Snow & Sons

National Labor Relations Board - Board Decisions

Nov 27, 1961

134 N.L.R.B. 709 (N.L.R.B. 1961)

SNOW & SONS 709
have earned from March 6, 1961 , the date of the discrimination , until a date 5 days
after the Respondent notified the above Company and Hunt by telegram that it had
no objection to the future employment of Hunt ,14 less Hunt's net earnings during
said period.
Upon the basis of the foregoing findings of fact , and upon the entire record in
this case, I make the following:
- CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2 The Respondent Union is a labor organization within the meaning of Section
2(5) of theAct.
3. By attempting to cause and causing Dixie Glass Co., Inc, of Houston , Texas,
to discriminate against Fred Hunt in regard to the hire and tenure of his employ-
ment , the Respondent Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
4. By restraining and coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act, the Respondent Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
14 As hereinbefore noted , the Respondent ' s telegram notifying the Company that it had
no objection to the continued employment of Hunt ( with a copy to Hunt) is undated
The date of receipt of the telegram by the Company and Hunt , tolling as it does the
amount of backpay owing Hunt, shall be determined during the compliance stage of this
proceeding
Fred Snow , Harold Snow and Tom Snow d/b/a Snow & Sons
and Fruit and Vegetable Packers and Warehousemen Union
Local 760, affiliated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America.
Cases Nos. 19-CA-2004 and 19-CA-2052. November 27, 1961
DECISION AND ORDER
On January 24,1961, Trial Examiner Eugene K. Kennedy issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaints. Thereafter, the Charging Party and the General
Counsel filed exceptions and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in these
proceedings, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent consistent with
our decision herein.
In connection with the 8(a) (5) issue , it appears that on June 6 and
7, 1960, the Union obtained signed applications for membership from
31 of approximately 52 employees in the unit found appropriate herein.
134 NLRB No. 57.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, two employees testified that the union representatives in -
duced them to sign cards on June 7 by statements to the effect that one
purpose of the cards was to obtain an election. Reasoning that the
testimony of these two witnesses invalidated the two cards as evidence
of union majority and "tainted with doubt" the process by which
the remaining cards were signed, the Trial Examiner found that the
General Counsel had failed to prove an essential element of an 8 (a) (5)
violation by failing to prove that the Union represented a majority
of Respondent's employees. We do not agree. Assuming that the two
cards were tainted, there is no evidence that any other employee was
induced to sign a card by representations that it was to obtain an
election. Accordingly, as eliminating the two questionable cards does
not destroy the Union's majority, we find that the Union represented
a majority of the Respondent's employees on and after June 7, 1960.
The Trial Examiner found that, in any event, even assuming a ma-
jority, the Respondent did not violate Section 8 (a) (5) of the Act as
it acted in good faith in insisting upon a Board-conducted election.
Relying primarily upon Joy Silk Mills,2 the Trial Examiner reasoned
that the Respondent was entitled to insist upon a Board-conducted
election where it did not do so for the purpose of gaining time to dissi-
pate the Union's majority status. We do not agree that Joy Silk Mills
is controlling in the circumstances present here. When initially faced
with a demand for recognition, the Respondent refused to recognize
the Union on the ground that it doubted the Union's majority status.
Later in the same day, however, the Respondent through one of its
partners agreed to a check of the signature cards presented by the
Union which check indicated that a majority of Respondent's em-
ployees had applied for union membership. The Respondent never-
theless continued in its refusal to recognize the Union and bargain
with it and insisted on a Board election although it did not question
the accuracy or the propriety of the card check, asserting, in that con-
nection, that it never considered the card check binding on it. As to
the latter, we see no warrant for invalidating the card check and
therefore find that Respondent had no reasonable doubt as to the
Union's majority status. That this is so, is further apparent from
Respondent's position that it wanted an election because the employees
might change their minds. The Board has held' that the right of an
employer to insist upon a Board-directed election is not absolute.3
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
3 West Coast Luggage Co ., 105 NLRB 414, 41'8.
a Joy Silk 3li118 , Inc, 85 NLRB 1263; enfd 185 F 2d 732, cert. denied 341 U.S 914
s See United Butchers Abattoir, Inc., 123 NLRB 946, 957 ; Mine Workers v. Arkansas
Flooring Co., 351 US 62
SNOW & SONS 711
valid ground therefor, he has failed to fulfill the bargaining require-
ments under the Act. Accordingly, by refusing to bargain with the
Union after its majority status in an appropriate unit' had been
established, the Respondent violated, Section 8(a) (5) and (1) of the
Act.'
