Strydel, Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1966

156 N.L.R.B. 1185 (N.L.R.B. 1966)

STRYDEL INCORPORATED 1185
apparent justification on these two occasions just prior to his discharge.34 Notwith-
standing the fact that it would appear that Dunn not infrequently used foul lan-
guage in his speech,35 the credible evidence supports the Respondent's assertion that
employees generally, and Dunn, specifically, while perhaps using such language,
did not direct vulgar epithets at supervisors or company officials. Thus, contrary
to the discredited testimony of Dunn to the effect that he called Slazek a vulgar
term 2 to 20 times a day over an extended period of time, and contrary to certain
testimony of Lewandowski, whose veracity also leaves much to be desired, Lee
testified that he never heard any employee, including Dunn (except on the March 10
occasion), call Slazek or any supervisor a vulgar, name to his face. Credited
employee Laska's testimony, corroborating that of Lee, tends to substantiate Slazek's
testimonial assertion that neither Dunn nor any other employee had before used
vulgar language in addressing him.
More important to this matter, however, is the fact that Emil Wokeck, who, as
above' related, alone made the decision to terminate Dunn, credibly testified that
until Slazek's report to him on the afternoon on March 10 concerning Dunn's con-
duct, he had never been apprised of vulgar language being directed to his super-
visors. Based in great part on my appraisal of Emil Wokeck as an individual,
including the fact that Emil Wokeck impressed me as a person who would be most
affronted by the use of such obscenity as was used by Dunn to his Shop Foreman
Slazek, I am persuaded that Emil Wokeck, on learning of these two occurrences
involving Dunn's language, decided, as he testified, to terminate Dunn immediately
for this reason.
Accordingly, I find and conclude that the General Counsel has failed to prove by
a preponderance of the credible evidence the complaint allegation that the discharge
of William Dunn on March 10, 1964, was based on his union activity of any unlaw-
ful consideration,36 and therefore, further find that the Respondent has not engaged
in conduct violative of Section 8(a) (3) of the Act.
Upon the basis of the foregoing findings of fact and the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Bangor Plastics, Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety , and that
the settlement agreement be reinstated.
a* The distinction being drawn is that between general use of vulgarity and obscenity in
one's every day speech and calling a foreman, to his face, a vulgar and obscene name.
35 Former employee Phillip Lee, whom I have credited, referred to Dunn as "one of the
most vulgar men I've ever heard."
18 Furthermore, were I, contrary to the fact, permitted to consider the presettlement
evidence relating to union activity generally, and to Dunn, specifically, some 4 months
prior to the discharge, under all of the circumstances, including the lack of evidence of
union animus on the part of the Respondent during this intervening period, my finding
with respect to Dunn's termination would not be altered
Strydel Incorporated and International Union of District 50,
United Mine Workers of America.' Case No. 8-CA-3774. Feb-
ruary 1, 1966
DECISION AND ORDER
On November 9, 1965, Trial Examiner. Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that the Re-
1 Referred to herein as District 50.
156 NLRB No. 114.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent 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 Exam-
iner'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 [Members Fanning, Brown, and Zagoria].
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, brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
1. We agree with, and adopt, the Trial Examiner's findings that
Respondent violated Section 8(a) (1) of the Act through statements
of McClue, a low-level supervisor, implying more onerous working
conditions and layoffs in the event of union organization?
2. The Trial Examiner further found that Respondent violated Sec-
tion 8(a) (5) and (1) of the Act by refusing to recognize and bargain
with District 50, the majority representative of Respondent's employ-
ees in the appropriate unit. We do not agree.
The facts bearing upon the alleged unlawful refusal to bargain are
undisputed. During 1964, prior to District 50's organizational
campaign, the Board conducted a representation election, a further
election, and a runoff election among Respondent's production and
maintenance employees on a petition filed by District Lodge No. 129,
International Association of Machinists, AFL-CIO. The Interna-
tional Brotherhood of Teamsters, Chauffeurs, ti\rarehousemen R Help-
ers of Anieriea, Local No. 20, participated in the last two elections. In
the'rnnoff election, conducted on. September 15, 1964, each union re-
ceived 50 percent of the ballots cast and hence neither secured the neces-
sary majority. Thereafter, in early January 1965,3 District 50 began
its efforts to organize Respondent's production and maintenance work-
ers. On January 25, District 50, having obtained signed authorization
cards from a majority of said employees, wrote Respondent advising of
its status as majority representative, demanded recognition and bar-
gaining, and indicated its willingness to submit the authorization cards
to "any unbiased check." On February 3, Respondent's attorney in-
21n the absence of exceptions thereto, we adopt pro forma the Trial Examiner's dis-
missal of 8(a) (1) allegations based upon Supervisor Seeley's interrogation of an em-
ployee, and Supervisor McClue's reference to a union meeting in a conversation with
Employee Wheeler.
8 Unless otherwise indicated, all dates refer to 1965
STRYDEL INCORPORATED 1187
formed the Union that "under the circumstances," i.e., because, inter
alia, an election was held within the past year, it was felt that the
Respondent had no obligation to bargain. Thereafter, on or about
February 5, in a telephone conversation with District 50's Regional
Director, Respondent's attorney stated that he did not think that
Respondent was obligated to recognize that, or any other, union in
view of the Board election held within the last 12 months, a clear
reference to Section 9(c) (3) of the Act4 In ensuing correspondence
District 50 repeated its demands, but Respondent declined recognition
on each occasion. Formal contacts between the parties apparently cul-
minated on March 5, when Respondent wrote District 50 again stating
that the circumstances precluded any obligation on its part to recog-
nize District 50 as bargaining representative for the employees sought.
The Trial Examiner concluded from the foregoing that the Gen-
eral Counsel had established a prima facie violation of Section 8(a)
(5). In his view, Respondent's denial of recognition, without ques-
tioning, District 50's claimed possession of authorization cards from a
majority of unit employees, and its nonacceptance of the Union's offer
to submit said cards to an unbiased check, substantiated the allegation
that recognition was denied in bad faith.
However, pursuant to settled Board policy, the General Counsel,
having alleged a violation of Section 8(a) (5) on the basis of a card
showing, has the burden of proving not only that valid authorizations
have been executed by a majority, but also that the employer has
refused recognition in bad faith.5 We find no basis in the record for
imputing to Respondent a rejection of the collective-bargaining prin-
ciple, or an effort to undermine the Union by gaining time in which to
dissipate the, Union's claimed majority.6 Nor are we willing to infer,
as did the Trial Examiner, that Respondent was guilty of bad faith
merely because it denied recognition while rejecting the Union's pro-
posal for submission of the cards to impartial determination.7 This
does not, standing alone, provide an independent basis for concluding
that the instant denial of recognition was unlawful. As no other
affirmative evidence has been adduced upon which a finding of bad
faith may be predicated, we find, contrary to the Trial Examiner, that
the General Counsel has, thus, failed to establish a prima facie case.
' In material part, Section 9 (c) (3) of the Act provides,
No election shall be directed in any bargaining unit or any subdivision within
which, in the preceding twelve -month period , a valid election shall have been
held. . . .
5 John P. Serpa , Inc., 155 NLRB 99
6 No exception was taken to the Trial Examiner's finding that the independent 8(a) (1)
violations committed by Supervisor McClue were not of such serious nature as to warrant
a conclusion that said conduct had the objective of dissipating the Union's majority.
Hammond & Irving , Incorporated, 154 NLRB 1071; cf. Joy Silk Mills , Inc, 85 NLRB
1263, enfd. 185 F. 2d 732 (C A.D.C.)
