T. M. Duche Nut Co., Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1969

174 N.L.R.B. 457 (N.L.R.B. 1969)

T. M. DUCHE NUT CO., INC.
T. M. Duche Nut Co., Inc. and Construction and
General Laborers Union , Local 185, AFL-CIO
T. M. Duche Nut Co., Inc. and Construction and
General Laborers Union , Local 185, AFL-CIO,
Petitioner. Cases 20-CA-4537 and 20-RC-7414
February 12, 1969
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
13Y CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On May 6, 1968 , Trial Examiner Allen
Sinsheimer , Jr., issued his Decision in the
above-entitled cases, finding that Respondent had
engaged in and was engaging in certain unfair labor
practices alleged in the complaint and
recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in
the attached Trial Examiner ' s Decision . He further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended that such allegations be
dismissed . Finally, he found that the Union's
objections to the election in Case 20 - RC-7414 were
valid and recommended setting the election aside.
Thereafter , Respondent filed exceptions to the
Decision and a supporting brief , and the General
Counsel filed an answering 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 these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the Trial
Examiner's Decision, the exceptions , the briefs, and
the entire record in these cases, and finds merit in
Respondent ' s exceptions. Accordingly , the Board
adopts the findings . conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The Trial Examiner found that Respondent
coerced and restrained employees in violation of
Section 8 (a)(1) by Assistant Plant Superintendent
Alfred Stokes ' preelection statement to employee
Violet Warmack, and by President Howard
O'Neill ' s preelection speeches to employees. He
further found that, in refusing to bargain with the
Union without an election , Respondent was not
acting in good faith and therefore violated Section
8(a)(5) of the Act. Respondent contends that Stokes'
and O'Neill's statements were not coercive and that
its refusal to bargain with the Union without an
election was not unlawful.
457
1. Except for O'Neill's speeches to employees and
Stokes' conversation with employee Warmack, the
Trial Examiner found that Respondent had not
committed any other unfair labor practices.
One or 2 days before the election, President
O'Neill made seven substantially identical speeches
to separate groups of employees varying from 10 to
17 in number. A synthesis of the significant
testimony credited by the Trial Examiner shows that
O'Neill first told the employees that he did not
intend to make any threats or promises. He then
discussed the employees' and Company's economic
position. He mentioned the unemployment benefits
enjoyed by seasonal employees, saying that this
benefit amounted to $90,000 for the previous season,
that this was_ nearly $1 an hour added to their
income which was tax free, and that the Company
was paying as much as it could. He referred to other
nut companies operating a_ single shift year-round
which gave employees health benefits that the
Company's seasonal employees did not receive and
said that the Company had showed a loss the
previous year, and that 60 percent of its costs went
for labor. He also said that if Respondent were
forced to give health and other benefits it could not
afford, it would have to alter its operations so as to
have one shift on a year-round basis. He reminded
employees of benefits the Company had given in
recent years including salary increases, Thanksgiving
and Christmas gifts, paid holidays, and free coffee.
When employees questioned him about what
would happen to the night shift in the event of a
change in operation, O'Neill answered that this
would probably be eliminated; that the reduction in
the work force would be accomplished by retaining
the best employees from every shift.
O'Neill also stated that while the law required
bargaining in good faith, he was under no obligation
to accept the Union's demands, that he would be
hardnosed about bargaining, that he would have to
meet with the Union, but that no one could force
him to agree to or accept the Union's demands.
O'Neill made further statements, apparently in
answer to questions about rumors of a strike. They
were that should there be a strike, the Company
would continue operating; that even if 60 percent of
the employees struck, the Company could operate
with replacements, and that it had three telephone
calls by applicants for every job.
Employee Warmack testified that about a week
before the election, she asked Assistant Plant
Superintendent Stokes "when we were going to be
through work. I told him I was anxious to go
campaigning..... He said he wasn't sure when we
would finish, and I told him I had heard that they
was going to have to work year-round if we went
union. . ..." According to Warmack, Stokes then
said, "Yes, this was the only way they could make it
pay is to go year-round basis. . . . ... They then
discussed the employees' seniority, Warmack asking
how long her mother had worked and Stokes
174 NLRB No. 72
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acknowledging that there would be some layoffs if
the Company were forced to change its method of
operation.
The Trial Examiner found that O'Neill and
Stokes threatened employees by remarks which, in
summary, were that if the employees selected the
Union, the Company would go to a year-round
one-shift operation, thereby reducing jobs and
benefits. He found that O'Neill made clear that if
employees selected the Union, the Company would
not bargain and employees might lose their jobs. He
further found that O'Neill's statements about the
Company's ability to operate with replacements in
the event of a strike, while not alleged to be
violative of the Act, threatened the inevitability of a
strike and, when considered in combination with
testimony as to a possible change to a one shift
operation, threatened job loss by replacement.
We do not accept the Trial Examiner's evaluation
of O'Neill's and Stokes' statements to employees.
We note, first, that the Trial Examiner dismissed
other allegations that Respondent had committed
unfair labor practices. O'Neill's speeches and
Stokes' statement must therefore be appraised
against a background free of unfair labor practices.
O'Neill's speeches appear to represent a reasoned,
non-inflammatory attempt to explain the difficult
economic condition in which the Company was
placed, its already heavy costs and benefits paid to
employees, and the necessity it would be under to
change its method of operation if it were forced to
further increase its costs by paying the additional
benefits which the Union was demanding. An
employer is not precluded from conveying to its
employees the possible adverse economic
consequences that might be expected if its business
costs are increased, provided this is done in a
noncoercive manner.' Such expressions constitute
permissible predictions of the possible economic
consequences of increased costs rather than threats
of reprisal to force employees into abandoning the
union.' Nor do we consider the above statements of
O'Neill coercive when considered together with the
expressed intention to operate with replacements in
the event of a strike. Such expressed intention is not
an unfair labor practice;3 in fact, the complaint
contained no such allegation, and it cannot convert
O'Neill's other statements about economic
consequences into unlawful coercive threats, as the
Trial Examiner implied.
We also find, contrary to the Trial Examiner, that
O'Neill's statement about being a hard bargainer
and not yielding to the Union's bargaining demands
was not in context coercive within the meaning of
Section 8(a)(1) of the Act.4
'Wagner Industrial Products Company, Inc ., 170 NLRB No 157, TRW
Electronic Component Division , TRW, Inc., 169 NLRB No. 6
2Id
'Skirvin Hotel and Skirvin Towers, 142 NLRB 761, 764.
"Eagle-Picher Industries , Inc, 171 NLRB No. 44 (TXD)
Finally, we do not adopt the Trial Examiner's
finding that Stokes' answer to employee Warmack's
query about the truth of a rumor she had heard
"that they was going to have to work year-round if
we went union" constituted a threat of reprisal in
violation of Section 8(a)(1). Stokes' reply, according
to Warmack, was "that this was the only way they
could make it pay." Whatever the meaning that
might be attributed to Stokes' answer to Warmack
standing alone, it was clarified by O'Neill's
subsequent speeches to employees in which he said
that if the Company were forced to increase it costs
it might have to change to a year-round operation.
The employees could therefore have only understood
Stokes' remarks as being similar to that of O'Neill's
i.e., if costs were increased, operations might have
to be changed to compensate for the cost increases.
For the reason we have found O'Neill's more
explicit statement not unlawful, we find Stokes'
statement similarly not unlawful.
2. The Trial Examiner found that Respondent in
bad faith refused to bargain with the Union without
an election, basing the bad-faith finding on the
unfair labor practices which he found Respondent
had committed. However, we have not adopted the
Trial Examiner's finding of 8(a)(1) violations, and
we are not persuaded that the record as a whole
otherwise justifies a finding that Respondent did not
have a good-faith doubt of majority and in bad faith
refused the Union's request for recognition and
bargaining. Accordingly, we shall dismiss the 8(a)(5)
allegation of the complaint.5
3. The hearing on the Union's objections to the
election was consolidated with the unfair labor
practice case because the objections were based on
the same conduct which the complaint alleged were
unfair labor practices. Based on his finding that
Respondent had unlawfully threatened to change its
method of operation if the employees selected the
Union as their representative, the Trial Examiner
sustained the objections and recommended that the
election be set aside. As we have found contrary to
the Trial Examiner, that Respondent's statements
alleged to be objectionable were not coercive, we
hereby overrule the objections to the election based
on the same statements. We shall also certify the
results of the election which establish that a
majority of the valid votes were not cast for the
Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is dismissed.
'The Trial Examiner recommended in the alternative that a bargaining
order issue to remedy the 8 (a)(1) violations which he found As we have
overruled the Trial Examiner's findings of violations , we need not consider
this remedy recommendation
T. M. DUCHE NUT CO., INC.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of valid
ballots has not been cast for Construction and
General Laborers Union, Local 185, AFL- CIO, in
the election held herein , and that said Union is not
the exclusive representative of the employees in the
unit found appropriate within the meaning of
Section 9(a) of the National Labor Relations Act,
as amended.
MEMBER BROWN , dissenting:
Like the Trial Examiner , I would find that
Respondent violated Section 8(a)(1) and (5) of the
Act and would sustain the objection to the election
in Case 20-RC-7414.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: This
consolidated proceeding was heard at Redding, California,
on October 17-19, 1967. The representation proceeding in
Case 20-RC-7414 was initiated by a petition filed by the
Union on February 21, 1967; it was followed by
Stipulation for Certification Upon Consent Election
approved March 7, 1967; and then by an election on
March 17, 1967, which the Union lost,' and to which the
Union filed timely objections The complaint2 in Case
20-CA-4537 issued on August 9, 1967.
On August 9 the Acting Regional Director for Region
20 issued a report on objections and order consolidating
cases for the purpose of hearing before a Trial Examiner
and a Notice of Hearing of the consolidated cases.3
The Acting Regional Director specifically found that
Objection No. 2 filed by Petitioner raised substantial and
material issues of fact which should be resolved before a
Trial Examiner and involved some of the same conduct
alleged to be unfair labor practices in Case 20-CA-4537.
Objection No. 2 was set forth as follows: "2.
Management's threat to discontinue swing shift if
employees voted Union, thereby creating considerable loss
of jobs contrary to Act."
The questions presented are: (1) Did the Union
represent a majority in an approproprial.e unit? (2) Did
Respondent engage in conduct which should result in
setting aside the aforesaid election? (3) Did Respondent,
by refusing to recognize the Union, and its subsequent
conduct and activities, violate Section 8(a)(1) and (5) of
the Act? (4) If so what should the remedy be?
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs of the
General Counsel and Respondent Employer, I make the
following:4
'The tally of ballots shows 47 votes cast for the Union, and 68 against.
'An original charge was filed on May 18, 1967, and a first amended
charge on July 27, 1967
'The actions of the Regional Director directing a hearing on the
aforesaid objections and his order consolidating cases were affirmed by the
Board on September 27, 1967.
'The General Counsel and Respondent Employer have each filed
separate motions to correct the transcript of the hearing in certain respects
No opposition thereto has been filed . I have carefully examined the
requested corrections and conclude that in each instance the requested
correction should be made The corrections requested by both the General
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
459
Respondent is a California corporation engaged in the
processing and wholesale sale of nuts with its principal
place of business in Orland, California. During the
calendar year preceding the issuance of the complaint, the
Respondent sold and shipped goods valued in excess of
$50,000 directly to customers located outside the State of
California. Respondent 'admits and I find that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and I further find that the assertion of
jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and I find that Construction and
General Laborers Union , Local 185, AFL- CIO (herein
called "the Union") is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
On about January 13, 1967, the Union commenced
organizational activities among employees of the
Respondent.
On January 24, 1967, the Union wrote to Respondent
advising that "many of your employees have indicated an
intent in authorizing our Local Union to represent them
for purposes of collective bargaining " It also referred to
employees rights to organize and Federal law prohibitions
against interference, restraint, or coercion of employees in
exercising such rights as well as prohibition of employer
discrimination in hiring or employment to discourage or
encourage membership in a labor organization. It
concluded that if any conduct constituting an unfair labor
practice came to its attention, the Union would bring the
matter to the attention of the NLRB.
Subsequently on February 6, 1967, the Union wrote
Respondent as follows:
Please be advised that Local Union 185, of the
Construction and General Laborers, represents a
majority of your employees.
We have obtained authorization cards from a
majority of the employees employed by your firm in a
unit that is appropriate for purposes of collective
bargaining.
We are requesting immediate recognition of Local
185 as the Collective Bargaining Agent of your
employees for the purposes of negotiating an agreement
for wages, hours and working conditions.
We are available to meet with representatives of your
Company at a mutually convenient time and place, in
order to negotiate and discuss the terms and conditions
of a collective bargaining agreement.
In the event you have any doubt as to whether our
Union represents a majority of your employees, we are
willing to have an independent third party check our
authorization cards, signed by your employees, against
your personnel records.
Counsel and the Respondent Employer are accordingly hereby granted and
set forth in Appendix "A" attached hereto and made a part hereof.
[Omitted from publication I
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The State of California has a conciliation service,
which provides conciliators, who are fair and equally
acceptable to labor and management.
Upon contact, a member of the State Conciliation
Service will perform this card check and advise you as
to whether we do represent a majority of your
employees if such is your desire.
We would appreciate an early reply on this matter.
On February 21, 1967, Respondent replied by letter as
follows:
This will acknowledge your letters of January 24,
1967, and February 6, 1967.
Please be advised that T. M. Duche Nut Co., Inc.,
will recognize Local Union 185 as the bargaining
representative of its employees when Local 185 has
been certified as such by the National Labor Relations
Board following a secret election.'
The same day, February 21, the Union filed the
representation petition in Case 20-RC-7416.
B. The Principal Issues
1. Did the Union represent a majority in an appropriate
unit on and after February 7 the day after its letter of
February 6 was sent and the date alleged in the
complaint?
2. Did Respondent engage in unfair labor practices
requiring the election be set aside?
3. Did Respondent engage in conduct or activities
which were such unfair labor practices as to require a
finding of violations of Section 8(a)(1) and (5) and a
remedy of an order to recognize and bargain with the
Union in the event it represented a majority in an
appropriate unit?
The authorization cards were all in the following form
AUTHORIZATION FOR REPRESENTATION UNDER THE
NATIONAL LABOR RELATIONS ACT
I, the undersigned, employee, of the
(Print full name of Company)
Employed as
(Print your occupation or a description of your job)
at
(City) (State) (Location of Project)
hereby authorize Local Union, No of the
affiliated with the AFL-CIO, to
represent me and, in my behalf, to negotiate and
conclude all agreements as to, hours of labor, wages
and other employment conditions in accordance with
the provisions of the National Labor Relations Act of
July 5, 1935, as amended by the Labor-Management
Act of 1947.