Upon Respondent's refusal to bargain, certain of its employees
walked out in protest on June 7, 1960, and remained on strike until
August 15, 1960, at which time 11 strikers applied for reinstatement.
Nine were denied reinstatement and two refused reinstatement be-
cause of Respondent's failure to reinstate the nine. The Trial Ex-
aminer, having found that no unfair labor practices were committed
by the Respondent, concluded that there was no unfair labor practice
strike carrying with it the unconditional right to reinstatement. As
we have found that Respondent unlawfully refused to bargain and as
the strike was bottomed entirely upon this refusal, it is clear that
Respondent unlawfully refused to rehire the nine strikers upon their
unconditional offer to return to work and is obligated to rehire the two
other strikers upon application. Moreover, even if the strike be viewed
as economic, we find that Respondent violated Section 8(a) (3) in
refusing to hire the mentioned nine strikers as Respondent had jobs
available for them in corn, such refusal being because of their union
adherence. Respondent defended its refusal to hire them in corn on
the grounds that they lacked necessary qualifications and experience
and that, since production was at full volume when they requested
hire, there was no time to train them. The evidence, however, does
not bear out Respondent's contentions in this matter. Thus, Mrs. Fred
Snow testified, in effect, that a satisfactory employee in asparagus
would perform adequately in corn. Also, eight employees who, like
the strikers, had no prior experience in corn packing, were hired by
the Respondent after the strikers were denied jobs in corn. With
regard to the lack of time for training new employees, we note that
17 employees without corn pack experience were hired after the season
was well under way. In addition to offering no credible reason for
refusing to hire the strikers, Respondent further violated its own
employment practice which had been to give preference in employment
in corn to those applicants who had performed satisfactorily in aspara-
gus.6 Accordingly, we find that Respondents' asserted reasons for not
hiring them in corn were mere pretexts to cloak its discriminatory
motivation in refusing to hire them.
4 The appropriateness of the unit sought was admitted by Respondent's answer
5 Member Rodgers would affirm the Trial Examiner's finding that the Respondent did
not violate Section 8(a) (5) because there is no evidence that the Respondent was moti-
vated by bad'faith in requesting a Board-conducted election before recognizing the Union
as the representative of its employees in the asparagus packing operation
6 We find that the strikers' were satisfactory workers in asparagus, as Respondent
offered them jobs in-asparagus during the next season without criticism, of their work.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order it to cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
As we have found that Respondent has unlawfully refused to bar-
gain, we shall order that Respondent, upon request, bargain collec-
tively with the Union and, if an understanding is reached, that such
understanding be embodied in a signed agreement. As we have found
that Respondent unlawfully refused to reinstate its striking employees
upon application, we shall order it to offer to all the strikers,? who
have not been reinstated, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, discharging, if neces-
sary, any replacements in order to provide work for the strikers. We
shall also order it to make whole strikers, including those who may
have subsequently been reinstated, for any loss of earnings they may
have suffered by reason of the discrimination against them, by pay-
ment to each of a sum of money equal to that which each normally
would have earned as wages during the period (a) from their uncondi-
tional request for reinstatement to the date of the Intermediate Report
herein," and (b) from the date of this Decision and Order to the date
of Respondent's offer of reinstatement less the net earnings of each,
to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolrworth Company, 90 NLRB 289.