' Cf Fred Snow , Harold Snow and Toni Snow, d / b/a Snow & Sons , 134 NLRB 709
217-919-66-vol. 15 6-7 6
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, Respondent's affirmative defenses need not be considered,
and we therefore do not pass upon the merits of its contention relating
to Section 9(c) (3) of the Act or the Trial Examiner's reasoning and
conclusions in connection therewith. For the above reasons, we shall
dismiss the 8 (a) (5) allegation of the complaint.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications: (1) delete paragraphs 1(a) and
2(a) and renumber the paragraphs consecutively and (2) delete the
first and last indented paragraphs from the notice.]
[The Board dismissed the complaint insofar as it alleges violations
of the Act not found herein.]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a complaint issued by the General Counsel 1 that Respondent committed
unfair labor practices in violation of Section 8(a) (1) and ( 5) of the Act , a hearing
was held before Trial Examiner Benjamin B . Lipton in Bryan, Ohio, on June 30
and July 1, 1965 . All parties were represented at the hearing 2 and were afforded
full opportunity to present relevant evidence and argue orally on the record. Com-
prehensive briefs filed by General Counsel and Respondent have been accorded due
consideration.
Upon the entire record in the case , and from my observation of the demeanor of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent , an Ohio corporation with its principal place of business in Stryker,
Ohio , is engaged in the manufacture and sale of plastic toys . Annually , it receives
purchased goods directly in interstate commerce valued in excess of $50,000, and
ships finished products to the Ohio Art Company in Bryan , Ohio , which company
annually ships goods directly in interstate commerce valued in excess of $50,000.
Respondent admits, and I find , that it is engaged in commerce within the meaning
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine Workers of America,3 herein
called the Union, is a labor organization within the meaning of the Act.
'The charge by the Union was filed on February 12, 1965, and the complaint thereon
was issued on May 13, 1965.
2 At the outset of the hearing, a written motion to intervene by International Brother-
hood of Teamsters Chauffeurs, Warehousemen & Helpers of America, Local No. 20, was
argued on the record, supported by Respondent and opposed by General Counsel. The
basis for the motion was the claim stated by the Teamsters that it represented a majority
of employees in the unit described in the complaint during all times material and that
it sought to protect its interest as "authorized collective bargaining representative."
The Teamsters was one of the participating unions in a recent Board election in which
no union was certified . It asserted that it held authorization cards from the employees,
some antedating and some postdating the Board election. The motion was denied es-
sentially for the reasons-that the Teamsters was not a proper party in the case, which
involved alleged violations of the Act and was not a representation proceeding ; that
if the General Counsel failed to carry his burden of proof, the rights of Respondent and
others Indirectly concerned would be protected ; that Respondent could introduce all
relevant evidence in its own defense ; and the Teamsters independently had full recourse
to the processes of the Board . See The East Ohio Gas Company, 140 NLRB 1269, 1272
3 Name of Union as amended -at the hearing.
STRYDEL INCORPORATED 1189
III. THE UNFAIR LABOR PRACTICES
A. Essential issues
1. Whether Respondent violated Section 8(a)(1) by coercively interrogating and
threatening its employees with respect to their union activities?
2. Whether Respondent violated Section 8(a)(3) by refusing to recognize the
Union upon its request within 1 year after the holding of a valid Board election, not
participated in by the Union, in which no certification resulted?
(a) Does the evidence establish on the basis of signed authorization cards
obtained after the election that the Union represented a majority of the employees
in an appropriate unit at the times it demanded recognition by Respondent.
(b) By virtue of Section 9(c)(3), was Respondent entitled as a matter of law to
refuse to bargain for a year after the election with the Union, or any labor orga-
nization, even though Respondent did not have a good-faith doubt that the claiming
Union actually represented a majority of the unit employees?
(c) On the Joy Silk theory,4 did Respondent commit unfair labor practices which
demonstrated that it was not motivated by a good-faith doubt of the Union's major-
ity status during the times material?
(d) Absent a Joy Silk basis, does the evidence support Respondent's alternative
contention that it harbored a good-faith doubt of the Union's majority?
B. Background and setting
On January 23, 1964, a consent election was conducted upon a petition 5 of Dis-
trict Lodge No. 129 of the International Association of Machinists, AFL-CIO, with
an intervenor, Strydel Local Independent Union, also appearing on the ballot. Of
60 votes cast, 29 were for the Machinists, 23 for the Independent, and 8 for neither.
Pursuant to the Board's Rules and Regulations, Series 8, as amended, a runoff elec-
tion was indicated as necessary.6 On August 21, 1964, a further election was held
in the same case with the choice on the ballot consisting of the Machinists; the
Teamsters; or neither.? Of 42 ballots, 16 were cast for the Machinists, 17 for the
Teamsters, and 9 against both unions. Again, a runoff was indicated. On Septem-
ber 15, 1964, the runoff was conducted-with the Machinists and the Teamsters each
receiving 21 votes of the 42 ballots cast. Accordingly, a valid election was com-
pleted upon the Machinists' petition, with no union receiving the necessary majority.
Early in January 1965,8 the Union herein undertook a new organizational cam-
paign. Meetings were held; and authorization cards designating the Union, dis-
tributed through various media, were signed beginning on January 12, as more spe-
cifically described, infra. Also, in the ensuing period, employees wore buttons at
work, indicating "I'M A UNION MEMBER-DISTRICT 50, U.M.W.A.-ARE
YOU?"
C. Interference and coercion
Sometime in January, Melvin McClue, a second shift supervisor, had a conversa-
tion with Joe Tijerina at the plant. McClue said-"if the union ever got in it was
going to give us more work, make the [automatic injection molding] machines a
little faster .... That it is going to be hard on everybody." 9
4Joy Silk Mitts, Inc., 85 NLRB 1263, enfd . 185 F. 2d 732 (C.A.D C.), cert. denied 341
U.S. 914.
5 Case No. 8-RC-5401.
8 In the interim, following a complaint issued upon charges filed by the Machinists, a
settlement stipulation was executed, approved in a Board Decision and Order, and a con-
sent decree was entered by the Court of Appeals for the Sixth Circuit-enforcing an
order that Respondent cease and desist from threatening its employees with economic
reprisals because of their union activities, dominating and interfering with the admin-
istration of the "Employees' Committee" ; recognizing the "Committee" as the employees
representative ; and in any other manner violating the rights of employees guaranteed
in section 7.
7 The bases for the elimination of the Independent ; the intervention of the Teamsters,
and the holding of a new, rather than a runoff, election, were not clarified in this record.
B All further dates are in 1965, unless otherwise specified.
g Based on credible testimony of Tijerina. McClue, denying any threats, testified that
all he could recall were a few brief words in which he was asked about the Union and
he replied that there were advantages and disadvantages.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About the end of January, during a "break," McClue was involved in a discussion
near the coffee machine with Connie Miller, Pat Van Auken, and Mary Wheeler. In
the course of the conversation, McClue went to his office and brought out his copy
of a pamphlet entitled "SOME DOs AND DON'Ts FOR SUPERVISORS," which
had been distributed to all supervisors. He read from the pamphlet, gave his expla-
nations, and handed the pamphlet to the girls to read. According to Miller and
Wheeler, McClue said in substance that the Company did not have to accept the
Union; it could lay off the girls that wanted the Union and bring in new help. This
testimony suggests the possibility that the girls misconstrued a statement, as con-
tained in the "DOs and DON'Ts" pamphlet, relating to Respondent's rights to replace
economic strikers. However, Miller testified that it was in one of his other conver-
sations with the girls that McClue discussed the subject of the strike replacements,
and he did not then have the "DOs and DON'Ts" pamphlet. McClue himself stated
that he had read to the girls only one section of the pamphlet to the effect that
employees may be told that signing authorization cards did not mean that they must
vote for the union in an election. He testified that Miller had complained that
"somebody" passing the authorization cards said the employees would be fined if
they did not sign; that he had the same complaint from 18 or 19 of the 22 employees
on the second shift; and that he had himself observed about the same number of
employees, 80 percent, wearing union buttons of District 50.10 Miller and Wheeler
are credited as against McClue, whose memory appeared weak and who was gener-
ally unconvincing as a witness. Accordingly, it is found that McClue threatened
employees with layoffs and with imposition of more onerous working conditions to
discourage their union adherence, and that Respondent thereby violated Section
8(a)(1) of the Act.