The full power and authority to act for the undersigned
as described herein supersedes any power or authority
heretofore given to any person or organization to
represent me, and shall remain in full force and
effect for one year from date and thereafter, subject
to thirty (30) days written notice of my desire to
withdraw such power and authority to act for me in the
matters referred to herein.9
Date
(Signature of Employee)
(Home address)
1. The majority issue'
The Stipulation for Certification upon Consent Election
provided (and the parties agreed) that the following unit
was appropriate:
All production and maintenance employees of the
Employer at its processing plant at Orland, California
excluding office clerical employees, guards and
supervisors as defined in the Act.
It was further stipulated that there were a total of 116
eligible persons in said unit at times material herein. A
majority accordingly is 59. The General Counsel
submitted in evidence 69 signed' authorization cards. The
circumstances surrounding the signing and obtaining of
the cards will be considered hereafter.8
'Howard O'Neill, president of Respondent , credibly testified that he was
absent from his office when the letter of February 6 was received and did
not return until February 18 or 19 after which he consulted counsel and
dictated the letter of February 21 which was mailed that afternoon.
'Some of the matters considered herein with respect to the majority
issue, alleged unfair labor practices and ultimate remedy are in certain
respects highly controversial and have resulted at times in varying views or
positions among the courts, the Board ; law review writers and other
commentators Inasmuch as it is Board policy to require Trial Examiners
to adhere to Board decisions until changed by it or the Supreme Court, I
shall be governed by Board decisions where applicable. See Iowa Beef
Packers, 144 NLRB 615, 616
'One, that of Margarita Dominguez was admittedly signed by her
husband under circumstances described hereafter
'This included testimony as to what was said in connection with the
signing of an authorization card, the circumstances surrounding the
signing, and in some instances where material statements or
representations of the solicitor were vague or ambiguous testimony as to
Attached hereto and made •a part hereof as Appendix B
is a. list of the signed authorization cards in evidence and
by whom solicited (originally submitted by the General
Counsel as part of his brief) which has been checked and
corrected by me so as to accurately reflect the record.
Reference thereto will accordingly be made from time to
time hereafter.
Of the 69 cards introduced by the General Counsel, he
contends that "58 authorization cards- were introduced by
the uncontradicted testimony of the Union representative
or an employee who solicited the card" and "There is no
evidence that any improper statements were made by
these solicitors and the cards must therefore be accepted."
Were the matter quite that simple all that would
presumably be necessary would be to find one other valid
card to establish a majority and ignore the remainder.
However, the Respondent contends . . many of the
employees who signed the cards did not contemplate
giving to the Union their bargaining rights but signed the
the understanding of the signers
'I note that the last paragraph of this card set forth above is the same as
that which the Court of Appeals for the First Circuit in N L.R B. v
Southbridge Sheet Metal Works, Inc., 380, U.S. 851, found to be an
illegal restriction (stating that the Board so conceded ) and strongly
disapproved of it as improperly restricting an employee ' s right of
withdrawal after signing . However , the Court also pointed out that the
record did not show that the clause had the slightest effect. It concluded
"Under the circumstances we do not think that Respondent has met its
burden of showing that employees underwent a change of mind or were
prohibited from manifesting it." The same conclusion is applicable herein
as there is no evidence of any effect therefrom.
T. M. DUCHE NUT CO., INC.
cards after being told by Union organizers that the signing
was for purposes other than representation "10 Respondent
after analyzing testimony of certain witnesses in its brief
also contends: "We think it a fair inference that if the
witnesses mentioned above were advised as they testified
they were advised, then such tactics must have been
uniformly followed, and this manifestly destroys any claim
that the Union represented a majority of Respondent's
employees." I interpret this as well as other contentions of
Respondent to amount to a claim that such a pattern of
improper conduct, assertions, or representations occurred
as to invalidate a union majority in any event. In addition
it should be noted that testimony as to the signing of
cards, the circumstances thereof and representations
relative thereto directly or indirectly involved more
persons than the eleven referred to by the General
Counsel. Also as will appear hereafter, the General
Counsel and Respondent differ as to what was said to
certain persons who signed cards and as to the impact or
effect thereof.
Accordingly, I shall consider record testimony relative
to the card signing by the 69 persons whose cards are in
evidence with particular reference to contentions as to
specific invalidity as well as of general invalidity asserted
by Respondent.
Hugh Cowan, assistant business representative of the
Union, testified that on January 13, 1967, he was
contacted by a Robert Hodge, an employee of
Respondent, and met with Hodge and employee Kenneth
Stokes in Orland. He talked to them and explained that if
they were interested in having union representation "it
would be necessary for the Union to obtain a majority of
cards of the employees at the Duche Nut Company."
Cowan was then asked "What do you mean by cards?"
He replied: "These were the authorization cards, and if we
obtained a majority of these cards we could then contact
the company and ask them, after we have stated that we
do have the majority, that we would like to sit down and
negotiate an agreement or talk along those lines."
Cowan testified that subsequently on January 21, he
and another union representative, William Brickell, met
with some twelve employees of Respondent at the B & B
Cafe in Hamilton City (rather than Orland). According to
Cowan, the following employees of Respondent were
present. Robert Hodge, Hurshell Hodge, William Holmes,
Burley Headly, Ed Bayless, Everett Button, Michael
Utter, Thomas Utter, Kenneth Stokes, Dale Standridge,
Gail (Gale?)" Wells, and Jerry Phillips.
Cowan stated that all employees present signed a card
at that time. Eight of these twelve were offered and
received in evidence.' 2
Cowan testified that the cards were signed in his
presence by the person whose name appeared on the card,
that the men were afforded about 10 minutes to read the
card, and he observed them looking at the cards. Cowan
also solicited and obtained the cards of Mary Lou
Castillo, Violet Warmack, George Embrey, Ivan Leach,
George Stokes, Anne Conlee, Roma Croft, and Margarita
"Whether such was the case and whether if so under Board decisions the
particular card should be invalidated will be considered post
" Transcript spelling is Gail but GC 5 list of employees has a Gale Wells
"Supt Plant Maintenance "
"The cards of Kenneth Stokes, Gail (Gale?) Wells and Dale Standridge
were not offered in evidence - Standridge, Stokes and Wells were crossed
off the list of employees in evidence (as GC Exh.5) apparently as
supervisors . The card of B H. Headly was identified and offered but ruling
was reserved and the card subsequently withdrawn as Headly was not
employed on February 7
461
Audelo. Cowan, in conjunction with employee William
Holmes, also obtained cards signed by Ragna Dobratz,
Amy Oltjinbruns, Consuelo Dominguez and one (in
evidence) signed for Margarita Dominguez by Consuelo
Dominguez discussed post 13
According to Cowan, he saw Mary Lou Castillo on the
morning of January 27 and "I explained to her again that
my reason for coming was to talk to her about the
organizing of the employees and explained to her that it
was necessary for us to get a majority in order to be able
to approach the company and ask for recognition and
perhaps get an agreement and I gave her a card, an
authorization card.. .
Cowan testified in similar vein as to what he told other
card signers. He said he (and Union Representative
William Brickell) told Violet Warmack (who in turn
solicited other signers): "We talked to Mrs. Warmack in
regard to that we were endeavoring to organize the
employees of the Duche Company, and we explained to
her what was necessary to do this, such as signing the
authorization cards and a majority, and then approaching
the company and asking to be recognized and perhaps sit
down and make an agreement.'91 4
Cowan was asked on cross-examination if he mentioned
anything about an election. He replied that from time to
time an election was mentioned by people he spoke to,
who knew about a prior election at Duche 'and asked if
there would be another. Cowan testified: "I said at this
time I didn't know, that we were only seeking
authorization so that we may approach the Company and
ask for recognition." He was asked, "Did you ever say
that you wanted these cards so you could have an
election?" Cowan answered "No, sir, I didn't." Cowan
also denied telling anybody, "If enough of you sign cards
we can have an election." Cowan also stated he did not
tell anyone that the reason he wanted them to sign cards
was so they would be protected if the Company took
disciplinary action.
In response to a question from the Trial Examiner,
whether anyone asked with respect to the authorization
card, "What is it for?" and "What does it mean?" Cowan
testified that something like that was asked and that he
explained: "This is the authorization card, that I have
been explaining to you" or "This is the card that I have
been telling about that gives you [sic, "us"?] the
authorization to speak for you or to approach the
company on this majority that we are seeking."
Violet Warmack, as set forth above, an employee of
Duche also signed a card upon Cowan's solicitation on
January 27. Warmack testified that employees Joy
Brumaugh, Alice Larsen and Frances Simpson signed
authorization cards in her presence on January 31. On
cross-examination she testified:
Q. When you signed up the three individuals that you
did sign up, did you tell them that there might be an
election
A. No.
13In addition to these cards which were received in evidence, Cowan
obtained cards from , among others , Mary Garcia which was not offered
because signed February II after the demand.
"Cowan testified specifically as to similar statements to Ann Conlee and
Amy Oltlinbruns. His testimony as to a specific conversation with Roma
Cross was that he explained to her that we were seeking
authorization cards from the majority of the employees at the Duche
Company" He told Margarita Audelo " .. that we were endeavoring to
organize the employees of the Duche Company , that it was necessary, of
course , to have a majority, ..."
1
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q Did you say anything at all about an election?
A. My exact words were when I told them, to the
best I can remember, I told them that these cards
authorized the union - authorized the union to
approach the plant and try to bargain for us as our
representatives, but if the plant wouldn't come to an
agreement or bargain with them, then they would go to
an election
Warmack then testified:
Q. Let me read to you from your affidavit which you
gave to Mr. Engler, 1967, April 11, the next to the last
paragraph on page 2:
" I signed a union card on January 27, 1967. Mr.
Cowan of Local 185 was present when I signed the
card I was told that if the union could get enough
signers they could present the card to the company and
they then could negotiate with the company for the
employees."
Now, did Mr. Cowan tell you that?
A. Yes.
Q. Continuing reading. "If the company did not
accept the union, then there could be an election." Mr.
Cowan told you that, didn't he?
A. Yes, he did. I asked him that and he told me that
in reply.
William Holmes, who was an employee of Duche,
testified as to his soliciting authorization cards from some
28 persons; namely, Hazel Hall, Mary Mattis, Dan
Mattis, Norma Gomes, Marjorie Susee, Edith Ferry,
Patricia Butler, Sam Ross, Margie Wilson, Fred Wilson,
Ivan Wilson, Joann Holmes, Claude Keller, Howard M.
Cook, Glenda Rolfs, Nyla Standridge, Barbara J.
Crawford, Audra Bell, Helen Enos, Donald Prince, John
Adlesich, Mary R Hatcher, Pauline Herman, Lloyd
Leach, Naomi Leach, Elenora Woodward, Thomas
McMartin, and Albert Chavez.15
According to Holmes he first knew of an election when
he saw some NLRB notices posted by the Company, he
asked Cowan about them and Cowan told him the
Company had asked for an election so the Union filed for
it. Holmes testified he didn't recall Cowan stating that the
reason he wanted the cards signed was so that people who
signed would be protected against reprisal by the
Company.
In response to questions from the Trial Examiner
concerning certain specified persons from whom Holmes
testified he had solicited cards, Holmes said he told these
persons that they "were trying to organize to get the
majority to get the Union to speak to the company for us
to negotiate," and ". . by signing the card they would
help me get the majority so we could get representation by
the Union...." On further examination by the General
Counsel Holmes testified he explained to the employees
that by "representation" he meant that the Union had the
kind of men who could negotiate with the Company for a
contract. He denied telling any employee that the only
reason he was asking him to sign a card was for an
election. On further cross-examination Holmes stated that
he never told anyone that one of the reasons for signing a
card was to get an election and added "I never mentioned
an election."
The Respondent asserts in its brief that Cowan is not to
be credited in his testimony "that he never said he wanted
cards signed in order to have an election" or that he never
said "that the signing of the card was just to indicate that
"These are exclusive of those obtained when with Cowan referred to,
supra.
they were willing for the Union . . . to give there the
union's viewpoint". Respondent asserts that no less than
five named witnesses including a witness for the General
Counsel testified that Cowan said "there could or would
be an election."' b Respondent also specifically refers to
witness Violet Williams' testimony relative to an alleged
statement by Cowan to her that signing a card only meant
he had the right to talk with them.
Respondent also asserts that three witnesses" testified
contrary to Cowan that he told them a reason he wanted
them to sign the card was to afford them union protection
in the event of disciplinary action.
Respondent also refers to Holmes' testimony that
Cowan told him that the reason there was an election was
that Duche asked for it Respondent argues that either
Cowan or Holmes testified falsely since the petition
received on the morning of February 21 by the N.L.R.B.
regional office manifestly was mailed by the Union before
it received O'Neill's letter of February 21, mailed on the
afternoon of February 21.
Respondent also points out Cowan testified he had been
contacted by Robert Hodge while Hodge testified he had
contacted Cowan.
First, as to Respondent's contention that the testimony
by Holmes that Cowan told him there was an election,
because Duche asked for it, reflects a falsehood either by
Cowan or Holmes. Holmes said he asked Cowan about
this after he first learned of an election when he saw
NLRB notices posted. According to Holmes he asked
Cowan what the notices were about and if this meant an
election Cowan responded that there was going to be an
NLRB- election. Holmes then testified (on
cross-eamination):
Q. You asked him how come9
A. Yes, he said Duche had asked for an election,
certified election
Q.. No, he said that the reason that the union had
filed for an election was because Duche had asked for
an election?
A. Right. I believe that's right.
Q. Did he say he got a letter from Duche asking for
an election?
A. I don't recall.
Holmes' testimony must be viewed as referring to a time
when NLRB notices were posted which would be after the
petition was filed and in normal course be after
Respondent's letter of February 21 was received by the
Union; the record reflects that on February 6 the Union,
as set forth, supra, had written a letter requesting
recognition to which it had received no response as of
February 21, when it filed its petition - from which lack
of response it might well assume that the Respondent
would not recognize it without an election The Union
subsequently received Respondent's letter of February 21
stating that it would recognize the Union when "Local
No. 185 has been certified as such by the National Labor
Relations Board following a secret election. Accordingly
at the time of the conversation between Cowan and
Holmes not only might the Union reasonably assume
Respondent would not recognize it without an election but
"Named by Respondent in its brief as a General Counsel witness was
Violet Williams who actually testified as a Respondent witness I assume
that Violet Warn-rack who was also named and who was a General Counsel
witness was intended Other witnesses named by Respondent in this
connection were Dale Standridge, Jerry Phillips, Mary Garcia, and
Kenneth Stokes Their testimony relative thereto will be considered post.
"Dale Standndge, Jerry Phillips, and Kenneth Stokes
T. M. DUCHE NUT CO., INC. 463
it presumably was then in receipt of Respondent's
assertion that it would not do so. Under such
circumstances I consider that it would be an exercise in
semantics to debate who required the election because
there is no question that Respondent did so insist in its
letter. Accordingly I conclude Cowan's statement to be
one he might reasonably make and in any event is not
evidence of falsification.