Upon the basis of the foregoing, and upon the entire record in this
case, the National Labor Relations Board hereby makes the following
additional :
7 With regard to Corrine Morrow and Alice Rowland , who were offered reinstatement
but refused in protest to Respondent ' s failure to reinstate the remaining strikers , we shall
order Respondent to reinstate them upon application We do not consider Respondent's
offer to Morrow and Rowland as constituting a valid , unqualified tender of reinstatement
under the circumstances Kitty Clover, Inc, 103 NLRB 1665 , 1667, enfd 208 F. 2d 212
(C.A. 8) ; Draper Corporation, 52 NLRB 1477 , 1478-1480 , reversed on other grounds
145 F . 2d 199 ( C A. 4) ; Poultrymen'8 Service Corporation, 41 NLRB 444 , 462, affd.
138 P. 2d 204 (CA 3) , The Good Coal Company, 12 NLRB 136 , 149, enfd. 110 F 2d 501
(CA. 6), cert denied 310 U.S 630 , Rapid Roller Co, 33 NLRB 557, enfd . 126 P. 2d
452 (C A. 7). However, as it appears that the General Counsel explicitly stated at the
hearing that he was not seeking any relief for Morrow and Rowland except as unfair
labor practice strikers , we shall order only that , in the event of Respondent 's refusal if
any, to reinstate them upon request, the Respondent make them whole by payment to
each of them a sum of money equal to that which she normally would have earned as
wages during the period from 5 days after the date on which she applies for reinstate-
ment, to the date of the Respondent ' s offer of reinstatement , such loss to be computed in
the manner set forth in F W Woolworth Company, 90 NLRB 289
Members Rodgers and Fanning are of the opinion, that as the Board is accepting the
General Counsel 's contention that Morrow and Rowland are strikers, it is unnecessary to
discuss the offers of employment made by Respondent , and they do not subscribe to the
citation of the above cases in connection with this dicta.
8 When, as here, the Board , contrary to the Trial Examiner , orders reinstatement of
employees , backpay is normally abated from the date of the Intermediate Report to the
date of the Board 's Decision and Order The Jackson Pre8s, Inc , 96 NLRB 897
SNOW & SONS
CONCLUSIONS OF LAW
713
4. All production and maintenance employees employed in the proc-
essing plant located at Outlook, Washington, and lots and sheds ad-
jacent thereto, excluding office clerical employees, fieldmen, guards,
professional employees, floormen and floorladies, and all other super-
visors as defined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section 9 (b) of
the Act.
5. At all times since June 7, 1960, the above labor organization has
been, and now is, the exclusive representative of all the employees in
the above appropriate unit, for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
6. By refusing to recognize and bargain with the Union on and
after June 7, 1960, Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8(a) (1) and (5)
of the Act.
7. The strike which commenced on June 7, 1960, was caused and
prolonged by Respondent's unfair labor practices and hence was an
unfair labor practice strike.
8. By refusing immediate reinstatement to the unfair labor practice
strikers, upon their unconditional request, Respondent has discrimi-
nated in regard to their hire and tenure of employment, thereby dis-
couraging membership in the above labor organization, and has
thereby engaged in and is engaging in unfair labor practices within
the meaning of 8 (a) (1) and (3) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that Respondent, Fred Snow,
Harold Snow and Tom Snow d/b/a Snow & Sons, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Fruit and Vegetable Packers and
Warehousemen Union Local 760, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization, by refusing immediate
reinstatement to unfair labor practice strikers upon their uncondi-
tional request or by discriminating against its employees in any other
manner in respect to their hire or tenure of employment, or any term
or condition of employment, except to the extent permitted by Sec-
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8 (a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
(b) Refusing to bargain collectively concerning wages, hours, and
other terms and conditions of employment with Fruit and Vegetable
Packers and Warehousemen Union Local 760, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of all its employees
in the following appropriate unit :
All production and maintenance employees employed in the proc-
essing plant located at Outlook, Washington, and lots and sheds ad-
jacent thereto, excluding office clerical employees, fieldmen, guards,
professional employees, floormen and floorladies, and all other super-
visors as defined in the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named Union, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named Union
as the exclusive representative of the employees in the above-described
unit.