In the context of the open and extensive union activity of the employees during
this period, and the informality of the alleged interrogation by a low-ranking super-
visor, I find no violation on the testimony of Leona Staats, if credited, that her fore-
man, Leslie "Sam" Seeley had questioned her while at work-whether she had gone
to a union meeting, to which she answered negatively, and whether she had signed
a union card, which she admitted.11 The same finding is made in connection with
Mary Wheeler's testimony that McClue "said something about there was a union
meeting over at Beck's Saturday."
D. The refusal to bargain
1. Union-recognition demands and Company responses
By letter dated January 25, the Union initially notified Respondent that it was the
authorized representative of the majority of the employees in the unit and requested
a bargaining meeting to negotiate a contract. It stated explicitly: "We stand ready
to submit to any unbiased check of the authorizations to our Union by your employ-
ees referred to above."
On February 3, Respondent's attorney, John B. Dwyer, sent a reply to the Union,
in part as follows:
We have advised Strydel, Inc., that under the present circumstances, they
have no obligation at this time to bargain with District 50, United Mine Work-
ers of America.
Among other things, as you probably know, there is a Court Order, now
pending, relating to labor matters and an election has been held within the
last year.
On February 4 or 5, the Union's regional director, Thomas V. Badoud, telephoned
Dwyer essentially repeating the previous demand. Dwyer said he did not think
Respondent was obligated to recognize the Union, or any union, in view of the
Board election held within the last 12 months. Badoud said there were other proce-
dures available to determine the majority question.
About February 11, Badoud again telephoned Dwyer, and on both sides the same
positions were reiterated. Badoud added that he was sure Respondent was aware
that the Union represented a majority of the employees as they were wearing the
Union's buttons throughout the plant. Dwyer again stated it was Respondent's
position that it need not recognize the Union in view of the prior Board election.
10 He also said he had seen only one employee with a Teamsters button, around June 15
uE.g., Bonnie Bourne, an individual, d/b/a Bourne Co. v. N.L.R.B., 332 F 2d 47
(C.A. 2).
STRYDEL INCORPORATED 1191
Badoud said that it was then necessary that the Union file a refusal-to-bargain
charge. As noted, the charge was filed on February 12.
On February 12, Respondent's general manager, Robert L. Lochner, wrote
Badoud confirming previous communications and indicating the opinion that "under
the existing circumstances" Respondent had no duty to recognize District 50 as bar-
gaining representative and would not meet for the purposes outlined in the Union's
letter of January 25.
On March 1, the Union again wrote Respondent using the identical language of
the original demand letter of January 25. On March 5, Lochner answered:
It is still our opinion, under the circumstances, that we are under no duty to
recognize District 50 as bargaining representative of our production and main-
tenance employees. The matter is also before the National Labor Relations
Board on your charge of an unfair labor practice.
2. The unit
Respondent disputes the complaint's allegation of a production and maintenance
unit, but admits that in a "proper" (i.e., representation), case the Board could find
such a unit appropriate under Section 9(b). The 1964 consent elections, supra,
were conducted among employees in a production and maintenance unit. Respond-
ent introduced no evidence to support a different unit from that alleged, which on
its face is clearly appropriate. It is accordingly found that:
All production and maintenance employees at Respondent's plant in Stryker, Ohio,
excluding all office clerical employees, professional employees, guards, and super-
visors as defined in the Act constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
3. Evidence of the Union's majority status
As of January 25,12 when the Union made its original bargaining demand, there
were 81 employees in the appropriate unit.13 Of these, 42 employees individually
testified authenticating their own signatures upon an authorization card 14 which
contains particular employment data, and pertinently reads:
DISTRICT 50
UNITED MINE WORKERS OF AMERICA
I hereby request and accept membership in the above-named union and of my
own free will authorize it to act as my agent and representative for collective
bargaining purposes.
Additionally, the authorization card of Nancy Grimes was admitted upon authenti-
cation through other witnesses 15
As of March 1, there were, as stipulated, 79 employees in the unit; and the Union
had authorization cards for 59 of these employees,16 consisting of 37 of the earlier
group of 43 employees,17 and 22 additional cards.18 Of the latter, 21 employees
testified to the authenticity of each of their cards; and one additional card was
validated by testimony of another employee.19
Of the 59 employees who signed cards as of March, 1,20 the following additional
data is revealed in the record: 43 testified they wore the Union's button on the job
19 It was not shown when Respondent received the January 25 letter.
18 Based upon a payroll list and stipulations. Blanche Stoner's name was mistakenly
omitted from the list. She testified she was originally employed,from March 16 to some-
time in May 1964 was rehired in August and worked until she quit on February 22, 1965
14 The 42 cards were received without objection from Respondent.
15 Pace gave Grimes the card and asked her to read and sign it if she saw fit ; Brodbeck
saw Grimes sign, knew and identified the signature ; and Grimes later gave the signed
card to Pace, who turned it over to the Union.
10 The unit complement fluctuated with the turnover of employees. Union Agent Martin
testified that on January 25 the Union had 45 cards; on January 26, 64 cards; and on
March 1, 78 cards.
17 Strobl, Tijerina, Dull, Mock, Yoder, and Stoner were no longer employed.
1s Admitted without Respondent's objection.
19 McCauley testified that she knew and identified Leona Crisp Gamble's signature on
a card, dated February 1, and that Gamble attended meetings of the Union after the date
shown on the card
20 The al tached Appendix B lists the 59 names and the dates they signed cards
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for varying periods of time after they signed 21 the cards; 22 32 of these employees
were hired in or after August 1964, clearly indicating their ineligibility to vote in the
prior elections.23 Although virtually all employee witnesses were questioned as to
whether any financial condition or consequence was attached to their signing a
card, only one employee (Rose) testified that she was told by the employee (Wagner)
who gave her the card that if she signed she would not have to pay an initiation fee 24
Accordingly, it is concluded on the foregoing evidence that the Union, when it
made its bargaining requests, and at all times material, represented a clear majority
of the employees in the appropriate unit.
4. Section 9(c) (3) defense
Respondent contends that it had an. absolute right, regardless of any good-faith
doubt of majority representation, to refuse to recognize the Union, or any labor
organization, within the year succeeding the previous election during which period
the Board is precluded by Section 9(c)(3) from holding any further election. This
section of the statute, enacted as an amendment in 1947, provides •
No election shall be directed in any bargaining unit or any subdivision within
which, in the preceding twelve-month period, a valid election shall have been
held....