With respect to Respondent's allegation concerning a
conflict in testimony between Cowan and Hodge as to
who contacted whom, the record reflects that Cowan
testified "Well on the 13th of January I was contacted by
Robert Hodge. We talked to each other on the telephone
and I agreed to go to Orland to meet this Robert Hodge."
Hodge testified that the first time he met Cowan was at
the King Dollar station following a telephone call from
Cowan to meet him at the station. Hodge explained that
some fellow he didn't know told him Cowan wanted to
meet someone from Duche's and talk to him and that
Hodge said "Sure let him call me up." Hodge said Cowan
called him first. Whether or not this too involves a
question of the use of the word "contact" with Hodge
indicating to Cowan through the unknown person that he,
Hodge, was available or the more normal one of who
directly contacted whom may arguably be debatable.
However, even assuming the customary use of the word
"contact" and accepting Hodge's version of the origin,
was Cowan's testimony deliberately false or a failure of
recollection? In evaluating this, what purpose would there
be in a deliberate false statement on his part on what
appears to have no particular significance? Under the
circumstances and accepting Hodge's testimony, it would
appear more likely that Cowan's testimony was-either a
result of miscontruction of the word "contact" or one of
recollection. In any event, I do not consider this item
sufficient to discredit Cowan as to more significant
aspects of his testimony which will be evaluated hereafter.
With respect to Respondent's contentions as to what
Cowan allegedly said concerning an election, examination
of the testimony relative thereto by witnesses named by
Respondent appears to be in order First, it should be
noted that Respondent's brief lumps together various
statements relating to an election when it states therein
"no less than five witnesses, including Violet Williams.
[sic]1e General Gounsel's witness, testified that Mr. Cowan
did say that there could or would be an election."
Respondent here uses the words "could" and "would" as
if their meaning and significance were identical -- which
they are not. However, no matter whose view - the
Board's or that of some courts" is considered the mere
reference to the word "election" is not decisive. In some
contexts and usages it does not affect the validity of an
authorization or designation of a Union as
collective-bargaining representative. In others it may do
so. To the extent there may be different interpretations
among the Board and the Courts these appear to rest on
the significance attached to (1) the wording of the
authorization cards and (2) representations relative thereto
and to an election in the light of the cards and the entire
context. The mere reference to "election" in any context
does not per se invalidate an otherwise valid authorization
card. Used in conjunction with certain representations and
references the word "election" has been held not to
invalidate otherwise valid authorizations of designations
while in other instances it may have such effect.20
"Apparently refers to Violet Warmack. See discussion, supra
"See Cumberland Shoe , 144 NLRB 1268, enfd 3511 F.2d 482 (C.A. 6),
First as to the testimony of Violet Warmack set forth
in detail, supra , she said Cowan had told her if the Union
got enough card signers they could present the cards to
the Company and then negotiate . Warmack stated that in
response to a question by her Cowan said , "If the
company did not accept the union , then there could be an
election." (Emphasis supplied .) In this context the
reference to an election does not detract from the
authorization and no case has been cited that so holds.
Dale Standridge who was an inventory foreman , called
as a witness by Respondent , testified he was at the
meeting of employees at the B & B Cafe in January 1967,
previously set forth , that cards were passed out and he
signed one, which was not offered apparently since he was
ineligible as a supervisor. Standridge testified on direct
examination by Respondent that Cowan said:
A. Well, he said he would like us to sign the cards,
well, for one thing, if the company should go back on
one of us, lay us off, that if we would sign the cards
they would back us up , and if the Union should go in
that we would get back pay, get our job back, and that
eventually it would lead to a vote if there were enough
cards signed.
On cross-examination he testified that Cowan said a lot
of things and that they talked about an hour and a half.
He also testified:
Q. He mentioned something about the Union's desire
to negotiate with the Company, didn't he?
A. Yes.
Q. He mentioned that he would approach the
Company as a representative of the Union, didn't he?
A. I believe so.
He further testified.
Q. (By Mr. Silbert) Mr. Standridge, isn't it true that
Mr. Cowan told you that if a majority of the employees
signed these cards the Union would approach the
Company and ask to negotiate on behalf of the
employees?
A It was my understanding there would be a vote.
Q. Mr. Standridge, we are interested not in your
understanding but what Mr. Cowan -
MR. CONNORS: I think he is harassing the witness.
We are interested in his understanding.
THE WITNESS. My memory is not that good.
MR. SILBERT: It is possible he could have said that?
THE WITNESS: He could have said that.
Q. (By Mr. Silbert) Mr, Cowan never told you that
the only reason for signing these cards was for, your
protection?
A. That, and it would lead to a vote,
Q. He didn't tell you those were the only reasons you
were signing the card, did he?
A. I can't say for sure but I do know that was the
main one he told us.
The foregoing indicates a repeated reference by the
witness to a vote21 as the matter recalled by the witness
and a tack of, recollection of much else although on
cross-examination he recalled something about negotiating
U. A. W v. NLRB., 373 F.2d 671, enfg . 158 NLRB 322. Bishop &
Malco, 159 NLRB 1159. Henry I. Siegel, 165 NLRB No. 56; Cf
N.L.R B., v. Swan Super Cleaners , 384 F 2d 609 (C.A. 6), N L.R.B v.
Nichols Co., 380 F.2d 438 (C.A. 2), Crawford Mfg Co. v N.L R B., 386
F.2d 367 (C A 4); Engineers & Fabricators , Inc v N.L R B, 376 F.2d
482 (C.A 5).
"See fn. 19
"But not the only or sole purpose for signing the card
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and approaching the Company as a representative of the
Union. This testimony will be compared with that of other
witnesses to be considered.
Jerry Phillips called by Respondent also testified he
attended the meeting at the B & B Cafe and that Cowan
talked to them. Phillips testified on direct examination:
MR. CONNORS• Tell us, to the best of your
recollection, what he said?
THE WITNESS: That we would have if we would
sign a card that they would - if something came up
with our job, you know, got laid off or something, he
would stand behind us, and if 50 per cent of the people
would sign, they would have another meeting and tell
us more about it. That is about all.
Q. (By Mr. Connors) Did he say anything about an
election?
A. Yes, there would be an election, he said.
On cross-examination he testified:
Q. (By Mr. Silbert) Did Mr. Cowan tell you the only
reason you signed the card was to have an election?
A. Not the only reason, no.
Q. In fact, he mentioned something about
approaching the company and negotiating with the
company, didn't he?
A. I don't really remember.
Q. But it is possible he said that also, isn't it?
A. Yes.
Q. Did you read the card before you signed it'
A. Yes, I read some of it.
On questioning by the Trial Examiner, Phillips stated-
TX Mr. Phillips, you read [heard] something to the
effect that if they got more than 50 per cent there
would be another meeting or meetings?
W: Another meeting, yes.
TX: Another meeting of whom?
W. Employees.
TX Was there anything said about meeting with the
Company if they got 50 per cent?
W. I don't remember exactly whether there was or
not.
TX: Now, when you signed the card, what was your
understanding of what the effect of your signing would
be'
W: Well, I thought if I would sign the card, the way
I understood it, well, they would have another meeting
to tell more about the Union and that - they said if
anything happened, well, they would stand behind us.
TX. Was that your understanding when you signed
the card?
W: Yes.
TX- Did you read the card first?
W: I read part of it. We was in quite a bit of a
hurry, and I didn't read the complete card.
On questioning by counsel for the Charging Party he
said:
Q. (By Mr. Panattoni) Yes, I will restate the
question. At the time of this meeting, wasn't it your
understanding that after 50 per cent of the employees
signed up there would be another meeting of the
employees to find out what kind of things you were
going to ask your employer to change or improve?
A. My understanding was that after 50 percent of the
cards were filled out that we would have another
meeting and they was supposed to tell us more of what
they could do, and then we was going to have a vote.
Kenneth Stokes apparently also a supervisor, called by
Respondent, testified that he attended the meeting at the
B & B Cafe, and signed a card about January 21, 1967.
He testified Cowan asked the employees present to sign
cards, and said:
A. That the cards was to represent - and in case
they had enough cards signed to represent the people, if
they had a certain majority of the cards, that they
would have an election.
Q. Do you remember anything else he said about the
cards? -
A. Well, he said that we would have a right to vote if
there was an election, and the question was brought up
about plant persecution or whatever you call it, and he
said anyone that was at the meeting or anybody that
had signed the card that they would see that they got
proper representation if persecution should occur.
On cross-examination in response to questions from the
General Counsel, Stokes testified that Cowan or Union
Representative Brickell who also was present told the
employees the Union might be able to get them more
benefits Stokes then testified:
Q. And one of them mentioned also, didn't they, that
they would attempt to negotiate with the employer
about these benefits?
A. Yes
Q. As a matter of fact, Mr. Stokes, they said that if
a majority of the employees signed cards they would
approach the employees about negotiating these
benefits?
A I believe so.
On further redirect examination Stokes was asked by
Respondent counsel:
Q. (By Mr. Connors) Mr. Stokes, what I wanted to
ask you was, when you signed that card over at the
B&B Grill, what was your state of mind as to what was
going to happen?
This question was objected to and after argument the
objection was overruled and Stokes replied:
W: My own personal state of mind of signing the
card meant that if a certain number of cards were
signed that there would be an election of the employees
at Duche's.
A motion to strike was thereupon denied essentially for
the reason that in view of the various representations set
forth testified to by the witness, there appeared to be
ambiguity as to motivation in signing the card.
However, thereafter the following occurred.
MR. CONNORS: I wonder while the recess is on if
you could find the last answer of the witness, Miss
Reporter.
(Short recess.)
TX: I have denied whatever motion there was and I
want the last answer to stand.
Q. (By Mr. Connors) Did you hear your last answer
read back?
A. Yes.
Q. Is that or is that not what you were told by Mr.
Cowan?
Objection to the question was overruled and the witness
replied:
W: That is what we was told, right.
The Trial Examiner subsequently initiated a question
with response as follows-
TX: I am going to ask the witness one question right
now: What were you told, in your own language?
T. M. DUCHE NUT CO., INC. 465
MR. CONNORS: By whom?
TX, By Mr. Cowan at this meeting.
W: Well, I don't recall the exact words, but I wasn't
personally told anything by Mr. Cowan.
We was addressed as a group and it was explained to
us that if there was enough people interested in
organization of a union at this plant that we would
show so by signing cards, and it was also explained that
if there was enough cards signed that they would
approach the management of the plant for bargaining,
and if not recognized that there would be an election
which would be ruled by the Labor Board [Emphasis
supplied.]
Another witness Ivan Leach called by Respondent was
among those whom Cowan testified he had solicited for
the Union. Leach testified that he signed a card and that
he, Jean Embrey, George Embrey, and George Stokes
signed together. Leach said that he wasn't sure if a union
representative was present because "we had been drinking
quite a bit." When asked if he was drunk, he replied:
"Well I have been drunker." He was then asked "In your
own opinion were you in full possession of your
faculties`"' Leach responded, "I would say I knew more or
less what I was doing, yes." Leach was asked if he had
read the card and answered "No, I knew what it was
about. I signed it I didn't see no point in reading it." In
response to "how did he know9" Leach said there was
talk "between a few fellows, groups, you know.
Leach was asked what was said and replied: "They said to
give the union authorization. I more or less thought it was
to hold an election."
The Trial Examiner then asked, "What were you told
by whoever told you?"
THE WrrNESS: He said: "Just sign the card and if
they get a majority vote they will bring it over and
present it to Mr. O'Neill and he can either go for it or
not and if not they will have an election." [Emphasis
supplied]
Leach said he couldn't single out who told him this -
that it was just in the group.
Mary Garcia, called by Respondent, testified she signed
a card at Cowan's request February 11 (after the demand
for recognition was made). She testified Cowan told her:
A. He told me that a majority of the women had
already signed this card, and that if I signed the card
that I was in obligation in no way and that I could
withdraw any time I wanted to.
* * * * *
Q. What did you understand when he said you were
not obligated in any way?
* * * *
Q. (By Mr. Connors) Did you have any particular
understanding of that?
A. Well, the way I understood it, is that if I wanted
to vote I could vote either way.
The foregoing relates to two aspects of Cowan's
testimony - one of credibility on a tangential matter -
whether or not he told employees signing a card would
afford union protection and the other whether or not he
assured t hem that an election would be held or ,made such
references to an election as to invalidate the cards.
Relative to the first aspect Cowan testified as follows.
Q. Did you tell Mr Standridge at that time, at the
B&B Cafe, that the reason you wanted these people to
sign cards would be that they would be protected if the
company discharged them or took any disciplinary
action against them?
W• No, I do not believe I did tell him if he signed a
card he would have some protection, or whatever it was
you stated.
Q. (By Mr. Connors) All right. Did you tell anybody
the reason you wanted them to sign cards was so they
would be protected in the event the company took any
disciplinary action against them?
A. No, sir, my statement was to the employees that I
discussed was that I was seeking to organize the Duche
employees and that by signing the authorization card
would give us, if possible, a majority. I don't recall at
this time of making any other comments.
Without endeavoring to be'unduly technical in analysis,
it should be noted the answer was made in response to a
question directed to "the reason" rather than "a reason"
and concludes with "I don't recall making any other
comments." The testimony of Standridge, Phillips, and
Stokes referred to by Respondent and set forth above does
indicate that Cowan did refer to the signing of the cards
giving them some union protection. I credit their
testimony in this respect. It should be noted that such is
an argument often presented in connection with
organizational activities. I also would point out both here
and in my subsequent analysis of the testimony with
reference to statements relative to an election, that
practically all of the witnesses testified as to recollection
of only a small part of what occurred during a fairly
lengthy meeting.22
This necessarily poses the problem of how much stated
testimony was accurately placed or set forth in relation to
the whole as well as how much denied or omitted
testimony was deliberate, inadvertent or due to lack of
recollection. Whatever the reason for Cowan's denial of
recollection as to any statements relative to the signing' of
cards for protection against disciplinary action, I do not
consider it bears decisive weight on material matters. Here
again it would appear to serve no substantial purpose or
objective to deliberately fail to recollect such a statement.
I consider the alleged material matters can best be
evaluated by analyzing the record as to them.
Accordingly, I shall make a conclusionary analysis of
the testimony of the "no less than five persons" whom
Respondent" claims testified that Cowan said "there
could or would be an election" along with the testimony
of Cowan. This reflects the following: Cowan testified that
he did not say that he wanted the cards for an election,
and he denied telling anyone that if enough signed cards
they could have an election. Cowan also testified that
from time to time an election was mentioned by people he
spoke to who knew about a prior election at Duche and
who asked if there would be another to which he had
responded (as set forth supra) he didn't know as they
were only seeking authorization to approach the Company
for recognition.
"Testimony of Dale Standridge, supra , indicated it lasted about an hour
and a half.