(b) Offer to Gloria McDaneld, Helen Ford Wood, Ruth Ford
Evans, Agnes Bradford, Laura Northrup, Thomas Maskell, Addie
England, Marilyn Wilson, and Mary Byers immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suffered because
of the discrimination against them in the manner set forth in the sec-
tion hereof entitled "The Remedy."
(c) Upon request, reinstate Corrine Morrow and Alice Rowland
to their former or substantially equivalent positions and make each of
them whole for any loss of pay suffered by them as a. result of its
failure to reinstate them within 5 days after their unconditional
application for reinstatement.
(d) Preserve and, upon request, make available to the Board or
its agents, for examination.and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
SNOW & SONS 715
and all other records necessary and appropriate to facilitate the check-
ing of the amount of backpay due and the rights of employment under
the terms of this Decision and Order.
(e) Post at its plant in Outlook, Washington, copies of the notice
attached hereto marked "Appendix." s Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
after having been duly signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of at least 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in Fruit and Vegetable
Packers and Warehousemen Union Local 760, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organiza-
tion, by refusing to reinstate immediately unfair labor practice
strikers upon their unconditional request or discriminating in
any other manner in respect to their hire or tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to join or assist the above-named or other labor
organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized by Section 8,(a) (3) of the Act, as
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL, upon request, bargain collectively with the above-
named Union for the following appropriate unit with respect to
rates of pay, wages , hours of work , and other conditions of em-
ployment. The appropriate bargaining unit is:
All production and maintenance employees employed in Re-
spondent 's Outlook, Washington , processing plant, and lots
and sheds adjacent thereto, excluding office clerical em-
ployees, fieldmen , floormen, floorladies, guards, professional
employees, and supervisors as defined in the Act.
WE WILL offer to Gloria McDaneld, Helen Ford Wood, Ruth
Ford Evans , Agnes Bradford , Laura Northrup , Thomas Maskell,
Addie England , Marilyn Wilson, and Mary Byers immediate and
full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they may
have suffered as a result of the discrimination against them.
AVE WILL, upon request , reinstate Corrine Morrow and Alice
Rowland to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and priv-
ileges, and we will make each employee Whole for any loss of pay
suffered by her as a result of our failure to reinstate her within
5 days after her application.
All our employees are free to become, remain , or refrain from be-
coming or remaining members of the above -named labor organization,
or any other labor organization , except to the extent that this right
may be affected by a lawful agreement requiring membership in a
labor organization as a condition of employment , as authorized in
Section 8 ( a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
FRED SNOW , HAROLD SNOW AND TOM SNOW
D/B/A SNOW & SONS,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was tried in Yakima , Washington , on October 4 and 5, 1960. It
stemmed from charges filed by Fruit and Vegetable Packers and Warehousemen
Union Local 760, affiliated with the International Brotherhood of Teamsters , Chauf-
SNOW & SONS 717
feurs, Warehousemen and Helpers of America , herein called the Union . The con-
solidated complaint issued by the General Counsel alleged that Fred Snow , Harold
Snow and Tom Snow d/b/a Snow & Sons, herein called the Respondent , violated
Section 8 ( a) (5) and ( 1) of the National Labor Relations Act, as amended, herein
called the Act , by refusing to bargain with the Union commencing on or about June 7,
1960 , and violated Section 8 (a)(3) and 8 ( a)(1) of the Act by refusing to reinstate
approximately nine employees who had gone on strike either on June 7 or 8, 1960.
Upon the entire record , my observation of the witnesses , and briefs submitted by
Respondent and the Union, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
As alleged in the complaint and admitted in the answer, Respondent is a partner-
ship, located in Outlook, Washington , engaged in the business of grading , precooling,
packing, and selling sweet corn and asparagus to processors and retail outlets.
During the 12 months preceding June 1960, Respondent sold goods valued in ex-
cess of $50 ,000 to enterprises located outside the State of Washington . Further,
Respondent , during the same period , sold goods valued in excess of $50,000 to
enterprises located in the State of Washington which are themselves directly engaged
in interstate commerce within the meaning of the Act.
The Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As alleged in the complaint and admitted in the answer , the Union is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent 's operations are seasonal and fluctuate in volume and duration de-
pending on availability of crops and marketing conditions. In general , however, the
asparagus pack commences about the middle of April and runs until approximately
the end of June . The corn pack starts approximately the beginning of July and runs
until the latter part of August. The employees usually are local inhabitants and
employment preference is given to employees who have previously been satisfactory
workers. Employment preference is also given to the employees who have worked in
the asparagus pack and who desire to work in the corn pack during the same year.
It was the practice of Respondent at the end of the asparagus season to have the
employees sign a book if they wished to work in the corn pack. It was also the
practice of Respondent to hire extra employees at the beginning of the corn and the
asparagus pack while the workload was still light , in order that the new employees
could be given instructions in their work . This was necessary because the employees
had to have some training and experience since their work was interdependent, in
that a slowdown at one point in the assembly line would have the effect of slowing
down the whole operation.
B. The events
On the evening of June 6 , 1960 , the Union obtained signatures from approximately
12 employees of Respondent , authorizing the Union as collective -bargaining repre-
sentative . In the early morning of June 7, 1960 , as the employees were going to work
in the vicinity of the Respondent 's premises , 19 additional authorization cards were
signed, making a total of 31 employees who had signed authorization cards. The
payroll records of Respondent indicate that as of June 7 it had approximately 52
employees.
After obtaining the signatures on the morning of June 7, representatives of the
Union , Ed Pomerinke , Charles Gorham , and Herschell Andrews, about 9 a.m., started
a discussion with Fred Snow , Harold Snow , and Tom Snow , partners and owners of
Respondent enterprise , relative to entering into negotiations looking towards the ex-
ecution of a collective -bargaining contract . Fred Snow , who was the father of
Harold and Tom Snow , requested that there be a National Labor Relations Board
election with a "normal" posting of 30 days, and Pomerinke replied that they were
seeking an immediate election and wanted it to take place within 72 hours.
It is undisputed on first arriving at Respondent 's office the Snows were informed
by a union representative that there was labor unrest. Respondent expressed doubt
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Union actually represented the number of employees that it claimed to rep-
resent, or that there was any substantial amount of labor unrest.
There was an impasse at this morning session of June 7, with the Union wanting
negotiations to start immediately, and the position of the Respondent remained in-
sistent on first having a secret election conducted by the National Labor Relations
Board.
Although requested to do so, the union representatives at no time showed a repre-
sentative of Respondent the signed cards or a blank one which would indicate the
nature of the cards signed by the employees.
It is undisputed that the morning of June 7 was the first occasion that Respondent
had knowledge of any type of union organization among its employees.
The morning meeting apparently was occupied mainly by the Union's insistence on
immediate action and Respondent's remaining firm in its desire to have a National
Labor Relations Board election. During the course of the morning Fred Snow with-
drew to another part of the office to make his usual telephone calls. Pomerinke about
this time informed the two Snow sons that the crew wanted action and they would be
pulled off the job by noon if something were not done. Following this Harold Snow
agreed to have an impartial person determine the authenticity of the signatures. It is
undisputed that Harold Snow agreed to this in order to ascertain if the union repre-
sentatives were representing any substantial number of employees. The signature
check conducted by a minister reflected that 31 employees out of a list of 49 sub-
mitted to him had signed cards in the possession of the Union.'
After Respondent received the information that 31 people had signed cards in the
Union's possession, another meeting was held with the same parties that afternoon,
from about 1 until 3 p.m. A substantial amount of time was devoted to the subject
of the mechanics of an election. The testimony of the witnesses is in agreement that
the union representatives thought that an election was unnecessary but were willing
at the afternoon session to have an election conducted that night and were opposed
to the proposition that the National Labor Relations Board should conduct the elec-
tion. The union representatives rejected Respondent's proposal that the National
Labor Relations Board office in Seattle should be called to ascertain how quickly an
election could be held?
This afternoon meeting adjourned without agreement at approximately 3 p.m.,
and 12 employees walked off the job at that time, having been advised by the union
representatives that the Respondent was reluctant to enter into negotiations.