Plainly, Respondent's position finds no basis for support in the actual language of
Section 9(c)(3). As it reads, this section pertains solely to the holding of a repre-
sentation election by the Board and reflects no alteration in other provisions of the
Act which impose upon an employer the duty to. recognize and bargain with the
majority representative of his employees25 Nor does the legislative history of this
amendment disclose any such intent of Congress as contended. Rather it reveals that
the purpose of Section 9(c) (3) was to "impress upon employees the solemnity of their
choice, when the Government goes to the expense of conducting a secret ballot ...... 26
In Section 1 of the Act, it is "declared to be the policy of the United States to
eliminate the causes of certain obstructions to the free flow of commerce . by
encouraging the practice and procedure of collective bargaining ...." Indeed, the
concept of promoting industrial peace through collective bargaining provides the
underlying premise of the Act.27
21 Not all of the employee witnesses were asked or testified concerning the wearing of
a button for the Union.
as Prior to the last election on September 15, 1964, one employee had signed cards, at
different times, for Teamsters, Machinists, and Independent ; three had signed cards for
Teamsters and Machinists ; one had signed for Teamsters and Independent ; nine had
signed just for Teamsters ; and four had signed just for Machinists. After having signed
for the Union (District 50)-three had signed a card for Teamsters. Only one (Patter-
son) testified she wore the buttons of Teamsters and District 50 at the same time-but
just for 2 weeks in June 1965 and then she took them off. Of all of the foregoing em-
ployees, 10 testified they wore the buttons of such other unions at times on the job
a' Pursuant to a consent-election agreement signed on July 31, 1964, those eligible to
vote in the August 21 and September 15, 1964, elections had to have been employed dur-
ing the payroll period ending July 25, 1964.
u Rose's card , nor any other card , is thereby rendered invalid. Edro Corporation and
Anasco Gloves, Inc., 147 NLRB 1167, enfd. 345 F 2d 264 (C.A. 2) ; Von Der Ahe Van
Lines, Inc., 155 NLRB 126. International Representative Martin testified that at a
union meeting on January 12, he informed the employees that he was requesting from
the International Union the exoneration of initiation fees during the organizational
campaign, and that employees who joined after a contract was signed would have to pay
initiation fees and dues.
'S Section 8(a) (5) makes it an unfair labor practice for an employer "to refuse to
bargain collectively with the representatives of his employees; subject to the provisions
of section 9(a)." Section 9(a) provides : "Representatives designated or selected for
the purposes of collective bargaining by the majority of the employees in a unit 'appropriate
for such purposes, shall be the exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect to rates of pay, wages, hours
of employment, or other conditions of employment:. . . [Emphasis supplied.]
20 S. Rept. 105 on S. 1126, 80th Cong, 1st seas., p. 12 (1947).
27 N.L.R.B. v. Truck Drivers Local Union No. 449, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, AFL (Buffalo Linen Supply
Co.), 353 U.S. 87, 95-96; Ray Brooks v. N.L.R B., 348 US. 96, 103.
STRYDEL INCORPORATED 1193
Even beyond the statement of national labor policy in the Act, the Supreme Court
has recognized that the right to select a collective-bargaining representative is "funda-
mental" and , has implied that such a right carries constitutional sanction. In the
language of the Court:
. the right to organize and to select representatives for lawful purposes of col-
lective bargaining which this Court has characterized as a "fundamental right"
and which, as the Court pointed out, was recognized as such in its decisions long
before it was given protection by the Labor Relations Act 2s
In one of its basic decisions on the constitutionality of the Act, the Court stated. 29
That is a fundamental right. Employees have as clear a right to organize and
select their representatives for lawful purposes as the respondent has to organize
its business and select its own officers and agents. . . . [T]he prohibition of
Congress of interference with the selection of representatives for the purpose of
negotiation and conference between employers and employees, "instead of being
an invasion of the constitutional right of either was based on the recognition of
the rights of both." Texas & N.O.R. Co. v. Railway & S.S. Clerks [281 U.S.
548].
Consequently, to derive a construction from Section 9(c)(3) in effect to suspend
for 1 year the statute's collective- bargaining obligations would require the most
explicit language of Congress ( assuming it had such constitutional power) that such
was its precise intention.
Respondent relies upon the reasoning in a recent Trial Examiner's Decision.30 In
dismissing the 8(a)(5) complaint, even though he found that the respondent did not
in good faith doubt the union's majority representation when it rejected the unions
recognition demand,31 the Trial Examiner held that Section 9(c)(3) "gives an
employer the right for a period of 1 year following a valid election to refuse to recog-
nize any labor organization ." In support of this holding, the considerations there
described are not, in my opinion, authoritative or analytically sound. As adopted by
the Respondent here, these were the principal points made:
(a) It would circumvent the statutory prohibition of Section 9(c)(3) to resolve
the question of representation in a proceeding under Section 8(a) (5) at a•time when
no election can be considered by the Board. As already shown, Section 9(c)(3) has
a limited application and is distinct from other fundamental provisions of the Act.32
The Supreme Court has made it clear, for purposes of Section 8(a)(5) and 9(a), that
a bargaining representative need not be certified by the Board or even be eligible for
such certification,33 and that Section 9(a)(3) does not, during the 1-year election
moratorium, prevent the union from establishing its majority status and effectively
invoking its exclusive bargaining agency without having to proceed through a Board
election 34
(b) In the circumstances, to proceed under Section 8(a) (5) would achieve a result
not anticipated by Congress when it amended the Act in 1947 to add Section 9(c) (3).
The basis for this statement is an assertion that for approximtaely 7 years prior to the
enactment of 9(c)(3), an employer who, without engaging in coercive conduct con-
demned by Joy Silk, supra, disputed a union 's representation claim `ordinarily was
-International Union, U.A.W.A., A.F. of L., Local 232, et at. v. Wisconsin Employment
Relation Board (Briggs & Stratton Corp ), 336 U.S. 245, 259.
21N.L.R .B. v. Jones & Laughlin Steel Corporation , 301 U.S. 1, 33
"The Dow Chemical Company, 152 .NLRB 1150 On the 9 ( c) (3) issue, the decision
is not binding upon me, because later developments in the case made it unnecessary for
the Board to consider or pass upon the question. I respectively disagree with the Trial
Examiner, for the reasons set forth herein. My own conclusions are rather in accord
with those found in another Trial Examiner 's Decision, Consolidated Badger Cooperative,
Case No. 30-ACA-76, cited to me by the General Counsel. However, the Consolidated
case is similarly not a binding decision of the Board, as the respondent there complied
with the recommended order of the Trial Examiner.
31 This finding, in my opinion, effectively disposed of the entire Section 8(a) (5) issue
in Dow.
32 Ekco Products Company ( Sta-Brxte Division ), 117 NLRB 137, 143-144; Majestic Lamp
Mfg. Corp., 143 NLRB 180, 186. See also N.L.R B. v. Bill Daniels, Inc., 202 F. 2d 579
(C.A. 6).
13 United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S 62, 70-72
See also N.L.R.B. v. District 50, United Mine Workers of America, 355 U.S. 453, 458,
N.L.R.B. v. David Leach, at al, d/b/a Brookville Glove Company, 234 F. 2d 400 (C A. 3),
enfg. 114 NLRB 213.
34 As Interpreted by the Board in Rocky Mountain Phosphates, Inc., 138 NLRB 292, 295.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to have such dispute resolved by secret ballot election." A short answer is
that, even assuming such was the state of the Board decisions for 7 years before
1947,35 it would scarcely warrant the generalized construction that Congress thereby
intended to freeze these administrative decisions into Section 9(c)(3) of the Act.36
Moreover, my own research reveals no foundation for this sweeping statement that
such a 7-year pattern of decisions preceded the amended Act of 1947.3
(c) The "right" to refuse to recognize any labor organization within the year under
Section 9(c)(3), as expressed by the Trial Examiner in the Dow case, supra, is
heavily hedged with stated exceptions. Coercive conduct under Joy Silk is indicated
as one exception. Another is the "situation" in Rocky Mountain Phosphates, supra,
and as further discussed below. And the further reservation was made that
"undoubtedly" there are other situations which present exceptions. I can not conceive
how such a vaguely defined "right" can be said to stem directly from the statute.
