional Office at Fort Worth, a charge of
violation of Section 8(a)(1) and (5) of the Act
based upon Respondent's refusal to bargain.
The following morning at 4:45, when the first
shift was due to report, employees on that shift,
together with Howell, gathered outside the plant
gate . As additional employees arrived, they
remained outside. At 5 a.m., Juan Velez, foreman
of the cleaning department, telephoned Lee Beard
and told him that the employees were not coming
in to work but were marching outside the gate car-
rying signs and stopping others from coming to
work. Beard instructed Velez to continue his
preparations for a normal day and to put to work
any employees who came in.
George Beard, awakened by his son at 6 a.m., ar-
rived at the plant at 7, accompanied by Earl Smith,
company counsel. According to Beard's testimony,
when he entered the plant he saw between 25 and
35 men outside the gate, and he conceded that
more than half of the employees did not come to
work that day.8
At 8:35 a.m., Beard received the telegram which
had been sent to him at his home by Howell the
previous evening but which had not been delivered
because he had not been at home. The letter sent
by Parker from Big Springs also arrived that morn-
ing.
Later that morning , Respondent's officials and
Earl Smith, its attorney, met with one Cliff Shawd,
a labor relations advisor from San Antonio. Smith
was authorized to write the Union a letter and he
did so, acknowledging receipt of the letter of the
10th, noting that the claim of representation of a
majority of the employees was unsupported and
that the statement of an offer to show the cards was
false. The letter states : "We sincerely doubt that a
majority of our employees have knowlingly and
freely designated your union to represent them in
dealing with our management ," and expresses a be-
lief that the proper way to resolve the matter is
through a Board election.
8 The stipulated list of employees , prepared by Respondent from its
records, shows that , of the 45 employees in the unit , 35 went out on strike
on October I I
9 For reasons , if any, not apparent in the record, the General Counsel
and Howell strongly contended that the police car had been stationed in-
side the plant premises on the night preceding the strike and that it was
there during the first day There is no evidence in support of this contention
other than Howell 's testimony and all other testimony on this point is to the
1577
4. Coercion at the picket line
Lee Beard testified that at 6 a.m., before he left
home to go to the plant, a woman telephoned and
said she was talking for a plant employee named
DeLeon; that DeLeon wanted Beard to know that
he had tried to go to work and wanted to work but
that he had been prevented from doing so. Beard
also testified that, later that morning at the plant,
he received calls from employees Philipe Ramirez,
Jim Benson, Jesus Martinez, and Lupe Garcia, who
said they had tried to come to work but had been
stopped and threatened. There was some cor-
roboration for his testimony and some independent
testimony that employees attempting to enter the
plant were threatened and prevented from going to
work. There was also testimony that Howell told
the striking employees that, if they whipped anyone
for crossing the picket line and were jailed for
doing so, he would get them out. It also appears
that Howell paid the fine of an employee who
pleaded guilty to a charge of using abusive language
and that threats were made against working em-
ployees and replacements during the course of the
strike. During the night following the first day of
the strike and for most of the second day,9 the po-
lice chief of San Angelo stationed an officer inside
the plant premises but there is no evidence that any
police action was taken by him.
5. Respondent's petition
On October 18, Respondent filed an election
petition in the Board's Regional Office at Fort
Worth but, when the Union declined to consent
that the proceeding go forward notwithstanding the
filing of the charges herein, the petition was
dismissed.
6. Reinstatement
On October 25, the Union sent Respondent's
counsel a telegram, making an "unconditional offer
to go back to work" at 8 a.m. on the 26th. At that
time the striking employees reported to the plant
under instruction from Howell to say that they were
there to resume their jobs but to refuse to sign any
papers. When the men went into the plant Howell
returned to his motel room to await reports. His
summary of the situation, made at that time, shows
that 6 of the strikers had previously returned to
work; that 7 were reinstated that day; and that 22
contrary The police detective who received the initial assignment testified
that he had already heard about the strike when he went on duty at 3 30
p in He stationed himself inside the premises at 4 p in , and, he testified, he
was relieved at midnight by a regular police cruiser manned by an officer in
uniform Had a police car and a uniformed officer been at the plant when
the strike began , some witness would certainly have mentioned it I find
Howell 's testimony on this matter incredible and I reject at
354-126 O-LT - 73 - pt. 2 - 28
1578 DECISIONS OF NATIONAL
were not reinstated. The summary of Respondent's
personnel records does not completely agree with
Howell's list10 but the discrepancies are minor and,
in view of the decision in this case, immaterial. It
was stipulated that 10 of the 21 or 22 not reinstated
on October 26, subsequently reentered Respon-
dent's employ
7. Interrogation
Two of Respondent's employees, both in the de-
partment under the supervision of Juan Velez,
testified that they were questioned by him, before
the strike, about union activity among the em-
ployees. Eulogio Torres Castro testified that, on the
day before the strike, i.e., October 10, Velez came
to him where he was working and asked him "if he
knew anything about the union and about a
meeting"; that he answered that he "didn't know
anything"; and the conversation ended.