That evening at the request of James Farrington, secretary-treasurer of the Union,
a meeting between Respondent and the Union convened at approximately 10 p.m.
Farrington and an attorney for Respondent named Garrison were the principal new
parties in these negotiations. Farrington announced that the offer of the afternoon
to have a union-conducted election was withdrawn and that the meeting was for the
purpose of entering into negotiations. In response to Farrington's question as to why
Respondent had agreed to a card check and now insisted on a National Labor Rela-
tions Board election, Harold Snow indicated that he wanted to find out if the Union
was talking for more than one or two people, and also to ascertain the extent of
labor unrest. Harold Snow's testimony is credited along with that of their attorney,
Garrison, that after Farrington had indicated to them that their card check precluded
them from having an election that an expression was made by one of the Snows to
the effect that they had been "trapped."
On the morning of June 8, a picket line was established by the Union and in
addition to the 12 employees who had left their jobs on June 7, 7 more refused
to cross the picket line to return to work. On August 14 Farrington advised Respond-
ent by letter that the strike had been terminated because of the Board's decision to
' General Counsel's Exhibit No 4, which is a letter from Reverend Pederson who made
the check, recites that out of the list of 49 employees 18 have abstained from voting and
31 have voted in favor In the course of his testimony he made it clear that this wording
was not based on any information supplied to him either by the Union or Respondent and
that the phrasing relative to "voting" was solely his own idea.
3 Business Representative Gorham said the earliest an election could be held was 21 days.
This credited and undenied testimony of Harold Snow, relative to the discussion concern-
ing elections, is convincing in demonstrating that Respondent was not insisting on a
30-day posting period as a prerequisite for an election. It is found that Farrington and
Pomerinke were not correct in their recollection that Respondent insisted on a 30-day
posting period, and, consequently, it is unnecessary to consider what significance this
would have in connection with Respondent's alleged failure to bargain in good faith It is
found that the 30-day posting period was mentioned by Respondent initially but was not
made a condition of its agreeing to an election
SNOW & SONS 719
issue a complaint against Respondent, and indicated that the strikers were entitled
to reinstatement along with the hope that they would be provided with immediate
employment.
On August 17, 1960, Respondent, through its attorneys, replied to Farrington, indi-
cating that Respondent was prepared to bargain in good faith with the Union after
a National Labor Relations Board election and that the employees engaged in the
asparagus operation at the time of the strike would be given employment the fol-
lowing year. In addition, Farrington was advised that the strikers who had previously
had experience in the corn operation would be employed immediately. Offers of
employment were sent to two of the employees who had been previously employed
in the corn packing operation. These offers of employment were not accepted.
These two employees on the morning of August 15, 1960, in company with Business
Representative Pomerinke and several others of the employees who had left their
work during the asparagus pack, left mimeographed slips at Respondent's premises,
indicating that they were terminating their strike and applying for immediate rein-
statement. These employees were advised by letter that they would be employed the
following year during the asparagus pack, but, due to their lack of experience in the
corn pack, they would not be employed during the current season.
C. The issues
1. Was the majority status of the Union established?
2. Did Respondent in good faith doubt the majority of the Union and insist on a
National Labor Relations Board election?
3. Are the striking employees entitled to reinstatement?
1. The majority status of the Union
The answer of Respondent denies that the Union represented a majority of its
employees . The record contains evidence that on June 6, 1960 , 12 employees at the
home of Business Representative Pomerinke signed authorization cards and the fol-
lowing morning an additional 19 cards were signed by employees as they were going
to work. There were 52 employees on the active payroll as of June 7, 1960. The 31
authorization cards constitute an indication of a majority . However there is evidence
that casts doubt on this indication . Kathleen Petersen , a witness called by the
General Counsel , testified as follows with respect to the circumstances of her signing
the union card on the morning of June 7, 1960:
Q. (By Mr. HALVERSON.) And iI ask you, Kathleen, if you will simply tell
the Court here the circumstances under which the card was signed, when and
where and what was said , not your subjective state of mind , but actually what
happened . Do I make myself clear on that?