Particularly concerning the "exception" ascribed to the Rocky Mountain Phosphates
case, it plainly appears more accurate to regard that case as the "rule." There, within
the certification year, the certified Independent was dissolved and the clear majority
of employees transferred their allegiance to Operating Engineers by means of signed
authorization cards and a membership vote of the Independent. Although the
Respondent was fully informed and aware of these events, it repeatedly refused the
requests of Operating Engineers for recognition within the year of the prior election.
No other labor organization was pressing a representation claim. The Board defini-
tively considered the impact of Section 9(c) (3) and nevertheless found the refusal-to-
bargain violation.38 The Board further indicated that, moreover, this was not a case
where the employer must determine at his peril where the duty to bargain lies, for
the facts clearly showed that the employer was aware that Operating Engineers had
assumed the status of bargaining representative. Significantly, the Board observed
that if the respondent were permitted lawfully to resist the Operating Engineers' bar-
gaining demands in the certification year despite its lack of good-faith doubt of
majority status, the employees would be penalized for exercising their guaranteed
organizational rights in Section 7 and the effect would be "to blunt the thrust of the
Act which is to foster collective bargaining and industrial peace." 39
In my opinion, the Rocky Mountain Phosphates case is dispositive authority on the
9(c)(3) issue.
33 The authority cited by the Trial Examiner in Dow is the 13th Annual Report of
the Board , p. 21, footnote 7. This reference , however, related merely to a statistical
showing that since 1939, in representation petitions filed with the Board , an election was
the method "almost invariably" utilized in contested cases , as distinguished from consent
cases , in which cross card checks were conducted by the Board as then permitted by
statute).
N.L.R.B. v. Seven -Up Bottling Company of Miami, Inc , 344 U.S. 344 , 349. Indeed,
the Congress was presumably conscious of the Board's decisional authority, exercised at
times, to change its decisional policy. International Union of Electrical , Radio and
Machine Workers, AFL-CIO v. N.L.R.B., 352 F. 2d 361 (C A.D C.).
37 For example, in Lawrence It. Hagy, et al ., d/b/a Hagy, Harrington & Marsh, 74
NLRB 1455 , 1470 ( 1947 ), the rule stated was that an employer may not as a matter
of law insist that the union prove its majority status by Board election , since the ques-
tion of majority may be litigated in a complaint case brought under Section 10 of the
Act. In Pacific Plastic & Mfg. Co, Inc., 68 NLRB 52 , 80 (1946 ), the 8 ( 5) violation was
found where the Respondent at no time demanded the union present proof of its majority
It was held that when an employer in good faith questions the union 's majority , it is the
duty of the union to offer, and of the employer to accept , some reasonable method for
ascertaining the union 's representation claim ; and the employer had the burden of prov-
ing it raised the majority question in good faith . In Rockwood Stove Works, 63 NLRB
1297, 1325 ( 1945 ) the Trial Examiner's '8(5) finding, adopted by the Board , carried the
language * "It is also clearly established in decisions of the Board and the Courts too
numerous to cite, that where a labor organization represents a majority of employ-
ees . , and advises the employer of that fact and makes a reasonable offer of proof of
the said majority , the employer , . . may not lawfully withhold recognition and refuse
to bargain on the grounds that the said labor organization has not been formally certified
by the Board."
ss Relying in part upon the Supreme Court opinion in Rocky Mountain Phosphates,
supra. The Board stated ( at 295 ) : "Manifestly , this Supreme Court precedent should set
at rest any notion that the 1-year election provision in Section 9(c) (3) withdraws exist-
ing rights of employees under Section 7 freely to reject or select a labor organization
during the certification year by means other than a Board election
ss 138 NLRB at 296.
STRYDEL INCORPORATED 1195
5. Good- or bad-faith doubt
Respondent contends alternatively that its refusal to bargain was based upon a
good-faith doubt that the Union represented a majority of the unit employees when
it made its recognition demands. If supported, such a good-faith doubt, as General
Counsel concedes, would constitute a complete defense on this issue. A factor, but
not decisive,40 is the recent failure of a majority of employees to select any one of the
participating unions (other than this Union) in the Board election 41
In his brief, the General Counsel relies in part upon the Joy Silk doctrine, supra,42
in asserting that Respondent's refusals to bargain were accompanied by acts of coer-
cion upon the employees designed to undermine the Union's majority status and
that its claim of good faith is therefore untenable. However, as the Board has held,
the commission of 8(a) (1) violations does not per se require the application of Joy
Silk, but in each case consideration will be given to all the surrounding circumstances
as well as direct evidence of motivation.43 Here, as shown, certain threats of layoff
and imposition of more onerous work conditions were implied in statements to
employees by McClue, a supervisor on the second shift. In the entire context of the
case, I do not consider McClue's conduct as sufficiently serious that it must neces-
sarily have the object of destroying the Union's majority representation. Nor is the
evidence such that the acts of this minor supervisor, although unlawful, and attribut-
able to Respondent as violations, can reasonably be regarded as having the approval
or reflecting the purposes of Respondent to resort to such measures in defeating the
Unions recognition demands. Consequently, I do not hold that, as such, these
8(a)(1) violations vitiated Respondent's claim of good-faith doubt of the Union's
majority Nevertheless, it is to be observed that there are the dangers of such inci-
dents, affecting the Union's representative strength, which occur upon a delay in
recognizing the Union's valid majority claims, where there is an insistence only upon
a Board election even though other reasonable means of proof are available.44
Note is taken of Respondent's answer to the complaint. In reply to the allegation
that the Union was the majority representative at the time of its demands, Respondent
simply averred that it had no knowledge as to the truth of this alleged fact.45 Its
answer put forward the position that, because of Section 9(c)(3), Respondent was
under no obligation to recognize the Union; that since at least November 29, 1963
(when the election petition was filed) and continuing to date, it has been in good-
faith doubt that any union has represented a majority of its employees; and that,
absent an election, it is not possible to determine which union , if any, has been a
majority representative.
More significantly, in response to the Union's repeated demands, Respondent did
not advise the Union of any doubt of the claimed majority representation, and it made
no request, directly or indirectly, that proof be furnished Its repeated replies to the
Union were essentially confined to the stand that, by season of Section 9(c)(3), it
was relieved of any bargaining obligation for 1 year after the Board election.46 In
the circumstances, as the authorities have abundantly shown, it was incumbent upon
Respondent to manifest to the Union that it had a good-faith doubt of the claimed
majority status, in order to maintain such a defense.47
Furthermore, however well intentioned , Respondent's reliance upon an erroneous
interpretation of Section 9(c)(3) cannot serve as evidence of its good faith, nor
absolve it, for statutory purposes , from an actual refusal to bargain with the Union,
entitled to be accepted as the employees ' bargaining representative.48
40 Consider discussion on Section 9(c) (3), above.
41 Cf., Majestic Lamp Mfg. Co., 143 NLRB 180, 187.
42 At the opening of the hearing, the General Counsel stated that he took no position
that Joy Silk was controlling "at this point."
42 Hammond & Irving, Incorporated, 154 NLRB 1071 ; Clermont's Inc., 154 NLRB 1397.
44 Cf. George Groh and Sons, 141 NLRB 931, 940-941.
45 In apparent conflict is the testimony of General Manager Lochner that he reached the
conclusion , based upon the facts be had available to him , that no union represented a
majority in the plant on January 25, and the "status" was even more confused on March 1.