Frank Santellano, one of those active in the sol-
icitation of union authorization cards, testified that
on Saturday, October 8, Velez came to him at his
work station and asked him whether he had heard
anything about a union trying to get in the plant.
Santellano answered that he had not heard anything
and the conversation ended. He also testified that
on October 10, between 8 and 9 a.m., Velez again
came to him, this time asking him whether he was
going to be "for or against the Union"; that he said
he did not know, and that Velez then said: "I guess
they are going to ask each one of you whether you
want a union or not"; but he did not answer and
Velez left.
The conversation, if it may be called that,
between Velez and Torres Castro is so brief and
casual that it has no probative value. The almost
identical conversation with Santellano, however,
must be evaluated in connection with the further
conversation which followed and which, the witness
testified, occurred on the day before the strike. But
even if completely credited and taken together, the
two conversations fall short of coercion: Santellano
testified,that he and Velez were personal friends in
the plant and that they had drunk beer together on
the outside. The question was put to Santellano at
his work station in words that did not, in them-
selves, convey anything more than a simple inter-
rogatory and his answer of "I don't know" was ac-
cepted without question. Velez' "prediction" that
the employees would probably be polled, also if
credited, similarly carried no hidden message of
threat or coercion since it was a prediction of
something that Respondent might do with propriety
if the circumstances were correct."
Although Santellano's testimony was not impres-
sive in substance, and must be viewed with scepti-
10 Howell lists Pablo Rodriguez as one who "crossed picket line," i e ,
returned to work before the others, but Respondent 's record shows that he
returned to work October 26 Howell lists Eulogio Torres Castro as not
LABOR RELATIONS BOARD
cism, since it comes from one involved in the
Union's organizational activities and tends to give
support to the Union's charge in a critical area, it is
nevertheless not inherently improbable and Juan
Velez was not called by Respondent to refute it.
Accordingly, I accept it and find that the conversa-
tion occurred as Santellano testified. Notwithstand-
ing such acceptance, however, I find that there was
nothing coercive in it and conclude that no finding
of violation of Section 8(a)(1) may be predicated
thereon.
8. Contentions of the parties
The General Counsel contends that Respondent
coercively interrogated employees on October 8
and 10; that the evidence shows that the Union was
the designated collective-bargaining representative
of Respondent's employees on October 10 and 11;
that Respondent's refusal to bargain was not based
upon a good-faith doubt concerning the Union's
status and such refusal, therefore, was an unfair
labor practice; that the strike, which began on Oc-
tober 11, was based upon this refusal to bargain
and, therefore, an unfair labor practice strike, dur-
ing which the striking employees could not be per-
manently replaced, so that Respondent's refusal to
reinstate some of them on October 26 was also an
unfair labor practice.
Respondent contends that "in the absence of
substantial unfair labor practices calculated to
destroy any alleged union majority status and/or in
the absence of any repudiation of a previous agree-
ment to voluntarily recognize the Union, the Com-
pany had an absolute right to petition for and
secure an election conducted by the Board in order
to determine the employees' free, untrammeled,
and uncoerced desires by secret ballot" and that,
therefore, its refusal to bargain with the Union was
not, on the evidence in the record, an unfair labor
practice.
9. The issue
The question determinative of this case is, in my
opinion, not whether Respondent was absolutely
entitled to an election before being required to bar-
gain with the Union but whether the evidence in
the record established that Respondent, when it
refused to bargain with the Union, did not have a
good-faith doubt concerning the Union's majority
status. In view of the state of the record herein,
moreover, this is an issue which, if decided adverse-
ly to the General Counsel, precludes consideration
of the other issues presented.
having been taken back but Respondent 's record shows him as having also
returned to work October 26
u See Struksnes Construction Co , Inc , 165 NLRB 1062
B & W ENGINEERING & MANUFACTURING CO. 1579
B. Discussion and Conclusions
As noted above, the critical issue to be deter-
mined herein is whether it has been established, by
all of the proof in this record, that Respondent's
refusal to recognize the Union, on October 10, and
the following days, was not based upon a good-faith
doubt of the Union's representative status.
The principle of decision applicable to this case
is that stated by the Board in Aaron Brothers Com-
pany of California, Inc., 158 NLRB 1077, 1078-79,
as follows:
While an employer's right to a Board elec-
tion is not absolute, it has long been
established Board policy that an employer may
refuse to bargain and insist upon such an elec-
tion as proof of a union's majority unless its
refusal and insistence were not made with a
good-faith doubt of the union's majority. An
election by secret ballot is normally a more
satisfactory means of determining employees'
wishes, although authorization cards signed by
a majority may also evidence their desires. Ab-
sent an affirmative showing of bad faith, an
employer, presented with a majority card
showing and a bargaining request, will not be
held to have violated his bargaining obligation
under the law simply because he refuses to rely
upon cards, rather than an election, as the
method for determining the union's majority.