"Respondent, as set forth, also referred to Cowan's solicitation of Violet
Willimas, who signed a card dated February 11, which was not offered in
evidence. Her testimony, in substance , was that Cowan solicited her
signature about February 11 at a time when she had company According
to Williams, she asked Cowan if it was something to make her join the
Union, and he said "Absolutely -not, you are under no obligation
whatsoever." She said "In other words I am not obligated to vote any
way" and Cowan answered , "Right" According to Williams, Cowan also
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of the witnesses referred to by Respondent, Violet
Warmack, who (actually) testified for the General
Counsel, denied that she ever told anybody there might be
an election, and as set forth previously, testified first that
Cowan told her that if the Union could get enough signers
they could present the cards to and negotiate with the
Company. Warmack testified further that Cowan then
told her in response to a question from her, "if the
company did not accept the Union then there could be an
election."
The testimony of Respondent witnesses Standridge,
Phillips, and Stokes with regard to the discussion that
occurred at the B & B Cafe has been set forth, supra. As
indicated therein, this represents only a partial- statement
of what was said at that meeting. Not only is this true in
the case of Standridge and Phillips but in addition neither
witness said that Cowan told them that the cards were
only for an election. The record further definitely reflects
their inability to recall much of what was said, although
Standridge did say he recalled Cowan mentioning
something about negotiating and approaching the
Company as a representative of the Union.
'Finally, as most persuasive concerning what occurred at
the meeting was the testimony elicited from Kenneth
Stokes. This has been set forth in detail to illustrate his
entire testimony which initially appeared to indicate that
he had been told the cards were for an election, then to
reflect that he also was told about the cards being used for
authorization and recognition purposes and then again
testimony with respect to being told about their use for an
election. The foregoing represents testimony elicited by
respective counsel and the witnesses' responses. However,
finally in response to -a direct question from the Trial
Examiner, set forth above, to expressly tell what was said
in his own words, Stokes, as set forth, stated that he had
been told "if there was enough cards signed, that they
would approach the management of the plant for
bargaining and if not recognized that there would be an
election which would be ruled by the Labor Board."
(Emphasis supplied.) This latter testimony by Respondent
witness, Kenneth Stokes, reflects substantial support for
the testimony of Cowan as to what was, said at the
meetings with regard to the obtaining of authorization
cards and proceeding to seek recognition from the
Company. Furthermore, in any event, it represents a
proper statement, which would in no way negate the
validity of the cards, - namely, to seek recognition on
the base of the signed cards and if recognition were not
forthcoming from the Respondent, then to have an
election.
The testimony of Respondent witness, Ivan Leach, set
forth, supra, in essence is similar in its conclusion to that
of Stokes - that he was told (by someone) "Just sign the
card, and if they get a majority vote they will bring it to
Mr. O'Neill and he can either go for it or not and if not
they will have an election." (Emphasis supplied.)
On the basis of analysis of the foregoing, without
reference to Garcia's testimony which I will consider
shortly, it appears that Cowan's testimony is essentially
substantiated not only by General Counsel witnesses but
also by Respondent witnesses and that no references were
said concerning the card "something like giving them the right to talk to
us" so she signed it but didn't read it thoroughly She said that she wasn't
interested and when asked whether he said "he had a right to talk for you"
replied, "He might have As I say, I had quite a lot of company that day "
I conclude that the circumstances indicate a witness somewhat indifferent
to the card who was busy at the time she signed.
made to an election which would in any way nullify or
invalidate the cards. This is supported not only by
Cowan's testimony but also by the aforesaid testimony of
Respondent witnesses Kenneth Stokes and Ivan Leach. In
fact, even the testimony of the other Respondent witnesses
whose statements obviously were incomplete and failed to
set forth more than a fragment of the conversations taken
out of context do not negate this finding - this latter
testimony of witnesses such as Standridge and Phillips is,
as previously indicated, pointed toward remembrance of
an "election" but with little else definitely recalled. Even
they did not say that the card was only for an election. I
conclude that there is no substantial evidence to justify or
support a conclusion that the cards were signed because of
or on the basis of a promise of an election. Rather, I find
and conclude that any references to an election were in
connection with a situation that might arise in the event
the Company first refused to recognize the Union on the
basis of its authorization cards from the employees.
With respect to the testimony of Mary Garcia, first it
should be noted that the conversation occurred on
February 11 after a request had been made to the
employer to bargain with the Union. This was prior to the
employer's refusal to recognize the Union. According to
Garcia, she had been told that a majority had signed,
(which apparently was true) and that if she signed, she
was under "no obligation" and could withdraw any time
she wanted to. The record indicates nothing to the
contrary - whatever was meant by "no obligation."
Garcia was asked what she understood when "he said you
were not obligated." Garcia said that she understood that
if she wanted to vote, she could vote either way The latter
is a possible but not necessarily customary understanding
of the statement about "no obligation," although it may
bear on with what intent she signed the card. Were her
card one of those to be considered, conceivably an
argument might be presented and considered as to its
validity. However, in this instance, resolution of such
would serve no purpose since the card was not offered as
it was signed February 11 after the demand was made.
Whatever Mary Garcia's individual interpretation of the
word "obligation" might be, it does not support a
conclusion that Cowan told her or anybody else that there
would be an election.
Based upon the foregoing, I find and conclude that the
cards introduced in evidence as obtained by William
Cowan, which are referred to in the footnote below, 14 were
all valid designations on behalf of the Union. Is
With respect to other cards that were obtained, these
will be discussed hereafter and particularly those
concerning which a question has been raised by
Respondent.
Nyla Standridge called by Respondent testified that
Holmes came to her house and told her that he thought the
Union would be able to help them and that she did not
recall anthing else. Standridge said she read the card
"These consist of cards opposite numbers 1 through 14 and 16 through
18 on Appendix B hereto (GC 6 through 13, GC 15 through 20 and GC 22
and 23.) Also included are cards no 19 and 20 on Appendix B, GC 25 and
26 obtained jointly with William Holmes whose testimony relative to and
the admissibility of other cards obtained by him is discussed hereafter
Card no. 15 on Appendix B, GC 21 that of Margarita Dominguez is
considered separately hereafter
"In reaching this conclusion I have also considered the testimony of
those referred to by Respondent in its brief as "disciples" of Cowan
including Holmes discussed post as well as all testimony in the record
concerning the signing of cards of which certain additional specific
testimony is set forth and analyzed hereafter
T. M. DUCHE NUT CO., INC.
before she signed it. She was then asked, "Did Mr.
Holmes say anything to you about an election'" She
responded, "It was my understanding if he didn't I
thought lie did as I say I just don't recall for sure." She
was then asked by the Trial Examiner, "Did he use the
word 'election'?" She replied, "I believe he did, or voting
- it was either election or voting." Question: "What did
he say?" The Witness: "I don't know exactly. It has been
too long ago. My recall is not that good "
Patricia Butler, apparently subpoenaed by the General
Counsel, but called as a witness by Respondent, testified
that Holmes told her, "'If we get enough signers on here
- we need 51 per cent,' I believe, 'and we can have an
election.' " Butler then testified on another occasion
Holmes said to her "We hope we can get a majority."
She replied, "Is this going to obligate us in any way or
will anybody know we signed those cards?" Holmes said,
"No, this is a secret." She then added that Holmes said
that these cards would be given to a National Labor
Relations man and that after a certain length of time they
would be destroyed; that they were just to see if we could
get a majority so we could have an election Butler then
referred to her soliciting other employees to sign and that
Holmes had asked her to talk to Mildred Powell. Butler
said she went to Mildred Powell, explained the Union was
trying to come in, and said, "Mildred, if you sign this
card, all this is is giving the Union the right to come in
and negotiate, it does not mean we are voting for or
against the Union." Butler also took two cards to Mary
Zaragosa and to Josephine Cesa, pursuant to Holmes'
request. She spoke to them together and "I told them that
the Union was trying to come in ...." Butler also told
them about the benefits the Union thought they could get.
She was then asked-
Q. Now do you recall anything else you told these
two ladies?
A. I told them that they needed a majority of the
girls at the plant.
Q. For what purposes?
A. To sign these cards so the Union could come in
and negotiate.
Q. Did you say anything to these two girls about an
election?
A. Yes, I told them that Bill had told me there
would be an election and we could vote any way we
wanted to. This card did not obligate us in any way.
With respect to the testimony of Mildred Powell whose
card will be considered hereafter, Butler who gave her the
card testified that she had heard Powell's testimony but
denied that she said anything to Mrs. Powell about a
meeting that the Union was having.
A consideration of testimony of other persons who
obtained cards may be in order. Ivan Leach who was
previously referred to as having been solicited by Cowan
at a time when he (Leach) had been drinking, further
testified he obtained cards from two other persons,
Elizabeth Siemens and his sister, Martha Powell, whom
he asked to sign a card. Leach said he couldn't remember
what he said to her at the time and he could not recall
whether lie told her that by signing she authorized Local
185 to represent her. Leach also said that he believed that
he mentioned the word "election" but that was the extent
of his recollection. Leach could not recall what he said to
Elizabeth Siemens and stated that his condition at the
time he requested her to sign was somewhat worse with
respect to sobriety.
According to Elizabeth Siemens, Leach brought the
card to her house and said to her, " ' If you sign the card,
467
whatever how much they get together that they
would see what that would be - and then he said we
would be in no way obligated." Siemens said that she
could not recall anything else, that she read and signed the
card but did not pay too much attention to it. She was
asked what she understood by the words "No obligation"
and responded, "Well that there was -- well, I mean that
I was not - well, that I that it just didn't mean that I
would join the Union that we would have an election later
on and that we could that we had the right to vote
either way."24 Martha Powell testified that Leach asked
her to sign the card; that he told her that about 95 to 96
percent of the people had signed and she should sign, that
she wouldn't be "under any obligation". . She was
asked if she read the card and replied that she glanced at
it and read part of it but there was nothing in there "that
I seen where I would be obligated to anything".
Alice Embrey, a witness for the General Counsel,
testified that she obtained cards from her brother-in-law
Kenneth Embrey and also one from Kenneth Stokes; that
she herself signed a card; that she obtained signed cards
from Olive Thomas, Viola Williams, Francis Schluneger
and Ina Chastain whose cards were received in evidence.
Embrey testified that the cards of Chastain, Thomas, and
Schluneger were signed in her presence after they had
looked at the card. She said that she did not say anything
about an election to any of the people who signed cards.
She was asked by Respondent counsel on
cross-examination, "Did you think that at any time that
as a result of signing these cards there would be an
election held by the Labor Board? Answer "No, I
didn't." She was also asked by Respondent counsel:
Q. What did you tell people when you asked them to
sign this card?
A. I told them the Union was thinking about coming
in and they would have to have. signers to see if it was
favorable.
Q. See if what was favorable?
A. If the Union could see if they could get together
to come in
Viola Williams testified that Alice Embrey obtained a
card at her request but did not ask her to sign it and that
she signed it on her own without solicitation.
Glenda Rolfs testified that she obtained authorization
cards from Verna O'Hair, Zelma O,'Hair, Carmen
Gomez, Elizabeth Browning, Cecilia Torres, and Carrie
Andrews. The cards of Verna O'Hair, Zelma O'Hair, and
Elizabeth Browning were signed by them in her presence.
The cards of Carmen Gomez and Carrie Andrews were
signed in the presence of Zelma O'Hair who returned
them to Rolfs.2' As for Cecilia Torres, Rolfs gave her a
card which she subsequently returned to Rolfs Rolfs
stated that she obtained the cards from Kenneth Stokes.
She was asked:
Q. Did Mr. Stokes say to you that he wanted the
cards signed so that there could be an election?
A. No, I don't remember.
Rolfs was asked whether she heard any talk at all
about an election before she saw the election signs and
answered "no". She was asked after she saw the signs did
she go to Mr. Stokes and ask why there was going to be
an election. Rolfs responded, "No I knew that from the
"Cf. the testimony of Mary Garcia, supra
"They were authenticated through Zelma O'Hair whom it was stipulated
when she was called as a witness would ' testify that she obtained these
cards which were signed in her presence by'Andrews and Gomez on the
dates therein.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election 2 years ago that if the Union and the Company
couldn't come to an agreement that there would be an
election." Rolfs said she didn't have any idea there was
going to be an election one way or the other. Francis
Schluneger called as a witness by the Respondent testified
that she signed a card at her home while she was talking
to Alice Embrey. Schluneger read the card before she
signed it voluntarily without being asked to sign it It was
explained to her "that this was to form a Union, organize
a union " She was asked:
Q. Was anything said to you about an election?
A. There was not.
Stella Satterfield testified that she got a card from Pat
Butler which she signed; that Butler told her to guard it
with her life and not let anyone at the plant get hold of it
but did not say anything else. Satterfield said that Butler
did not say anything to her about signing the card so that
there would be an election. Satterfield signed the card
later, gave it to Violet Warmack and asked her whether
they were going to have another election like they did
before. Warmack replied, "No that they were trying to
get a majority so the union could negotiate with Duche."
Satterfield also said that she obtained a card from Doris
McIntire which was signed in her presence.
Mildred Powell testified that she signed a card about
January 31, filled in the "other information", but did not
read it. She said she was talking at the time and just
wrote it and "plopped it down on the table."
On cross-examination, Powell testified nobody actually
asked her to sign it; that Pat Butler came to her and they
were talking and she said to Butler "What is it?" Powell
was asked "Question: What did she say?" "Answer: She
said , `It just means it gives the Union the right to come in
and talk to us' And I said `Where?' and she said, `Well
that Bill had told her that that was what it was and that it
was going to be at the Fairgrounds.' " (The reference was
to Bill Holmes .) Powell then testified that Butler told her
"that is one of those cards that gives the Union the right
to come in and talk to us." Powell said "Is that all?" to
which Butler 'replied "yes." Powell further testified as
follows:
Q. When you signed this card which was General
Counsel's exhibit 71 did you think that all you were
agreeing to was to listen to this man at the fairgrounds`'
Objection. Overruled.
A. Yes.
On redirect examination, Powell first said she did not
remember when she received a letter from the Union
informing her about a meeting at the fairgrounds, then she
testified that she thought it was after she signed the card
and subsequently that she really didn't know but imagined
it was after she signed a card. Powell repeated that Butler
told her she was signing a card so the Union could speak
to her at the fairgrounds At still another point under
questioning by the Trial Examiner, Powell again stated
referring to Butler: "And she said `Well the way I
understand it's just so that we can go and hear that guy
talk.' " Trial Examiner "At the fairgrounds?" The
Witness: "Yes." Powell further testified that she read the
printed material but that she didn't read the part which
said "Hereby authorize Local Union No." Butler, as
previously set forth, testified she told Powell that in
signing the card "all this is is giving the Union the right
to come in and negotiate. " As was noted by the
General Counsel in his brief, the Trial Examiner not only
moved from one side of the bench to the'other (which was
circular) to observe the witness ( as in all cases) but in
addition had stepped down to watch this particular witness
closely for the reason that the testimony appeared to
illustrate some confusion on the part of the witness
concerning the circumstances attendant to signing the
card. Actually the record indicates that at the time of the
card signing by Powell on January 31 the meeting at the
fairgrounds had not even been scheduled." In my
judgment Mildred Powell signed a card without clearly
understanding or comprehending what it's ultimate
significance was. I note that this latter could raise a
question as to its validity although the Board has held that
the signing of a card is sufficient" unless it can be shown
that there was such misrepresentation or circumstances as
to mislead the signer. I do not find such occurred nor do I
find,that Powell was told that the signing of the card was
so she could hear the man at the fairground. I reach this
conclusion from Butler's testimony as to her conversation
with Powell, evidence that no such meeting was in
contemplation at the time, that such statement was not
made to anyone else, that it is not one ordinarily used or
logically expected to be used3° and finally from the
confusion on the witness' part manifested by her
testimony. Although I consider that there may be a
question as to the validity of Powell's card, I conclude
that under existing Board precedent it is valid and
accordingly I so find."