I do not, in any event, accept such unsupported conclusions.
41In Respondent 's February 3 letter to the Union, the catchall phrase-"Among other
things"-is plainly insufficient.
41N.L.R.B. v. Dahlstrom Metallic Door Company, 112 F. 2d 756 (C.A. 2) ; Wm. Tehei
Bottling Co., 129 F. 2d 250 (C.A 8) ; N L.R B. v. Trimfit of California, Inc., 211 F 2d
206 (CA. 9) ; Skyline Homes, Inc v. N L.R.B., 323 F. 2d 642 (C.A. 5), cert. denied 376
U.S. 909; N.L.R.B.* v. George Groh & Sons, 329 F. 2d 265 (C A 10), enfg 141 NLRB
931 ; Florence Printing Co. v. N.L.R.B., 333 F. 2d 289 (C A. 4), enfg. 145 NLRB 141 ;
Irving Air Chute Co., Inc v. N L.R.B., 350 F 2d 176 (CA 2)
"N L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co, 369 U.S 736
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certainly, it was the General Counsel's burden to prove the alleged violation, that
Respondent's refusal to bargain was not in good faith. In support of the complaint,
the prima facie case was clearly made out, inter alia, by the evidence of the Union's
substantial majority representation when it presented its demands; Respondent's rejec-
tion of the Union's offer to prove the same by a choice of reasonable means; and its
failure entirely to question the Union's asserted majority. The burden was then upon
Respondent to show justification for its refusal.49 Even when expressed, as it was not
here, a subjective doubt in good faith that a majority of the employees desired the
Union will not serve.50 Respondent's mental state can only be determined by objec-
tive, observable considerations; it must show some "credible basis" for a good-faith
doubt 51 It took no reasonable steps to ascertain the facts concerning the Union's
majority status, and avoided giving the Union an opportuntiy to substantiate its claim,
though the Union offered to prove its majority by means of a third-party unbiased
check of signed authorizations. As has been repeatedly held, when adequate proof of
majority is available in a reasonable manner, the offer cannot in good faith be
refused.52
In Respondent's brief, a variety of grounds are advanced behind the claim of a
good-faith doubt; e. g.:
(a) That, absent an election, Respondent could not have known whether any
union represented a majority and could only have acted at its peril in recognizing
any union.53 However, Respondent here was not in a more favored position than
any other company approached by a majority union for recognition. As earlier
shown, under well-settled law, such an employer has no absolute right to an elec-
tion.54 It is evident that Respondent was not interested in ascertaining the facts,
which it could reasonably have done without an election.
(b) That the Teamsters should have been allowed to intervene, as it was in a better
position than Respondent to show its representation of employees conflicting with that
of the Union. However, Respondent admitted that the Teamsters made no representa-
tion claim upon it at any time after the last Board election. The motion to intervene
was denied for reasons indicated, supra. The testimony of the substantial majority of
the unit employees who signed cards for the Union reveals that they did not con-
temporaneously sign cards for any other union.
(c) That the evidence of the Union's majority, confined to signed authorization
cards, is not worthy of reliance.55 On the contrary, a long line of Board and court
decisions continuing to the present has strongly confirmed that, absent concurrent
organizational campaigns and conflicting claims by rival unions, authorization cards
as a matter of evidence are fully reliable55 Furthermore, it does not disprove this
Union's evidence of majority to offer generalized statistics that a union's card showing
of interest in excess of 50 percent is often not confirmed by the results of the election.
All this argument appears to show is that, statistically, employers generally are more
effective in their election campaigns. The only proper inquiry is whether by means
of cards, this Union has demonstrated clear evidence of majority representation. The
degree of reliability of authorization cards may vary from case to case. As described,
"Mitchell Concrete Products Co., Inc., 137 NLRB 504, 505 ; Fleming & Sons of Colorado,
Inc., a Division of Fleming & Sons, Inc, 147 NLRB 1271, 1273; Cosmodyne Manufactur-
ing Company, 150 NLRB 96; Laystrom Manufacturing Co., 151 NLRB 1482. And see,
e.g, N.L.R.B. v. The Great Atlantic & Paoific Tea Company. Inc., 346 F. 2d 936 (CA. 5).
5tIbid. Also, Skyline Homes, Inc. v. N.L.R.B., 323 F. 2d 642, 648 (C.A. 5).
ci Ibid. Also, N.L.R.B. v. New Era Die Co., Inc., 118 F 2d 500,,504 (C.A. 3) ; N.L.R.B
V. Dahlstrom Metallic Door Co., supra, 757; N.L.R.B. v. Philamon Laboratories, Inc, 298
F. 2d 176, 180 (C.A. 2), cert. denied, 370 U.S. 919; International Ladies' Garment Work-
ers' Union, AFL-CIO v. N.L.R.B., 280 F. 2d 616, 622 (C.A.D.C.).
ca Ibid.
63 Citing N.L.R.B. v. International Ladies' Garment Workers' Union, AFL-CIO
(Bernhard-Altmann Texas Corp.), 366 U.S. 731, where the respondent there was held in
violation for recognizing and contracting with a minority union. However, it can
equally be stated that an employer may not frustrate the basic rights of employees by
withholding recognition of their representative whose majority designation is clear and
is not sincerely questioned.
ss E.g., cases cited supra in footnotes 33 and 34.
65 Citing N.L.R B. v. Johnnie's Poultry Co., 344 F. 2d 617 (C.A. 8).
so For example, in N.L.R.B. v. Great Atlantic & Pacific Tea Co., supra, 942, cited by
Respondent, the court said: 'Authorization cards are certainly appropriate indicators of
union strength in a bargaining unit, . . The plethora of cases, including the Joy Silk
cases and many referred to herein, need no specification The "form" is not essential
but rather the "intent" of the employees . Lebanon Steel Foundry v. N.L.R.B., 130 F.
2d 404 (C.A.D.C.).
STRYDEL INCORPORATED 1197
for the unit of 79 employees, there are 59 perfectly valid cards, or about 75 percent-
not at all a slim margin. Testimony of 57 employees support of each of their authon-
zations' Each read or understood the clear purpose stated on the card, and no
semblance of taint is shown because of any coercion or misrepresentation by the
Union.57
(d) That the employees signed cards for every reason under the sun. The evidence
is quite the reverse. Moreover, the test of the employers good-faith doubt of majority
relates to his knowledge of the facts at the time the Union's recognition demand and
not on what may be revealed in the litigation.58
(e) That "many" employees signed cards to avoid later payment of an initiation
fee. This assertion is simply not warranted from the evidence. Nor did the Union's
statement concerning initiation fees render any of the cards invalid, as earlier shown.
(f) That support of the Teamsters was evident, and that employees favoring the
Teamsters were in contact with Respondent. Again, this is scarcely the tenor of the
evidence.59
(g) That there were "some" votes in the three Board elections favoring no union.
However, the converse is much more significant. If any conclusion is to be drawn
from the character of the voting in the prior elections, it would clearly favor the Gen-
eral Counsel's point that in all three elections the employees overwhelmingly showed
that they favored union representation 60
(h) That the practice of wearing union buttons was diverse; that some employees
wore buttons of two unions simultaneously; and that some were wearing no buttons.