A. Yes. All right. First, two boys came to my car and asked me if I was
going to sign one. They had been to the house before , the last evening. I told
them that I didn 't understand it and I'd rather not, and then they brought one
of the union men over to explain it to me and he told me that it meant
that I was signing the card to show whether or not the union would have a
backing if they held an election or when they held the election. And he also
told me that we would get a raise of so much and that we would get better work-
ing conditions and things like that.
Q. Was anything said to you about the fact that you would have the right
to vote in the election and you could make up your mind at that time?
A. Yes, and I was told more than once I would have a right to make up
my own mind which way to vote at the election and each time I was told that
someone was telling me that I should vote for the union and then they 'd say, "It's
all right for you to make up your own mind." But if I asked any questions
about it they 'd get mad and tell me why I should vote for the union when they
had an election.
Ruth Clift, a witness for Respondent , gave the following testimony in connection
with her signing an authorization card:
Q. (By Mr. HALVERSON.) Will you tell the Court not what you thought but
what you said and what was done at this particular time when you were pre-
sented this card for signature?
A. It was about 20 minutes to 8 when I got to the parking lot and Tom Maskell
came over to the car and handed me a card and said, "Sign it." I read the card
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and it said it was for membership in the union and I didn't want to join it but
Mr. Pomerinke came over to the car and said it was just more or less of a formal-
ity and we were to have an election to find out whether we wanted the union to
come into the shed.
Q. Was there some statement made that this was necessary in order that
there be an election held at Snow and Sons?
A. Yes.
Q. Who made that statement to you, do you recall?
A. Well, I am not sure exactly which one of the gentlemen it was, but it was
one of the union men, and they didn't stay at my car but just a few minutes
because other cars were coming into the parking lot, and I and one of the other
girls was with me, and they talked about it and it was almost time to go into
work, and they wanted to rush it. What I mean is, they wanted us to sign in a
hurry because we had to go in and go to work, and I signed my name and address
on the card and I didn't put anything else down, and gave them the card and
went on in to work in the morning.
The undenied and credited testimony of both these witnesses establish that at least
two employees were induced to sign cards to aid the Union in securing an election,
and were not authorizing the Union as their bargaining agent. The cases cited by
the General Counsel in support of the proposition that an authorization card cannot
be repudiated are distinguishable,3 as they present a situation where the employer
had been engaged in extensive unfair labor practices with a potential of pressure on
the employees to repudiate their authorizations and under all the circumstances
present in those cases sound reasons were indicated to apply a rule that would pre-
vent an employer-from benefiting by the possibly induced defection of an employee
in denying his union authorization. I cannot agree that any circumstances here
present dictate that the authorization cards of Kathleen Petersen and Ruth Clift
should be included in determining the union majority. The absence of even a scintilla
of evidence that Respondent was attempting to subvert union organization makes it
unnecessary to accept the authorization cards as proof of a majority of employees
who did not intend by signing a card to authorize the Union as its bargaining agent.
The testimony of these two witnesses who were included in the 19 who signed
cards on the morning of June 7, 1960, induces in this record a serious doubt as
to the circumstances as to the execution of the balance of the cards. It is not
merely a question of not counting the cards of these two employees in determining
whether the Union had a majority status, but the question remains as to how
many of the other employees who did not testify but who signed cards at the same
time were induced to sign the cards in order to assist the Union in obtaining an
election, and were not signing the cards as an authorization that the Union could
use in establishing its majority. Because the process of obtaining the signatures
is tainted with doubt which the General Counsel has not dissipated, I find that on
this record the Union has not been established as representing a majority of Re-
spondent's employees by an adequate measure of proof.
2. Was Respondent acting in good faith in insisting on National
Labor Relations Board election?
The above finding alone supports a recommendation of dismissal of the entire
complaint. Assuming arguendo, however, that the General Counsel has established
a majority, the question of good faith in insisting on a Board election is presented.