Cecilia Torres testified that she signed a card after
Glenda Rolfs brought it to her home. In response to a
question as to what Rolfs said to her, she testified on
cross-examination:
She said to sign that card and there was something
about the Union which I did not understand too much
about and she said that we would vote on it.
Q. Was it your understanding that when you signed
the card there would be some sort of an election?
A. Yes.
Torres was again asked what was said to the best of her
recollection. She answered, "That is about all. That there
would be an election and we would vote on the union."
Torres was asked whether she recalled if anything was
said about the Union negotiating with the Company. She
responded, "I don't remember."
The foregoing raises some question about Cecilia
Torres' card. While the testimony does not amount to a
statement that the sole purpose of signing the card was to
have an election, the only item she could recall was that
there was to be an election. Further, it could be inferred,
as she testified was her understanding, that there was to
be an election. Moreover, it may be argued that this was
the basis for her signing the card. I find it unnecessary to
resolve this since in evaluating the cards I will not
consider Torres' as it will not affect the result.
I have previously found that the cards obtained by
Cowan were valid except I reserved consideration of the
card of Margarita Dominguez. She had originally signed a
card in the presence of her husband and Holmes. Since
the signatures were not' too clear, her husband had
"According to testimony of Cowan the meeting at the Fairgrounds was
on March I I which was some, weeks after the petition was filed.
"As set forth although Powell denied reading it she admitted she filled it
in and signed it.
" I note that such was specifically found by the court to have been said
to a card signer in N.L R.B v Dan Howard, 390 F 2d 304, and the court
there accordingly rejected the card However, as set forth, I have found for
reasons enumerated that such a statement was not made to Mildred Powell
herein
"See cases cited fn 19
T. M. DUCHE NUT CO., INC.
subsequently resigned for himself and had signed her
name again. Obviously, the testimony indicates that there
was a valid card signed by Margarita Dominguez and that
her husband had simply replaced the earlier card. There is
no showing of any contrary intervening intent on-her part.
I consider that the reexecution by Consuelo Dominguez
for his wife, under these circumstances, is sufficient to
validate the card, based on the authority originally given
when she signed the first card. The destruction of the
earlier card would not invalidate the authority given by
the card unless such was at her instance with her
approval In support of its validity see Peterson Bros., 144
NLRB 679. In any event even were it not considered
valid, it would not affect the majority as will appear
hereafter. The card of Ivan Wilson, previously discussed,
signed by his daughter at his direction in the presence of
Holmes is clearly valid. See also Peterson Bros., supra.
With respect to the cards obtained by Holmes (in
addition to those obtained jointly with Cowan, supra)
namely Nos. 24 through 51 on Exhibit B. GC 30 through
57), 1 find these to be valid designations. Nyla Standridge
testimony set forth, supra, reflects a lack of recollection as
to what Holmes said but in no way invalidates her card or
any other. Butler's testimony, supra, concerning what
Holmes told her, refers to needing 51 percent and "we can
have an election." (Emphasis supplied.) This latter, as
indicated, uses the word "can" and appears to be both
vague and ambiguous. Moreover, it should be noted
Butler then testified she told Mildred Powell that "all this
is giving the Union the right to come in and negotiate,
and it does not mean we are voting for or against the
Union." In the case of Mary Zaragosa and Josephine
Cesa, as set forth, Butler testified she told them the
purpose was "to sign these cards so the Union could come
in and negotiate," but when asked if she said anything
about an election said "Yes, I told them that Bill had told
me there would be an election and we could vote anyway
we wanted to." (Emphasis supplied.) Here, in speaking to
Zaragosa and Cesa, Butler testified she told them (1) the
signing of the cards was so the Union could negotiate and
(2) then testified she said there would be an election, while
her direct testimony as to what Holmes told her was that
there "can" be an election. There is admittedly some
confusion involved. If the statements first made were that
there would be an election, then Respondent's argument
that an election was intended first and negotiations would
follow if successful in the election becomes plausible. It
also then might logically be argued that the purpose of
signing was for an election.
However, Holmes' testimony is contra, Cowan's contra
and as set forth bosh Kenneth Stokes, Respondent
witness, Ivan Leach, a Respondent witness, and Violet
Warmack, a General Counsel witness in testifying as to
what Cowan asserted, ultimately supported a sequence of
"obtaining a majority first" then "seek to negotiate" and
"if not obtain recognition" then "have an election." While
Butler refers to obtaining a majority of 51 percent so they
could have an election, it is common knowledge that 51
percent is not necessary to have an election. The reference
to 51 percent, therefore, would not logically support a
conclusion of obtaining that to have an election but rather
one of obtaining 51 percent in order to negotiate I
conclude that Butler either misunderstood Holmes in part
or was confused to some extent as to what she was told by
Holmes. As set forth she first testified as to Holmes
telling her the need to obtain 51 percent so they can have
an election, then as to her telling Mildred Powell that
signing the card was only to give the Union the right to
469
negotiate and did not mean voting for or against it; then
testifying that she told Mary Zaragosa and Josephine
Cesa they needed a majority "to sign these cards so the
Union could come in and negotiate", and finally that she
told them "there would be an election and we would vote
any way we wanted to."
From Butler's testimony in the light of the testimony of
Cowan, Holmes, Warmack, Kenneth Stokes, and Ivan
Leach, I find and conclude that' any reference to an
election that may have occurred followed a reference to
obtaining a majority of cards so the Union could
negotiate. Such cards appear valid under both existing
Board decisions as well as Court cases 3E Even if the
construction and conclusion I have reached as to Butler's
testimony were not followed, her card and those of
Zaragosa and Cesa would be valid under existing Board
decisions Based on all the foregoing, I find valid the
cards of Patricia Butler, Mary Zaragosa and Josephine
Cesa.33 However, in any event, even if they were not
included I would find and conclude that the Union
possessed a majority at all times material. As to all other
cards obtained by Holmes34 as well as those obtained by
Butler, I find them valid.35
With respect to the cards obtained by Leach, I find
them' valid. Elizabeth Siemens testified as to her
"understanding" of the word "obligated." But I do not
consider that such negates the normal effect of signing a
card which is clear in meaning Further the normal
meaning of the word "obligated" does not imply a
representation of an election that would invalidate a card
such as here involved. -
The cards obtained by Alice Embrey are clearly valid
and so also those obtained by or through Glenda Rolfs
with the possible exception of the card of Cecilia Torres.',
The foregoing indicates that of the 69 cards received all
are clearly valid37 with the possible exception of the cards
(of Cecilia Torres which I am not counting) and the cards
of Patricia Butler, Mary Zaragosa, Josephine Cesa, and
Mildred Powell which I also consider to be valid and am
counting. I have previously found these latter to be valid
authorizations. However, even if these and that of
Margarita Dominguez which I have also found a valid
authorization were not counted, the Union had valid
authorization cards of 63 persons which represents a clear
majority of the 118 persons in the unit.38
I accordingly find that at all times material the Union
represented a majority in an appropriate unit.
"See fn. 19-
"I have previously found valid the card of Mildred Powell
"Other than the aforementioned testimony of Butler, which I have
discussed in detail, I note that none of the signers of cards solicited by
Holmes of whom Linda Rolfs, Claude Keller, Joann Holmes, and Nyla
Standridge testified, in any way contradicted the testimony of Holmes as
to what he said when obtaining cards.
"Stella Satterfield signed a card given her by Butler who said nothing
Satterfield asked Violet Warmack about it and Warmack told her they
were trying to get a majority so they could negotiate
"As set forth, supra, I have not resolved the validity of Torres' card as it
will not affect the result.
"These include in addition to those I have 'specifically previously found
valid all other cards received which are listed on Appendix B hereto
"I consider my findings and conclusions with respect to the validity of
all authorization cards found herein to be valid authorizations of the Union
as collective-bargaining representative, to be not only in accord with the
decisions of the Board referred to in footnote 19 but also as being in
accord with the decisions of the courts set forth therein, as well as
practically all other decisions of both the Board and the courts which are
pertinent to the issues
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The unfair labor practices issues
a. The allegations as to threats by Alfred Stokes
The complaint alleges that about February 23, 1967,
Respondent by Alfred Stokes, assistant plant
superintendent, threatened to discharge an employee
because of his union activities and that on about March
10, Stokes told an employee that Respondent would alter
its method of operation and discharge some employees if '
the Union were selected.
Item No. 2 of the Election Objections stated,
"management's threat to discontinue swing shift if
employees voted union thereby creating considerable loss
of jobs contrary to act."_ This would appear to encompass
in part the second alleged threat by Stokes and also in
part certain alleged threats by President O'Neill referred
to hereafter.
William Holmes testified that shortly after the Union
filed a petition he was called out on the wool ramp by
Alfred Stokes" who according to Holmes told him
"Howard O'Neill had information that a man on the
day-shift was going around signing up people for the
Union and when he found out who he was he would be
canned on the spot." According to Holmes at this time he
was the only male employee on the day shift who was
soliciting authorization cards. On cross-examination
Holmes admitted that during the same alleged
conversation Stokes arranged his working schedule and
that of his wife as they desired which was to leave them as
they were. Stokes testified concerning the shift
arrangements as to Holmes and his wife and denied that
he ever told Holmes that he was going to fire him. The
General Counsel makes a substantial point of the fact that
Holmes' testimony was with respect to an unnamed
individual being "canned" without mentioning Holmes.
The General Counsel contends that accordingly Stokes'
answer (by mentioning' Holmes) does not contradict
Holmes' testimony. However, the General Counsel also
relies on Holmes' testimony that he was the only
individual soliciting cards at the time. If this is so, the
implication would appear to be that Holmes was the
individual purportedly referred to who was to be
terminated. It would further appear that Respondent
could properly draw such inference from Holmes'
testimony and that accordingly Stokes' denial that he ever
told Holmes he was going to fire him would in essence
constitute a denial of Holmes' testimony and I so find.
Stokes, in addition, testified that he did not fire anyone
between January 15 and March 20 and that there was
only one discharge or layoff on the night shift for drinking
on the job. He further said that he spoke to Holmes about
the latter's spending too much time on the belts and told
him to spend more time "top side where he belongs".
While the issue is not free from doubt, upon appraisal of
the circumstances including the fact that Holmes
apparently was wandering about so that he could properly
be told to work in a certain location, that the employer
granted his request to leave his and his wife's shifts as
they were, that no one was discharged, and that there is
no other evidence of any direct threat of discharge made
to anyone else because of union activity, I find and
conclude that the alleged threat to "can" somebody for
union organizing work was not made as stated.
Violet Warmack testified that she asked Stokes when
the season would end and according to her Stokes replied:
"An admitted supervisor of Respondent.
He said he wasn't sure when he would finish, and I
told him I had, heard that they was going to have to
work year-round if we went union, and he said yes, this
was the only way they- could make it pay is to go
year-round basis, and he also said that they had been
looking up the women's seniority, the amount of years
they had worked, and I asked him if he recalled how
many years my mother had worked, if it was 23 or 25
years, and he said he thought it was 23 or 25 years, and
he said that if the union got in they would have to get
rid of some of the people, the older people that couldn't
carry their weight around there, that this is where the
family ties would be broken.
This conversation was not denied by Alfred Stokes and I
find that it occurred as stated and to constitute a threat of
reprisal in violation of Section 8(a)(1) of the Act. Its
additional significance and import will be further seen,
post, in connection with an analysis of the testimony of
President O'Neill and the allegations relative thereto
b. The alleged threat s made by President Howard
O'Neill
On March 15 and 16, prior to the election of March 17,
President Howard O'Neill made a series of seven speeches
to groups of employees varying in number from about 10
to 17 In connection with these I will first refer to
O'Neill's version of the speeches or talks and then to the
testimony of various witnesses relative to what he
purportedly said to the extent that their testimony either
supports, varies from, or contradicts his statements. In
evaluating this I recognize that there may have been some
variations at different meetings although according to
O'Neill his talks were based on notes which had been
cleared With his attorney. While the precise statements
were not always identical, the general purport of the
remarks according to O'Neill's testimony was intended to
be similar. Respondent contends that everything O'Neill
said was protected by Section 8(c) of the Act. The
General Counsel contends that certain statements went
beyond the protection of Section 8(c) and were threatening
or coercive in nature. Respondent attempted to introduce
evidence concerning the state of ' mind of numerous
individual employees as to whether they felt threatened or
coerced. The Trial Examiner sustained objections to a
series of questions designed to elicit such information,
which were propounded to various witnesses, for the
reason that the effect of statements or utterances is a
conclusion to be drawn by the Examiner and the Board
based on such statements and utterances and attendant
circumstances.
O'Neill testified that the business, that of processing
and shipping almonds and walnuts, was seasonal with a
normal cycle running from late August to early September
to a maximum in late January or early February with a
season ending in April or May, that the maximum
employment was 180 to 200 and the permanent number of
employees about 30. He said that there were 3 shifts
during the season although the graveyard shift was much
smaller than the others.
O'Neill prefaced his remarks to the employees by
stating that he did not intend to make any threats or
promises. O'Neill said he spoke to the employees against
a background of rumors that "the plant was going on
strike", and he assured them that any rumors of job loss
were unfounded, that there would be an election and they
had the right to think and vote as they pleased. O'Neill
T. M. DUCHE NUT CO., INC.
testified he also told them that he was distressed that
some of them felt that they needed a uman, and further
that he did not intend to make threats or promises and if
anyone so construed his remarks they should stop him and
say so. O'Neill then discussed the unemployment benefits
that the people had enjoyed in the past years by only
working on a seasonal basis. According to O'Neill he told
the employees that the total employment insurance
enjoyed by the people of Duche the season before
approached $90,000 and that this amount of money added
nearly $1 an hour to their income, which was tax free. Be
said he told them the Company was paying the highest
amount the industry could pay to support this but it was
not completely necessary because the other nut companies
were operating for the most part on a single day shift so
they could qualify employees on a year-round basis and be
able to give them certain benefits that Duche could not
afford. O'Neill testified further "I refer to certain health
benefits that seasonal employees are not eligible for, the
company will not participate in it unless the company
guarantees he will carry that policy during his off-season,
if we felt we were forced into certain benefits that we
felt we could not afford, we would have to alter our
operation so we could then give these benefits to the
employees on a full-time basis." O'Neill said he reminded
the employees that in the past 12 years they had received
II wage salary increases and only a few months before
had received a substantial increase; that they had received
a gift every year, during the past 12 years every year at
Christmas, that they received the past Christmas as a paid
holiday and had received other benefits such as hams,
turkeys, and pies for both Thanksgiving and Christmas at
Company expense. He mentioned the free coffee the
Company provided which they were not compelled to do,
since in union plants he had visited for the most part there
were vending machines where the employees purchased
coffee.