Here, the Trial Examiner, in effect, found
that good faith was missing because Respon-
dent did not offer any evidence "warranting a
conclusion that the Union's claim [of majority]
was inaccurate or unsupportable." But where,
as here, there is no prior bargaining relation-
ship between the parties, as the Board recently
held in John P. Serpa, Inc., it is the General
Counsel who must come forward with evidence
and affirmatively establish the existence of
such bad faith.
Whether an employer is acting in good or
bad faith in questioning the union's majority is
a determination which of necessity must be
made in the light of all the relevant facts of the
case , including any unlawful conduct of the
employer, the sequence of events, and the time
lapse between the refusal and the unlawful
conduct. Where a company has engaged in
substantial unfair labor practices calculated to
dissipate union support, the Board, with the
courts' approval, has concluded that employer
insistence on an election was not motivated by
a good-faith doubt of the union 's majority, but
rather by a rejection of the collective-bargain-
ing principle or by a desire to gain time within
which to undermine the union . However, this
does not mean that any employer conduct
found violative of Section 8(a)(1) of the Act,
regardless of its nature or gravity, will neces-
sarily support a refusal-to-bargain finding. For
instance, where are employer's unfair labor
practices are not of such a character as to
reflect a purpose to evade an obligation to bar-
gain , the Board will not draw an inference of
bad faith.
On the other hand, an employer's bad faith
may also be demonstrated by a course of con-
duct which does not constitute an unfair labor
practice. Thus, in Snow & Sons, the employer's
objective of seeking delay and its rejection of
the collective-bargaining concept was
manifested when it repudiated a previously
agreed-upon card check indicating the union's
majority status by continuing to insist on an
election. (Footnotes omitted)
Similar applications of this principle-even in
some cases where there were other unfair labor
practices found-appear in the Board's decisions in
Snap Out Binding & Folding, Inc. et al., 166 NLRB
316; Union Carbide Corp. et al., 166 NLRB 441;
National Cash Register Co., 167 NLRB 1047;
Sprouse-Reitz Co., 168 NLRB 378; The Flurocarbon
Company, 168 NLRB 629; United Buckingham
Freight Lines, 168 NLRB 684; and, most recently,
in Super X Drugs of West Virginia, Inc., 169 NLRB
264, issued January 22, 1968.
In this case, the two expressions of Respondent's
doubt concerning the Union's status as designated
bargaining agent of the employees were addressed
to its majority status. Beard's reaction to Parker's
claim that the Union was the designated representa-
tive of the employees was, as found above: "I don't
believe you," and Respondent's formal answer to
the written demand for recognition was also an ex-
pression of doubt concerning the Union's status,
coupled with a request that the matter be resolved
by a Board election.
Although Respondent conceded that 35 of the 45
employees in the unit did not report for work when
the strike began, there is in the record, neverthe-
less, substantial and undisputed evidence of coer-
cive activity at and in connection with the picket
line. The testimony shows that, although there may
have been as many as 35 men standing outside the
plant gate when the strike began, only 3 of them
carried picket signs . Accordingly , it is not possible
to find that the mere number of the absentees con-
stituted such clear notice to Respondent of union
designation by a majority as to make absurd its
claim of good-faith doubt.12
Moreover, it is to be noted that there is no
evidence of conduct by Respondent that would
have made impossible a free expression of the em-
ployees' desires for representation by the Union in
an election. Respondent not only offered to abide
"Cf N L R B v Preston Feed Corp, 309 F 2d 346 (C A 4), enforcing
134 NLRB 629
1580 DECISIONS OF NATIONAL
by the results of such an election but it did
everything it could to obtain one.
As appears from the foregoing , the General
Counsel has not fulfilled the task required of him in
this case , i.e., that of proving , by a fair preponder-
ance of the evidence , that Respondent did not
have, on October 10 , and for several days
thereafter , a good-faith doubt that the Union was
the designated collective -bargaining representative
of a majority of its employees in the unit. This
being so, it becomes unnecessary to consider or de-
cide the validity of the individual card designations
by Respondent 's employees.
Furthermore , since it cannot be found that
Respondent 's refusal to recognize and bargain with
LABOR RELATIONS BOARD
the Union on the basis of the card designations was
an unfair labor practice , it follows that the strike
was not an unfair labor practice strike and that
Respondent did not commit unfair labor practices
by replacing the strikers.13
CONCLUSIONS AND RECOMMENDED ORDER
On the basis of the foregoing findings of fact, it is
concluded that a preponderance of the evidence in
the record does not support the allegations of the
complaint that Respondent has engaged in unfair
labor practices . Accordingly, it is hereby ordered
that the complaint be, and it hereby is , dismissed.
13 It was neither alleged nor proved that Respondent discriminatorily
refused to reinstate any striker whose place had not been filled