It is correctly conceded by the General Counsel that Respondent was not moti-
vated in seeking a National Labor Relations Board election for the purpose of
gaining time' to undermine the Union. As far as the record goes Respondent did
not seek a delay even for the purpose of exercising its right to express to its em-
ployees its own opinion, whatever it may have been, with respect to the advantages
or disadvantages of union organization. To the contrary, it is found that the
record establishes only that Respondent was interested in having its employees
provided with an opportunity to participate in a properly supervised secret election
to determine whether or not they sought representation by the Union.
Harold Snow's uncontradicted and credited testimony to the effect Respondent
had to do, something by noon on June 7 and the subsequent expression that Re-
spondent thought they felt trapped when advised by Farrington that the card check
3 Dan River Mills, Incorporated , Alabama Division , 121 NLRB 645 ; Pinkerton Folding
Boa Company, 121 NLRB 1308.
SNOW & SONS 721
was binding on them, persuades the Trial Examiner that the Respondent was not
withdrawing from an agreement for establishing a majority representative. The
General Counsel stated on the record that he did not contend that such an agree-
ment was made. In summary, I am persuaded that the signature check had a dif-
ferent significance to the union representatives than it did to the Respondent, and
that Respondent consented to it because it was faced with an immediate deadline
with a probability of a strike or a picket line and also an understandable curiosity
as to the extent of union organization , since June 7 was the first occasion that they
had knowledge of such activity.
Absent some evidence in the record that the employer's insistence upon an elec-
tion was for the purpose of gaining time to dissipate the majority of the Union, it
would appear to be the general rule that the employer has a right to insist upon
secret expression of its employees in connection with determining their bargaining
representative .4
The precipitous nature of the organizational campaign followed by a demand
that they should agree to a contract by noon on June 7, or at the most within 72
hours, would reasonably be a time sequence that would cause Respondent doubt
as to whether claims of the Union represented the free choice of the employees.
It is recognized that a seasonal industry here involved provided the union with
special organizational problems. However, the Union's rejection of the Respond-
ent's suggestion that an attempt be made to have a National Labor Relations Board
election immediately was refused. Also, the Respondent during its negotiations
with the Union pointed out that the packing season lasted into August, and there
would be an opportunity during the year of 1960 to have the employees vote.
The impression from the totality of the conduct of the union representatives sug-
gests that after the cards were signed on June 6, an impartial secret election of
the employees was unacceptable to the Union.
The rule enunciated by the Board in a case cited by the General Counsel seems
appropriate in making a resolution here.5
The aim of Respondent to have a secret election is compatible with the purposes
of the Act and under all of the circumstances present in this case represents a pro-
cedure that the employees of the Respondent were entitled to utilize.
The question of the right to reinstatement of various individuals named in the
complaint and two additional ones that the General Counsel contended should
be included in the order of reinstatement need not be reached, as based on the
foregoing it is found that the Respondent has not engaged in unfair labor practices
and hence there is no question of an unfair labor practice strike carrying with it
a right to reinstatement.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent has not violated Section 8(a) (1), (3), or (5) of the Act.
4 Joy Silk Mills, Inc v. N.L R B , 185 F. 2d 732 (CAD C.).
5 Emma Gilbert, et al, individually and as Co-Partners d/b/a A L. Gilbert Company,
110 NLRB' 2067, 2069
But whether, in any given case, the employer is legitimately or illegitimately moti-
vated in asking for an election, whether he sincerely or insincerely expresses doubt as
to majority, depends in the final analysis , upon all the facts and circumstances of
that case There is no rule which will save the Board from the necessity of a dis-
criminating analysis and appraisal of all the relevant evidence before making a
good- or bad-faith determination It is all the circumstances of the particular case,
including the employer's background, the "character or extent" of the unfair labor
practices, and the sequence of events which must be considered before a good- or
bad-faith determination can be made
At the same page the Board states:
. . the Board will not permit a party to insist upon the use of its processes as a
device for undermining the declared purposes of the Act
It is clear that Respondent was not attempting to utilize an election as a device to defeat
its employees' rights under the Act.
630849-62-vol. 131 -47