According to O'Neill, "I told the employees we were
obligated by law to bargain in good faith with the Union
but we were under no obligation with respect to
unreasonable demands and I would take a hard look at
the - I believe the term was used in testimony - that I
would be hard nosed about this - that I would be very
careful not to be in violation of unfair practice but I did
not think the people needed the Union because they had
already received most of the benefits that the Union had
promised or intimated they would get for them"
(Emphasis supplied.)40 O'Neill then said he explained the
criteria for hiring after pointing out that 60 percent of
Respondent's cost was labor; he told the girls it was
difficult because some years the crops were big and others
they were small and it was difficult to pull in some people
without at least being accused of some discrimination
"that we did the best thing possible, in our own judgment,
bringing them in, and releasing them, that the people were
hired on a seasonal basis agreed upon at the start of every
season, but that we would use our best ability to bring
people in as we saw fit." O'Neill said he could not recall
saying anything about if 60 percent of the people walked
out the other 40 percent could work. He could recall a 60
percent figure only as referred to in connection with labor
expense.
O'Neill was asked about loading the truck on the street
which subject had been referred to in testimony of General
"I have emphasized the word unreasonable m view of certain contentions
that will appear subsequently as to the omission of such word from certain
employees' testimony concerning O'Neill's statements.
471
Counsel witnesses. O'Neill answered, "Yes the rumor was
around that the plant would be completely paralyzed
because the union would picket the plant and would not
allow the trucks to come and go. This was a day or two
before the talks so I talked to the city officials and several
of the management of our trucking lines and we received
assurance that we could either load in the street if we
wished or that the interstate haulers would cross the lines
and load the truck and we would not be stopped from
operations." He said the rumors came to his attention
from certain people at different times about the town to
the effect that the plant was going to be on strike and the
union had enough cards to take the people out. O'Neill
told the employees he didn't think they needed a union
and also mentioned that the financial situation reflected
the Company actually showed a loss the year before. He
also said he mentioned about the money that the Union
would get in dues and made certain statements concerning
the use of the revenue that the local union had received.
According to O'Neill some people asked, "Well, we would
like an insurance plan and would this be possible?"
O'Neill testified he responded
And I said that I could not make a committment at
this time, however it was something that could be
explored and looked into at a later date.
O'Neill testified that at one of the talks he was asked why
they couldn't have a suggestion box and "I said there
would be nothing to prevent that." He said another person
wanted to know if they could form a committee
representing all the different shifts in the plant to meet
with management and "I said there would be nothing
wrong with that but I could not make a promise or a
committment at that time." O'Neill was asked
Q. Was any question asked you about change of
operation by way of change of shifts in the plant?
A. Yes. When I made references to the fact that
when we had to qualify people on a 12-month basis we
would have one shift 12 months of the year which
would reduce the total labor force and then I was asked
what would be the deciding factor, who would work,
and I said that probably the best workers from every
shift would be consolidated into one.
On cross-examination O'Neill was asked
Q. Now, can you tell me exactly what you said to
the employees about bargaining with the union?
A. Yes, I said the law required me to bargain with
the union in good faith but I was not under any
obligation to accept any unreasonable demand, and I
remember at that time the question came up, now that
you bring it to mind, "How often would you have to
bargain with the union?" And I told them I did not
know, but it could be once a week or month, that I did
not know.
Q Is it possible that you told the employees you
didn't have to accept any demands made by the union?
A. Any unreasonable demands.
Q Is it possible that you just said "any demands"?
A. No, it is not possible. I was very careful about
that.
Q. Were the comments you made about bargaining
with the union comments that were taken from the
prepared notes that you had'
A. Yes, prepared notes. However, I varied from
them a little bit.
Q. I will show you a document that I believe is a
copy of the prepared notes that you had
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. CONNORS. Yes, this is a copy we gave the
Board.
Q. (By Mr. Silbert) This is a copy of the notes you
had?
A. Yes.
Q. I note No. 9 of that statement reads: "We do not
have to accept any union demands."
A. Yes, that is the way it reads.
Q. It is not possible that that is the way you phrased
that9
A. I have already told you how I answered the
question.
TX: Would you repeat it?
Q. (By Mr. Silbert) The question, is it possible that
you made your statement as it is indicated in your
prepared notes?
A. No, it is not possible.
O'Neill repeated on further cross-examination that the
statement he made was with respect to unreasonable
demands and that he was positive that the word
"unreasonable" was included although he admitted that
his notes did not contain this. He said that he realized
there was a difference in content between the meanings of
"unreasonable" and "any union demands." He also said
he understood at the time the notes were prepared it
would be "an intimation of violation of the Act if I said I
would not agree to any demand." O'Neill testified on
further cross-examination:
Q. Were you advised at any time that the legal
consequences would differ if you used the words "refuse
to accept any union demands" and if you used the
words, "refuse to accept unreasonable union demands"?
A. No, I was not advised that.
Q. You were not advised that?
A. No.
O'Neill also testified:
Q. Do you recall mentioning to the employees that
you had three applications for every job?
A. Yes, at the commencement at the speech, I told
them that our telephones had been very busy because
the rumor about the city was that all the employees
would be going out on strike and since we have a
tremendous supply of labor in Orland and many of the
women had wanted to work there for years, that they
were now calling and that there were now about three
telephone calls for every job in the plant.
He was subsequently asked:
Q. At these meetings, Mr. O'Neill, you brought up the
subject of the possibility of changing to one shift under
certain circumstances. It was the first time you had
mentioned any possibility of a change in the method of
operation to the employees, was it not?
A. Yes.
O'Neill was asked by the Charging Union's attorney:
Q. (By Mr. Panattoni) But at the time you gave this
talk, Mr. O'Neill, do I understand you to say that you
were considering a change' in the method of operation
in the event the union was voted in?
A. No, I was asked what changes would be made in
the plant if we were forced to join the union.
Q. And your statement and answer to that was that
if the union went in you would have to make this
change in shift; is that right?
A. We would have to make some economic change
to compensate for the economic cost which would be
involved and additional benefits that they were
enjoying
Q. And that change would involve going to a
year-round shift and in fact eliminating the night shift;
is that correct?
A. Yes.
He further testified
W: I told the people that if we were forced to join
the union and that these benefits -- we were forced to
accept 14 of these benefits, that they were not presently
enjoying, it would increase our cost of operation and we
would then have to balance the extra cost of operation,
and one way would be that we would have to work 12
months' basis rather than 6 or 7 months' basis. Then
the question immediately came up, "What would you
do with the night shift?"
MR. PANATTONI• And your answer was?
W: That the night shift would probably be
eliminated.
O'Neill was asked about whether he had told the
employees that since they work from season to season he
was under no obligation to rehire them at the opening of a
new season and he replied that he did not say that,
although he testified that it was the policy of the
Company to consider employees as seasonal workers and
that their relationship was terminated at the end of the
season with no obligation to rehire. He said this was made
known to them through the employment application that
they signed every year.
On further examination by the Charging Party, O'Neill
again was asked about the use of the words "any
demand as compared with unreasonable demand. He was
asked if he considered that a statement to employees that
he would "reject any union demand" would be in violation
of the Act O'Neill responded, "This was discussed, this
particular phraseology was discussed by Mr. Connors
(Respondent counsel) and myself on the telephone the day
before I gave the talks and it was clearly understood at
that time that the words "unreasonable demands" would
be used. O'Neill further stated that he prepared the notes
(from which he spoke) completely on his own without
advice of counsel and then called him to check them.
O'Neill was again referred to Item No. 8 of the notes
which read "We do not have to accept any union
demands" and again repeated that in his talks he referred
to "unreasonable demands."
O'Neill was asked from the Trial Examiner "During
your talks did you make any statements about keeping
older people".
W: I mentioned hardship cases. We have had a few
for the last 6 or 7 years that have no other means of
income for the family that we have kept on.
TX: What did you say?
W: It came up by questions of some of the girls that
they were having to work harder than some of the
others, and I tried to explain that there were a few in
the plant - I didn't want to name names because they
were generally known - who had lost husbands and
had to make a living for the family, probably were not
as keen as some of the girls in ability but they were in
older years and we did feel sorry for them in their
loyalty we returned it by keeping them on the payroll 41
In order to evaluate the testimony of General Counsel's
witnesses as compared with O'Neill's version and
'According to O'Neill, the hardship cases were only discussed in two of
the meetings
T. M. DUCHE NUT CO., INC.
statements, these will be analyzed in a number of
categories by pointing out pertinent testimony of various
witnesses for the General Counsel relative to those
statements or utterances of O'Neill which the General
Counsel contends constituted violations of the Act.42
Accordingly, the testimony will be analyzed on the basis
of the following general contentions raised by the General
Counsel One, that O'Neill in his speeches indicated that
the employer wouldn't properly bargain or in essence
voiced a position of anticipatory refusal to bargain or
negotiate in good faith. Second, a contention that O'Neill
threatened employees with loss of job security or of work
by changing to a one-shift operation in the event the
Union were selected, and by emphasized reference to
having three applicants for each job. Third, a contention
that he made certain promises of benefit such as insurance
programs and also a promise of permission for or
suggestion of selection of an employee committee. Fourth,
although not directly set forth in the General Counsel's
brief, there appears to be implicit in the testimony offered
by the General Counsel a contention that O'Neill
threatened the employees with the inevitability of a strike
if the Union were selected; that all employees who went
on strike would be replaced as he had three applicants for
each job and that the strike could not be successful as not
only did he have replacements available but had arranged
to use the street to pick up the nuts to avoid any
interference. This latter will be considered in conjunction
with the alleged threat of change to a one-shift operation
and alleged threat of loss of unemployment benefits. In
addition to analysis of the testimony as to each of the
foregoing, there will also be considered the total impact
upon employees of what was said by O'Neill.
It should be noted in considering the foregoing that
there appears to be some inconsistency in the purported
positions of the Respondent. Such inconsistency may be
manifested among alleged statements that the Union
could, in essence, get nothing from bargaining, that the
advent of the Union would force a change in shift
operations and at the same time that the advent of the
Union would necessarily cause a strike which would not
succeed.
In general, it appears that the witnesses, both those of
the General Counsel and O'Neill, were seeking to tell the
truth as they saw and recalled it. This leads to another
question. If witnesses generally recalled an illegal
sequence., even assuming it were not precisely so stated,
but were a logical import of the presentation as made,
would Respondent be responsible, therefor If such result
could reasonably occur, then the answer would appear to
be "yes." I recognize this leads to still another question
which Respondent sought to ask numerous employees (but
to which objection was sustained) and that was, did the
employee feel threatened? However, there is this difference
- that the employees were reciting what they believed
they heard or what they understood which is quite
different from whether they felt threatened or coerced.
Accordingly, evaluation of the testimony appears in
order. First, as to the General Counsel's claim that in
response to questions from employees at some meetings,
O'Neill promised certain benefits in the future.
Purportedly, with respect to health insurance O'Neill told
the employees ". . . it would be gone into later on and he
couldn't see any reason why with the size of the Duche
plant he felt it could be worked out;" or O'Neill uttered
"In one instance also pertinent testimony of another witness for
Respondent is set forth.
473
words to such effect. While General Counsel witness
Holmes so testified, other witnesses, among those referred
to by the General Counsel, testified somewhat differently.
According to Claude Keller, O'Neill said ". . . he couldn't
see why a plant as large as Duche Nut Company couldn't
have a good health insurance program and that he would
look into it." (Emphasis supplied.) Admittedly, this
implies doing something but is not a promise in the same
sense as the testimony of Holmes quoted previously.
There appears the following also by Keller. On
cross-examination, Keller was asked if the remarks about
insurance were prompted by a question and answered, "
and I asked him a question on part time or seasonal
employees' insurance program and he said they would
have to look into both matters". General Counsel witness
Linda Rolfs testified on direct examination, . . as
somebody had asked him the question about insurance
and he said he didn't realize that the girls were that
interested in it, but he would try to look into it at a later
date " Joann Holmes testified she asked O'Neill about
insurance "and he said that he didn't know that the
employees wanted an insurance plan and that he would
look into it". Holmes, on cross-examination, testified
O'Neill said "he would look into it later". Holmes then
reasserted his earlier testimony by quoting O'Neill to the
following effect: "He said he saw no reason we couldn't
get a plan because of the size of Duche". As previously
set forth, O'Neill's version of his answer relative to
insurance was that he said he could not make a
commitment at the time but "it was something that could
be explored and looked into at a later date."
Similar testimony with respect to a suggestion box was
elicited that "he would look into it" and actually one was
put up a week or two after the election. O'Neill admitted
that the subject of a suggestion box had been brought up
and his version was "there would be nothing to prevent
that."
There was also some testimony concerning selection of
a committee of women. O'Neill testified that he told the
employees that there would be nothing wrong with such a
committee but that he could not make a promise at the
time. Three employees for the General Counsel testified as
follows: (1) Violet Warmack that O'Neill said ", . he felt
it would be a good idea if we selected a committee that
would come to him with problems.. ."; (2) Ann Conlee
that O'Neill said "he had heard a committee was
appointed at the meeting and he thought that was rather a
good idea, he thought that after this was over he wculd
like to have some kind of committee like that for the
women - ." Conlee added, "He thought it was rather a
good idea and he would give that some consideration." (3)
According to Joann Holmes' testimony ". . . a lady in the
meeting asked why, if we had problems, why didn't we
form a committee and go to him with the problems and
he said that would be fine if he (we?) wanted to...." The
General Counsel contends that the foregoing illustrates a
promise of benefit by the Respondent in order to induce
the employees to abandon the Union. I am not unaware
of the sublety of promises; however, I believe that the
question is one of degree and extent. I am not convinced
that the Respondent's responses here were of such definite
nature or in such context as to bring them within the
scope of the cases which have held that there were
promises in violation of Section 8(a)(1).43
"See the recent Decision of the Board in Redcor Corporation, 166
NLRB No 120, and cases cited in TXD This case was one in which the
undersigned Trial Examiner was involved but the extent of the implied
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then this brings us to the major issues of controversy
revolving essentially around three basic contentions. (1)
That the Respondent threatened bargaining would
inevitably be fruitless - in essence, a charge of
anticipatory refusal to bargain; (2) That the Respondent
threatened that if the Union came in it would have to go
to a one-shift operation from a seasonal one with resultant
loss of jobs. Involved in this as part of the situation is the
prior testimony of Warmack with respect to what Alfred
Stokes said concerning the elimination of older people and
possibly certain implications arising from the testimony of
some other witnesses respecting what was said by O'Neill
as to older people,49 (3) What amounts to an implied
contention (from the evidence) that the employer, in
essence, threatened a strike would occur or warned of the
inevitability of a strike, that the workers had no hope of
winning the, strike, that the Respondent could and would
replace all who went on strike with available replacements
of whom there were plenty. These three main items will be
considered as set forth, both individually and collectively,
as to their total import hereafter.