Here Respondent has turned the actual evidence. If it relied upon the practice of
wearing union buttons, as it now appears to argue, it should have reasonably found a
basis for confirming the Union's majority claim.61 Apparently it was observing a
count among the employees who wore union buttons at work. Supervisor McClue tes-
tified that about 80 percent of the 22 employees on his second shift wore buttons for
the Union.62 That some employees did not wear their buttons all the time and others
wore no buttons can hardly be regarded as evidence of opposition to the Union. And
surely, Respondent cannot make much of the fact that one employee wore the buttons
of the Union and the Teamsters simultaneously for a period of 2 weeks, as late as June.
The reference to a "Court Order" in Respondent's February 3 letter to the Union
stated no understandable reason for a refusal to bargain; nor did the filing of charges,
mentioned in its March 1 letter, relieve Respondent of its bargaining obligation.63
All of these arguments of Respondent, found without substance, are deemed part
of the entire record in considering the sincerity of Respondent's position on good-faith
doubt of majority.64
A very recent Board decision contains language with implications of a pertinent
bearing on the issues in the instant case. In John P. Serpa, Inc., 155 NLRB 99,
the full Board stated in a brief opinion: 65
Where the General Counsel seeks to establish a violation of Section 8(a)(5) on
the basis of a card showing, he has the burden of proving not only that a majority
of employees in the appropriate unit signed cards designating the union as bar-
67 See, e g., Lenz Company, 153 NLRB 1399, and cases cited therein.
68 E.g., Fred Snow, et al., d/b /a Snow & Sons v. N.L.R.B., 308 F. 2d 687 , 694 (C A. 9).
69 The whole record shows that interest in the Teamsters was negligible , at best, when
the Union campaigned and made its bargaining demands . Respondent leans solely upon
General Manager Lochner's vague and uncorroborated testimony that he knew employees
were active with the Teamsters in January , that he was contacted by a Teamster em-
ployee who asked if Respondent had signed a contract, and his answer was "No."
60 See N.L.R .B. v. Standard Lime & Stone Co., 149 F. 2d 435 (C.A..4).
61 The wearing of union buttons, standing alone, does not constitute proof of a union's
majority. Russell Kingston, 74 NLRB 1484.
62 Also , Lochner testified that he personally made observations , and supervisors re-
ported to him their obervations , concerning the wearing of union buttons.
63 Skyline Homes, Inc. v. N.L.R.B., supra, 647.
65 E.g., Henry Spen & Company, Inc., 150 NLRB 138.
65 As the Board expressly rested its decision upon the grounds quoted above, it did not
pass upon the basis for the Trial Examiner 's dismissal of the refusal -to-bargain allega-
tion-that the Union's majority status was "fleeting and evanescent ." The union had
requested recognition and at the same time displayed in front of the Respondent authoriza-
tion cards of five of seven employees in the unit . But the union then agreed to respond-
ent's request for time to consult an attorney . Thereafter , within a space of a week,
respondent consulted counsel ; received written notice from two employees who had signed
cards that they repudiated the union ; was served a copy of the Uiiion's refusal-to -bargain
charge; and was again approached by the union for recognition , which it then refused.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining representative, but also that the employer in bad faith declined to recog-
nize and bargain with the union. This is usually based on evidence indicating
that respondent has completely rejected the collective-bargaining principle or
seeks merely to gain time within which to undermine the union and dissipate its
majority.3 In the present case, the General Counsel has not introduced any
evidence which would support such a finding. The fact that the Union placed
the cards in front of the Respondent in such a way that Respondent probably saw
the names and signatures cannot create the obligation to bargain or establish
Respondent's bad faith .4 [Emphasis added.]
3Joy Silk Mills, Inc, 85 NLRB 1263, enfd. 185 F. 2d 732 (C.AD.C.)
"This case is clearly distinguishable from Snow and Sons, 134 NLRB 709, where
the employer agreed to the check of cards against the payroll by a neutral third party
and thereafter rejected the results of such a check and sought a Board election
I cannot comprehend unless a clearer voice commands me, that the Board is chang-
ing policy in Serpa. It is unclear what is intended to be encompassed by the word
"usually" in the context above. Indeed, this term as used is not materially different
from the word "ordinarily" followed by a similar statement which has appeared in
certain cases in the past,66 but which did not alter the decisional course of the Board's
evidence requirements on issues of employer good-faith doubt of union majority. The
particular holding of the Board in Snow & Sons was distinguished on facts, but not
overruled in its language and principles expressed. As described herein, there is a
formidable body of authority in Board and court cases, preceding and succeeding this
Snow case, which holds in situations, as here, where Joy Silk conduct is not a factor,
that the employer when approached for recognition, may not insist on a Board elec-
tion as a matter of right, unless he has made a reasonable, objective showing of a
bona fide doubt of the union's majority predicated on authorization cards 67
In the• final analysis, the question involved is one of evidence, not of policy. An
agency issue is presented whether a majority of employees designated for themselves
a collective-bargaining representative. There is no gainsaying that they are fully enti-
tled to have their representative and to have the employer recognize and deal with
such agent. Indeed, it is a "fundamental right"-long predating this very Act.68 The
right is peculiarity that of the employees, and it is regarded by the Supreme Court
to be as great as that which an employer "has to organize its business and select its
own officers and agents." 69
With this force of public sanction and policy, such a right to a collective-bargaining
representative is not to be denied, even for a term, without clear justification in evi-
dence. Indisputably, an employer's refusal to recognize such an agent of his employ-
ees without a Board certification may be warranted upon a genuine good-faith doubt
that the agent possesses authentic credentials from a majority of the employees. But
it cannot be ignored that, in general, the employer is a natural opponent of the employ-
88 E.g., KTRH Broadcasting Company, 113 NLRB 125, 127.
81For example, N.L.R.B. v. George Groh & Sons, 329 F. 2d 265 (C.A. 10) enfg. 141
NLRB 931 ; Skyline Homes, Inc. v. N.L.R B., 323 F. 2d 642 (C.A. 5), enfg. Section 8(a) (5)
finding in 134 NLRB 155, cert. denied 376 U.S 909; Snow & Sons v. N.L R B., 308 F.
2d 687 (C.A. 9) ; N.L.R.B. v. Sunrise Lumber & Trim Corp, 241 F. 2d 620 (CA 2),
enfg. 115 NLRB 866, cert. denied 355 U.S. 818; N.L.R.B. v. Philamon Laboratories, Inc,
298 F. 2d 176 (C.A. 2), enfg. 131 NLRB 80, cert. denied 370 U.S. 919; N.L.R.B. v.
Trimfit of California Inc., 211 F. 2d 206 (C.A. 9), enfg. 101 NLRB 706; N.L.R.B. v.
Clarksburg Publishing Company, 120 F. 2d 976 (CA. 4), enfg. Section 8(a) (5) finding
in 25 NLRB 456;'N.L.R.B. v. New Era Die Co., 118 F. 2d 500 (C.A 3), enfg. Section
8(a) (5) finding in 19 NLRB 227; N.L.R.B. v. Dahlstrom Metallic Door Company, 112
F. 2d 756 (C.A. 2), enfg. 11 NLRB 408; N.L.R.B. v. Piqua Munising Wood Products, Co,
109 F. 2d 522 (C.A. 6) ; Rocky Mountain Phosphates, Inc., 138 NLRB 292; Dixon Ford
Shoo Co., Inc., 150 NLRB 861 ; Henry Spen & Co., 150 NLRB 138; Fleming & Sons, 147
NLRB 1271; Kellogg's, Inc., d/b/a Kellogg Mills, 147 NLRB 342; Mitchell Concrete Prod-
ucts Co., Inc., 137 NLRB 504; Robert P. Scott, Inc., 134 NLRB 1120. Also on principle:
United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62; N.L R B. v
District 50, United Mine Workers of America, 355 U.S. 453; Irving Air Chute Co. v.