The following testimony of witnesses for the General
Counsel appears pertinent on these issues. Violet
Warmack testified that O'Neill said at one meeting which
was held in the coffeeshop on March 15:
. . . we could always come to him with anything, he
stated that the coffee cost him $170 a month to
maintain coffee and furnish us with coffee, he said they
were paying all they could afford to pay, and that he
would not have to bargain with the union and he was
going to be hard-nosed about coming to agreement with
the union,. .
before the election (held March 17) as follows:
He went on to state he had been getting calls every
day from people seeking employment because of the
publicity of the union, and he went on to say that he
had three applications for every person's job in the
plant and that if the union was successful he would have
no alternative but to run the plant on a one-shift,
year-round basis, and to get his one shift he said he
would take the most qualified people off the two shifts
and put them on one shift, year-round, and by this he
said people would be laid off. He then went on to state
that if the union was successful by 60 per cent, and 40
per cent didn't want the union, that in case of a strike
or a picket the 40 per cent would be able to come back
to the plant and go to work; should the 60 per cent that
voted for the union fail to cross the picket line they
would be replaced. He then went on to say he had
permission from the city of Orland to load his trucks in
the street, and he had also contacted management of
the three truck lines that haul for Duche and the
management assured him they personally would see
these trucks cross the picket line . . . He then went on
to say he was paying the highest wages he could afford
to pay, and he said no one could make him pay higher.
He said some were comparable to union scale, some
below. Then he said no one could force him to
negotiate , that the law read that he had to bargain in
good faith, but he said this meant he could speak to the
union and then do what he wanted to, go right on doing
what he wanted to do. He said coffee cost him $170 a
month and that most places had coin-operated
machines. I believe that is all I can recollect. [Emphasis
supplied.]
... he said he was going to have to cut out one crew to
make it pay, that other companies were going to
automation and were putting out more production with
less girls or less crew, he said he wasn't worried about
getting the product out, that he had made arrangements
with the City of Orland to haul the nuts in the street.
[Emphasis supplied.]
* * * * *
Q. You mentioned that he had talked about loading
the trucks in the street. In that context, did he say
anything about a strike or anything of that nature?
* * * * *
A. Yes, he said that if we went on strike that he had
been getting telephone calls and he had three applicants
for every woman's position there. [Emphasis supplied.]
William Holmes testified as to a meeting in the
coffeeroom at about 3:10 in the afternoon about 2 days
promises made therein at the meetings of employees was so great as to
clearly indicate that in certain respects the employer had made very
definite commitments regarding material matters I do not consider such to
be the case herein.
"As set forth, supra, O'Neill himself admitted discussing at two
meetings the matter of keeping certain older people, so-called "hardship"
cases Other witnesses including Ann Conlee (post ) referred to O'Neill
stating it had been company policy "to carry a good many of those (slower
older ladies ) but he might have to change that in the future " Linda Rolfs,
post , testified O'Neill said, ". . . he did say that he had hired a lot of the
older girls out of sentiment and that if some of the girls had to work
harder to make up for it it couldn' t be helped " In this connection, Joann
Holmes testified to substantially the same effect as Linda Rolfs
Holmes further testified on cross-examination:
Q. Now, at the beginning of Mr. O'Neill's talk, did
he tell you that he was somewhat familiar with the law
and that he did not intend to make any threats or any
promises'
A. Yes, he did.
Q. Did he say that more than once during the course
of this talk?
A. As I recall, he said it several times.
Q. And did he tell you that many of the topics which
he covered were covered because of questions he had
asked of him about employees?
A. No, he said most of his speech was made out by
his lawyer. There was no questions other than the
insurance.
Ann Conlee testified as to a meeting held in the
coffeeroom just after 5 o'clock when they went to work
that night. According to Conlee, O'Neill said:
. . then he said there had been a lot of gossip going
around, and his phone had been ringing, and people
were calling in for jobs and he had three applications
for every job we held. Then he said he thought
conditions were fairly good, we received coffee, which
cost about $175 a month. He also said that the union
were not going to get in there, that he would fight it all
the way, and if we were going out on strike the pickets
could walk up and down, and back and forth, and it
wouldn't worry him at all.... [Emphasis supplied.]
* * * * *
Q. Do you recall if something else was said at that
meeting?
T. M. DUCHE NUT CO., INC.
A. He mentioned that several of the women were
dissatisfied because they had to do the work of some of
the slower , older ladies , and he realized that that was
hard , but that had been a company policy , to carry a
good many of those ladies , but he might have to change
that in the future.
Q. Did he say why he would have to change it?
A. No.
* * * *
Q. He made some statements about what would
happen if there was a strike and certain employees
coming back. Did he say anything else about the strike?
A. No, only that if there were pickets outside it
wouldn't bother him if they stayed quite a while
because he was going to see the union wouldn't get in.
Q. Did he say anything about help loading trucks?
A. Yes. I think he said he had permission - I think
it was permission from the city, to load the nuts in the
street
Q. Was Mr. O'Neill using notes when he made the
speech?
A. He was reading from some papers.
Q. How often did he refer to the papers?
A. He would glance at them occasionally.
Linda Rolfs attended a meeting about a few minutes after
6 o'clock on March 15, and testified that O'Neill said:
Q. Can you tell me now, to the best of your
recollection, what was said by Mr. O'Neill at that
meeting?
A. One thing, he stated about unemployment, how
much he paid out, and that it amounted to about a
dollar more per hour for the girls in the summertime.
He made a statement about the coffee, which was $170
per month. He made a statement about the trucks, if
the union was voted in, there was a picket line, that he
had made arrangements with the city to load the
trucks in the streets. He did say that he had telephone
calls all day since this deal over this union had started
and he had three applications for every employee's job.
[Emphasis supplied.]
Q. Can you recall if anything else was said?
A. I can't think right offhand. He did say that if the
Union didn't get in, that everything would go on the
same as before, that there would be no changes in
employment. [Emphasis supplied.]
* * * * *
W: He said that they had always hired by seniority,
and he did say that he had hired a lot of the older girls
out of sentiment, and that if some of the girls had to
work harder to make up for it, it couldn't be helped.
He said that the union coming in, trying to come in,
had cost him a lot of time, and a lot of money, and he
wasn't going to forget it.
Q. The question was whether or not Mr. O'Neill
mentioned anything on the subject of bargaining or
meeting with the union?
A. He said he didn't he wasn't going to bargain
with the union, that he didn't have to bargain in good
faith if he didn't want to. I can't think of anything else.
* * *
Cross-examination
475
Q. (By Mr. Connors) Mrs. Rolfs, did I understand
you to say that Mr. O'Neill said he didn't have to
bargain with the union?
A. As I remember it, yes.
Q. Don't you think he said he did have to bargain
with the union in good faith and had to meet with
them?
A. It could have been that way.
Q. Did he start off his remarks by saying he didn't
want to make any threats and didn't intend to make
any threats?
A. He said that, yes
Employee Claude Keller testified at a meeting in the
coffeeroom about 3:15 p.m. O'Neill said:
... and he said that the company was paying as much
as they could afford to pay and they would not and
could not pay more, and he said that he had been
having an awful lot of phone calls, that the line had
been tied up there at the company, I believe he said at
his house also, and that people were requesting jobs if
and when we went on strike, he said there was a big
rumor going around to this effect, and that there was
something like three applications for every one job in
the plant, and he said that if we did go on strike, if the
union was successful and we did go on strike, that he
had permission from Orland to load the trucks in the
street, and he had a guarantee of trucks, and he said if
the union did go in that the plant would operate on a
year-round basis , that it would be the only way he could
make the plant pay, and he said because his buyers who
bought nuts from him did not want nuts all at one time,
and he had been having to put them in cold storage,
and he said working all year-round would eliminate his
paying unemployment, that as it was right now it was
approximately a dollar an hour paid into unemployment
for the people that worked there on a part-time basis.
[Emphasis supplied.]
* * * * *
Q. Do you recall if anything else was said at that
meeting?
A. Oh, he said during the meeting there that if we
did go on strike the jobs there would be there, but if we
went on strike that he would just replace us.
* * * * *
He said that he wouldn't have to bargain - oh -
he considered bargaining in good faith with the union,
was that he would have to meet with the union
approximately once a month and listen to them, but he
said he did not have to agree with what they had to say,
or a contract, that the plant would continue to run as
usual
* * * * *
Q You mentioned that Mr. O'Neill said something
about working year-round. Did he say how that would
be done or how that would be accomplished?
A. Yes, he said that they would only have to have
one shift, that if they worked on a year-round basis,
that there would be no hurry to get the nuts out as
there is on a seasonal basis, that they would go to one
shift and that would mean a loss of jobs [Emphasis
supplied.]
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination, Keller testified
Q And he said that his conception of good faith
bargaining or his concept of good faith bargaining was
that he would have to meet with the union and listen to
what they had to say; is that correct9
A. Yes, that is what he said.
On questioning by the Trial Examiner, Keller testified:
TRIAL EXAMINER: I have a question . What was said
about the year-round operation? Who said it? Was
there a question or did Mr. O'Neill bring it up? How
did it come about?
THE WITNESS' In the meeting Mr. O'Neill stated that
if the union was successful in obtaining the plant that
he would have to go to a year-round basis. The way I
took it, his meaning was he would put the plant on a
year-round basis.
TRIAL EXAMINER: Just indicate for the record what he
said.
THE WITNESS: He said that he would go to a
year-round basis and this meant that he would need
only one shift and that it would eliminate the second
shift. [Emphasis supplied.]
TRIAL EXAMINER: Is that what he said?
THE WITNESS. To the best of my memory, yes.
Subsequently, on further cross-examination, Keller
testified:
Q. Did he say that if the union was voted in and
wages were increased he would have to offset these
additional costs somehow?
A. Yes, he did.
Q. And didn't he say he would have to change our
operations to make them similar to other nut
companies,- namely, the one-shift basis?
A. Yes,-he did.
Stella Satterfield testified that she attended a meeting
about 5 minutes after 4 in the coffeeroom 2 days before
the election and that O'Neill stated:
Well, first, the thing that I really remember is he
brought up the cost of unemployment to the plant, that
our wages would be increased considerable if we added
the unemployment which he let us have by seasonal
work, and he said that coffee cost him a certain
amount, and I don't remember just how much, but the
cost of coffee was brought up, so much per month, and
he did say that he had been - that the phone had
been ringing all day, women who had heard of union
activities figured that there would be some of us out of
work or some jobs available, and that they were calling
in, and he said that even if some of you - "if 60 per
cent of you vote for the union and 40 per cent against,
I can take the 40 per cent and hire additional help and
the 60 per cent will be out," and he said, "If you have
any idea you can stop us from getting the nuts away
from the plant," he had already made arrangements to
load in the street. . .
Q Do you recall if anything else was said with
respect to the operation of the plant in the future?
A. Yes. This was in connection - when he was
talking about the cost of unemployment, as well as I
remember, that he would have to cut one crew off and
run full time in order to economize He said they were
paying all they could and nobody could make them pay
more.
Q. Can you remember anything else that was said?
Do you recall if anything was said on the subject of
meeting with the union?
A. I don't remember anything about that. He said he
didn't have to bargain with anybody.
Q. What did he say along that line?
A. Those were his exact words, "I don't have to
bargain with anybody "
On cross-examination, Mrs. Satterfield testified:
Q. (By Mr Connors) Is it your testimony, Mrs.
Satterfield, that Mr. O'Neill said he didn't have to
bargain?
A That is the way I remember.
Q. Is your memory pretty clear on that?
A. Well, I remember it that way. He said he was
going to be hardnosed about it. [Emphasis supplied.]
Joann Holmes testified that O'Neill spoke to a group,
including herself some time after 6 o'clock on March '15
in the coffeeroom. She testified that O'Neill said:
Well, at first he said - I think it was at first - he
said that he had spoken to his lawyers about this and
- to find out what he could say, and that they were
experts in this sort of thing, and he had notes in front
of him and he read from his notes - or didn't read
from them but he looked at his notes every once in a
while, and then he told us that since the community had
heard about the election not the election, I take that
back - the union tried to get in, that his telephones
had been ringing off the hooks from people wanting
applications for work, and that he had three
applications for every job in the plant, and then he went
on to say that if the union did go in that he would be
forced to put the plant on a one-shift, year- round basis,
eliminating the night shift, and - let's see - I think
somebody asked him or said to him that he thought
that Duches could be forced to negotiate with the
union, and he said that no one could force him to sign
- do, say, sign or accept anything that he didn't want
to. [Emphasis supplied.]
*
then a lady asked him if the union went in, would
she have to join because she didn't want to, and he told
her No, she would not have to join, and then he used
the example of 60 per cent for, the union and 40 per
cent against the union. He said the 40 per cent could
work and should there be a strike, the 40 per cent could
cross the picket line and the 60 per cent could be
replaced, and then he mentioned that some of the older
ladies that had worked there for years arid years, that
he the plant hired back every year out of sentiment,
and if the rest of us had to work a little bit harder to
maybe compensate for being a little slower, that he was
just sorry, but that is the way they did it, and he also
said that he had obtained permission from the City of
Orland to load his trucks - or to load trucks in the
street should there be a strike. [Emphasis supplied.]
On cross-examination, she testified:
Q. Did he say the law required him to negotiate with
the union?
A No, an employee said that he through the Duche
Company could be forced to bargain with the union,
and he said no one could force him to do anything.
Q. Did he say he would not bargain with the union?
A. No, he just said no one could force him to.
T. M. DUCHE NUT CO., INC.
Q. To sign anything?
A. Do, say, sign or accept, he said.
Jessie Degel, a witness called by Respondent, testified
that she attended one of the meetings and recalled some
of what O'Neill said including the following:
... and then he said that if the union got in that there
would be a possibility that in order to meet the, oh,
benefits, if they negotiated and everything, and that
there would be a possibility that they would have to go
year-round and they would pick the best workers from
both shifts and have one shift year-round.