N.L.R.B., 350 F. 2d 176 (C.A. 2) ; Edwards Fields, Inc. v. N.L.R.B., 325 F. 2d 754 (CA.
2) ; International Ladies' Garment Workers' Union, AFL-CIO v. N.L.R.B., 280 F 2d
616 (C.A.D.C.) ; Bernet Foam Products Co., Inc., 146 NLRB 1277, at 1283.
68 International Union, U.A.W.A., A.F. of L, Local 232, et al. v. Wisconsin Employment
Relations Board (Briggs & Stratton Corp.), 336 U.S. 245.
11 N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U S. 1, 33
STRYDEL INCORPORATED 1199
ees and their agent when sitting across the bargaining table, and is not always a dis-
interested, impartial arbiter on the evidence question of whether the employees' agent
has been properly designated. It is all too facile for'an employer to make the bare
assertion of a "good-faith" doubt even though the agent does have a clear majority
and can reasonably support the claim without it Board election., It would thus seem
basic that, in support of such an expressed good faith doubt, substantive and convincing
evidence on the employer's part would be requisite to overcome the employees' funda-
mental right to prompt recognition of their appointed majority agent.
Based upon the totality of Respondent's conduct on and after the Union's demands,
and upon the record as a whole, it is concluded that Respondent did not have a good-
faith doubt of the Union's majority agency and that it did unlawfully refuse to bargain
in violation of Section 8(a) (5) of the Act, as alleged.70
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent set forth in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor. practices, I shall
recommand that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully refused to bargain with the Union as
the exclusive representative of its employees in an appropriate unit. It will therefore
be recommended that Respondent, upon request, bargain collectively with the Union,
and in the event an understanding is reached, embody such understanding in a signed
agreement.
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. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. Since January 25, 1965, and at all material times, the Union has been the exclu-
sive representative of all employees in the following appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(b) of the,Act:
All production and maintenance employees at the Stryker, Ohio, plant, excluding
all office clerical employees, professional employees, guards, and supervisors as
defined in the Act. ,
5. By refusing to bargain collectively with the Union as the exclusive representa-
tive of its employees in the appropriate unit, the Respondent.has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a)(5) and (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I shall recommend that Respondent, Strydel, Incorporated,
Stryker, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Union of District 50,
United Mine Workers of America, as the exclusive representative of all Respondent's
employees in the appropriate unit described hereinabove.
70 In accordance with the results reached herein, Respondent's proposed findings of fact
numbered 1 through 6, 8, 9, and conclusions of law A and B are granted, and the
remainder denied as improper or unnecessary.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening employees with layoffs, imposition of more onerous working con-
ditions, or other reprisals, to discourage their union adherence or activities.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of their rights guaranteed in Section 7 of the Act:
2. Take the following affirmative action I find will effectuate the policies of
the Act:
(a) Upon request,'bargain collectively with the above-named Union as the exclu-
sive representative of all the employees in the appropriate unit, and embody in a
signed agreement any understanding reached.
(b) Post at its Stryker, Ohio, plant, copies of the attached notice marked "Appen-
dix A." 71 Copies of said notice, to be furnished by the Regional Director for Region
8, shall, after being duly signed by Respondent, be posted immediately upon receipt
thereof, in conspicuous places, and be maintained for a period of 60 consecutive days.
Reasonable steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 8, in writing, within 20 days from the
receipt of this Trial Examiner's Decision, what steps Respondent has taken to comply
herewith.72 -
71 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
In the notice. , If the Board's Order Is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
7' If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 8, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith." '
APPENDIX A
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 Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to recognize International Union of District 50, United
Mine Workers of America as the exclusive representative of the employees in
the appropriate bargaining unit described below.
WE WILL NOT threaten employees with layoff, or imposition of more onerous
working conditions, or any other reprisal, to discourage their adherence or activi-
ties in the above-named, or any labor, labor organization.
WE WILL NOT in any like or related'manner interfere with, restrain, or coerce
employees in'the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist the above-named, or any other labor organization, 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.
WE WILL, upon request, bargain collectively with the above-named Union as
the exclusive bargaining representative of all employees in the bargaining unit
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 agreement. The bargaining unit is:
All production and maintenance employees at the Stryker, Ohio, plant,
excluding all office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
STRYDEL,INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other. material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. 621-4465.
S. E. NICHOLS COMPANY, ETC . 1201
APPENDIX B
Card Signed
Name 1965
1. Marilyn Wheeler______ January 11
2. Patsy Wheeler________ January 11
3. Ida Irene Joughin_____ January 12
4. Earl Joughin ----- ---- January 12
5. Doris Layman________ January 12
6. Ola McNair__________ January 12
7. Betty Pace___________ January 12
8. Edith Reeser_________ January 12
9. Kay Ann Reiniche____ January 12
10. Donald Rau_________ January 12
11. Lois Hinkley_________ January 12
12. Lavina Baker___ _____ January 12
13. Linda Brodbeck ------ January 12
14. Leota Staats_________ January 13
15. Robert Weaver_______ January 13
16. Sherrell Patterson----- January 13
17. Dwight Peugeot____January 14
18. Patricia McCord______ January 14
19. Mary Sue Sickmiller___ January 14
20. Carol Lloyd (Cox)___ January 14
21. Clela Headley________ January 14
22. Marjorie Grant_______ January 14
23. Zelma Blakely________ January 15
24. Ruby Reagle_________ January 15
25. Janet Altaffer________ January 15
26. Phyllis Spangler------ January 18
27. Jim Guerrero-------- January 18
28. Nancy Grime _________ January 18
29. Ray Banks_______ ____ January 19
30. Frank Cuellar________ January 20
Card Signed
Name 1965
31. Robert Mendez ------- January 20
32. Elsie Long___________ January 20
33. Hattie Brodbeck______ January 22
34. Shirley Knapp________ January 23
35. Marcelina Madrigal--- January 23
36. Judy Ann McCauley __ January 23
37. Susan Hausch________ January 25
38. Delores Bernath______ January 26
39. Jose Angel Martinez___ January 26
40. Beatrice Rose________ January 26
41. Barbara Miller_ ______ January 26
42. Carol Clark__________ January 27
43. Maxine Hodson______ January 27
44. Mary Wheeler________ January 28
45. Manuel Madrigal----- January 29
46. Catherine Wagner____ January 30
47. Eileen Taylor________ January 30
48. Patricia Van Auken ___ January 30
49. Connie Miller________ January 30
50. Jean Baker__________ January 30
51. Jacob Carmean______ January 30
52. Ruby Cramer________ January 30
53. Leona Crisp (Gamble ) February 1
54. Margaret Osten______ February 7
55. Mary Malone________ February 8
56. Dona Meyers__ _____ February 13
57. Lou Ann March_ ____ February 18
58. Vister Flory ________ February 24
59. Elva Shirkey---------- March 1
S. E. Nichols Company ; Nichols Discount City ; Butlers' Shoe
Corporation ; The Richards Corporation ; Barbara Lynn Stores,
Inc.; P.H.S. of Elmira and Local 1687, Retail Clerks Interna-
tional Association , AFL-CIO. Case No. 3-CA-2519. Febru-
ary 2, 1966
DECISION AND ORDER
On October 26, 1965, Trial Examiner William W. Kapell 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 Deci-
sion . He also found that allegations of an additional unfair labor
practice set forth in the complaint had not been sustained. Thereafter,
the Charging Party and the Respondent filed exceptions to the Trial
Examiner's Decision and the General Counsel filed exceptions and a
supporting brief.
156 NLRB No. 106.