The foregoing, except for the testimony of Mrs Degel
who posed the matter in terms of "possibility" of going to
a yearly operation, indicates (except as set forth below)"
consistent testimony by the General Counsel witnesses to
the effect that O'Neill threatened to go to a one-shift
operation with resultant loss of jobs in the event that the
Union was successful; that he also threatened that
bargaining would do no good because he was going to be
"hard nosed" in bargaining and didn't have to agree to or
accept anything; that further that he repeated in the
various meetings that he had three phone calls by job
applicants for every employee; that if there were a strike
he was prepared to and would replace the strikers and
operate the plant. While O'Neill, as previously set forth,
claimed that he had said that he would not agree to
"unreasonable" demands, the testimony set forth indicates
a totality of position by O'Neill to the effect that he
would bargain only to the extent that he chose to do so,
he didn't have to agree to or accept anything46 and was
going to be "hardnosed", that he would eliminate jobs in
the event the Union were successful by going to one shift
and that in the event the Union were successful and called
a strike that he would beat the strike by having three
available replacements for each worker and by having
made plans to operate during the strike.
The first problem concerns conclusions as to what
O'Neill said. Assuming that they were telling the truth, as
I find, there seems to be no doubt that the aforesaid
witnesses for the General Counselgl understood him to
have made the various statements in substance as
"I note in this connection an arguable ambiguity in Keller ' s testimony
on direct examination where he stated O'Neill "said if the Union did go in
that the plant would operate on a year-round basis , that it would be the
only way he could make the plant pay; he also so testified on questioning
by the Trial Examiner . Then on further cross as set forth, supra, he
responded "yes" to a question , "Did he say that if the Union was voted in
and wages were increased he would have to offset these additional costs
somehow"" And a further answer of "yes" to a question, "Didn ' t he say he
would have to change our operations to make them similar to other nut
companies , namely the one shift basis?" This testimony unlike Keller's
earlier testimony and that of the other witnesses for the General Counsel
as to what they heard at various meetings, refers to what would follow a
wage incn.ase. I expect this would have been involved in O'Neill 's thinking.
However , the testimony of employees set forth , supra, other than possibly
Keller and Degel was that O'Neill spoke of a one shift operation with loss
of jobs it the Union were selected without reference to costs. Even in
Keller's latter testimony set forth , although there is a reference to cost at
one point there is no qualification on the change to a one shift operation
This would occur . Actually although the questions set forth on
cross-examination followed each other in the record it is not clear
therefrom what time sequence may have been involved between such a
"cost" reference by O'Neill and the statement about changing to a one
shift operation
"As further supporting the conclusion that O'Neill said he did not have
to agree with or accept anything he didn't want to, is the reference in the
notes used by O'Neill , supra , to "We do not have to accept any union
demands ." I do not predicate my findings thereon but consider it further
supporting evidence therefor.
477
consistently set forth by them. The only variance from this
was the testimony of Respondent witness Degel who
qualified O'Neill's statement as to "possibly" going to one
shift. Her recollection was obviously poor and I do not
credit her testimony with respect to such qualification.48 I
further find it reasonable to infer that the aforesaid
witnesses for the General Counsel heard O'Neill to have
stated, in substance, what was set forth Although I
consider that if enough persons "heard" certain
statements as made, Respondent could be found
responsible therefor and for the cumulative effect of
O'Neill's remarks even if not actually so stated, I do not
find it necessary to rely on such concept. Rather I
conclude from all of the testimony and my appraisal of
the witnesses that whether or not he intended to do so
O'Neill at the various meetings made the statements set
forth herein attributed to him by the witnesses named in
footnote 46 hereto. The next question is did these
statements violate the Act or were they protected under
Section 8(c). The Court of Appeals for the Ninth Circuit
in the very recent case of T. R. W. Semi-Conductors '41
analyzed the issue very carefully and reversed the Board in
that case on the ground that in essence the employer's
statements were in the nature of predictions. I believe that
the position asserted by the Court of Appeals is a sound
one. The problem is when are predictions such and when
are they threats or something more. The court, in its
opinion, stated "We can find in the material supporting
the first two themes no threat that the employer would use
force or indulge in reprisal. The literature-and the speech,
insofar as violence and strikes are concerned, are but
predictions of what the Union might or would do. As
such, we think that they'fall squarely within the protection
of Section 8(c) even though they might well produce in the
minds of employees fears of violence. The same
observation applies to predictions of possible monetary
loss or job loss resulting from strikes that are contained in
the propaganda. [Citations omitted.] There is no
suggestion that the employer will reduce benefits or cut
jobs if the employees vote for the Union. [Emphasis
supplied.] The prediction is that the Union may or will
cause such losses through strikes."
The question, therefore, is were the Respondent's
statements herein mere predictions or were they
"suggestions" or more than suggestions that the employer
will reduce benefits or cut jobs if the employees vote for
the Union. I think that a fair interpretation of the
remarks set forth above, supra, which I have found were
made by the employer constitute threats (1) that the
employer would reduce benefits by going to a one shift
operation if the Union were successful, (2) that if the
Union were selected, there very likely would be a strike
which the Union would lose because Respondent had
prepared for it, and further the employees who went on
strike would lose their jobs because they would be
replaced and (3) that the employer would not bargain in
good faith with the Union. I recognize, as set forth above,
that the employer was advised by counsel and that these
asserted positions have an apparency of inconsistency.
Whether they were made conjunctively or disjunctively, is
not decisive herein. The fact is that all were asserted in
the same speech - each time the speech was repeated.
47I refer to Warmack, William Holmes, Conlee, Rolfs, Keller,
Satterfield , and Joann Holmes.
In footnote 44, I have also analyzed Keller's testimony with respect to
any variance from other witnesses
"385 F 2d 753
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They were not set forth as an informative presentation of
possibilities which conceivably could have been proper
Rather, they were presented as matters which would
occur. The inferences which can be drawn from the
foregoing are not only such as might arise from one type
of threat but rather from a combination of threats. To
paraphrase: First, it won't do you any good to get the
Union because we won't bargain anyway; second, If you
do select the Union, it will mean a loss of employment,
and you may lose your job; and third, if the Union is
selected there is likely to be a strike, and we have the
replacements and will replace you if you strike. These are
not predictions of possibilities or even probabilities but
rather utterances of what the employees could expect the
employer would do. This latter as pointed out by the court
in T R. W. Semi-Conductors, supra, is not protected by
Section 8(c). In that case the court distinguished the
statements therein on the ground they were merely
"predictions of possibilities or probabilities." It recognized
(citing cases) that statements of what will happen are
violative of the Act where they involve reduction of
benefits, loss of jobs, etc.
In addition to the decision of the Court of Appeals for
the Ninth Circuit in the T. R. W. Semi-Conductors case,
the Court of Appeals for the Seventh Circuit, in ld L R.B.
v. Kolmar50 recently passed on a like question. In a series
of letters to employees the employer indicated according
to the Court:
[3] Respondent's pre-election campaign appears to
have been, calculated to impress its employees with
three "facts." The first was that respondent's economic
position at its Milwaukee plant was extremely
precarious and that the effective reasons for continuing
the Milwaukee operations were sentimental rather than
economic. The second "fact" was that any impairment
of respondent's competitive position in the market
served by its Milwaukee plant would compel it to close
the plant and transfer its operations elsewhere. The
third "fact" was that the introduction' of 'a union at the
plant would, impair respondent's competitive position.
These "facts" inescapably lead to the conclusion that
election of the union would be tantamount to the
termination , of operations at Milwaukee and the
consequent loss of employment.
[4] We need not detain ourselves in linking together
the excerpts from respondent's campaign
pronouncements The test is whether the likely import
of respondent's pronouncements was coercive . Wausau
Steel Corp. v. N.L.R.B , supra 377 F.2d at 372. Here
the likely import was that if the union won, plant
closure was a foregone conclusion. [Emphasis supplied.]
The court further stated:
Respondent contends that where the employer has
maintained a close relationship with its employees and
its course of conduct does not show a pattern of
unfairness to the union, these factors should be
considered in determining whether its communications
were coercive. It cites several recent decisions of this
court in.which these factors were found to render the
employer's pronouncements innocuous. In none of these
cases was the message as ominous as in this case.
[Emphasis supplied.]
[5] Respondent further contends it was merely giving
its employees the facts, enabling them to make a
reasonable and free choice "It is well settled that an
SB387 F 2d 833.
employer's 'prediction' of untoward economic events
may constitute an illegal threat if he has it within his
power to make the prediction come true " International
Union of Electrical, Radio and Machine Workers,
AFL-CIO v. N.L.R.B., 110 U.S. App. D.C. 91. 289
F.2d 757, 763 (1960). Respondent has the power to
close or relocate its Milwaukee plants' [Emphasis
supplied.]
I recognize as did the court in T. R. W.
Semi-Conductors and the court in Kolmar that issues such
as here involved are rarely free from doubt and further
that freedom of expression is to be given considerable
latitude However, where the expressions are coercive in
effect whether disjunctively or conjunctively as I have
found herein they are neither protected by Section 8(c) of
the Act nor the constitutional guarantees of Freedom of
Speech and Expression. Accordingly, I find that both by
the threats or coercive statements by O'Neill as to loss of
jobs and benefits set forth above, disjunctively as well as
conjunctively, and also by its anticipatory refusal to
bargain in good faith.52 Respondent violated Section
8(a)(1) of the Act. I have also, supra, so found violative of
Section 8(a)(1) the threat by Alfred Stokes to Violet
Warmack that if the union were selected they would go to
a year-round basis and they would "have to get rid of
some of the people," referring particularly to older people.
3. Conclusions as to Respondent's good faith
Another question to be resolved is was Respondent's
refusal to recognize the Union without an election in good
faith or not where the Union possessed a majority at the
time? I am aware that certain law review writers53 and
also some courts have expressed doubt concerning the use
of subsequent unfair labor practices to establish proof of
"See also Wausau Steel Corporation , 377 F 2d 371 (C A 7) in which
the court said
During the period prior to the election , Theodore Wallach, Wausau's
president , communicated with his employees by letters and through
speeches While Wallach was generally guarded in his statements, he did
suggest that if the union won the election , overtime work might be
reduced or eliminated. He also stated that increased expenses due to
unionization might make it necessary to sell trucks , and to close the new
steel department , and that if the union obtained a 22 or 22 1/2 cent
raise for the employees, Wausau would be forced out of business He
noted that certain wage inequities had come to his attention and that he
planned to correct them. He further said
No union can supply you with overtime or force the company to
provide overtime Our margin of profit is so small that any
substantial increase in our costs would mean that we would operate
at a loss and be forced to drop major parts of our operations We
don't want this - and you don 't either
We intend, when this union matter is settled, to make proper
adjustments in wages and to establish a reasonable insurance
program
This theme was stressed a number of times in Wallach 's various
communications [Emphasis supplied ]
The Court also stated
While we do not doubt that Wallach proceeded carefully in attempting
to limit his communications to his employees to the legally permissible,
his words must be judged by their likely import to his employees As the
trial examiner suggested , one who engaged in "brinksmanship" may
easily overstep and tumble into the brink It is well settled that an
employer has violated Sec. 8(a)(1) of the Act if, in communicating to his
employees during a union organizational drive preceding an election, he
makes promises of benefit or threats of loss or reprisal for their vote
[citing cases] [Emphasis supplied ]
'rThat such conduct is tantamount to a threat to employees to refrain
from assisting or becoming members of a union , see Grunwald Marx, 127
NLRB 477 citing Augusta Bedding, 93 NLRB 211, 212 See also
Raytheon , 160 NLRB 1603.
"See 75 Yale Law Journal 805 at 825 et seq , Lesnick 65 Michigan Law
Review 851 at 855
T. M. DUCHE NUT CO., INC. 479
bad faith in a refusal to recognize a union having a
majority of signed authorization card S.54
However, the Board has taken a different view as to
consideration of subsequent unfair labor practices in
evaluating the presence or absence of good faith. The
Board has weighed the extent and seriousness of the unfair
labor practices considered in connection with all the
circumstances involved in reaching an evaluation as to
whether a refusal to bargain was in good faith or not. In
its decision in Bernel Foam" the Board stated in a
footnote*
Unlike the Trial Examiner, we are not convinced
that, because Respondent made no effort to impede or
delay the election and because Respondent's unlawful
8(a)(1) conduct did not occur until 2 weeks after its
refusal to bargain with the Union, it follows that
Respondent's refusal to bargain was not motivated by a
desire to gain time in which to undermine the Union.
On the contrary, the time necessarily consumed in
arranging for an election is itself a delay when
compared with immediate recognition or acceptance of
an impartial card check. Moreover, the fact that
Respondent waited until the day before the election to
engage in unlawful conduct is entirely consistent with a
finding that Respondent refused to bargain with the
Union in order to gain time to destroy its majority,
since on the day of the election Respondent would
benefit most from its unlawful acts. At that time, the
Union would have little opportunity prior to the
election to undo the harm done by Respondent's
various coercive statements. Further, since Respondent
had taken active steps just prior to the election to
destroy the Union's majority there obviously was no
necessity for Respondent to delay the election further.
[Emphasis supplied.]
The Board subsequently in the lead case of Aaron
Brothers" discussed certain criteria for determining
whether an employer's refusal to bargain with a union
(shown to have a majority) was in good or bad faith. It
stated
Whether an employer is acting in good or bad faith
in questioning the union's majority is a determination
which of necessity must be made in the light of all the
relevant facts of the case, including any unlawful
conduct of the employer, the sequence of events, and
the time lapse between the refusal and the unlawful
conduct. Where a company has engaged in substantial
unfair labor practices calculated to dissipate union
support, the Board, with the courts' approval, has
concluded that employer insistence on an election was
not motivated by a good-faith doubt of the union's
majority, but rather by a rejection of . the
collective-bargaining principle or by a desire to gain
time within which to undermine the union. However,
this does not mean that any employer conduct found
violative of Section 8(a)(1) of the Act, regardless of its
nature or gravity, will necessarily support a
refusal-to-bargain finding. For instance, where an
employer's unfair labor practices are not of such a
character as to reflect a purpose to evade an obligation
to bargain, the Board will not draw an inference of bad
"See for example discussion in N L R B v. United Mineral & Chemical
Corporation , 391 F 2d 829 (C A 2), and N. L R B v. River Togs , 382 F 2d
198,20b-209
"146 NLRB 1277 at 1284
"158 NLRB 1077
faith.
It referred to Hammond and Irving" as a case where
the unfair practice (some interrogation) "while unlawful
was not so flagrant that it must necessarily have had the
object of destroying the Union's majority status."
However, in later cases the Board distinguished the
Hammond & Irving case on the facts therein.
For instance in I , T. T. Semi-Conductors, Inc.," the
Board said:
We view the Section 8(a)(1) violations found to have
been committed by Respondent throughout the period
of the Union's organization activity to be of a serious,
substantial and pervasive nature. The threat to close the
plant should the Union be designated as bargaining
representative, the furnishing of material and space on
company time for the fabrication and dissemination of
anti-Union propaganda, the granting of a wage increase
at a time calculated to interfere with the
self-organizational rights of employees, and the
disparate enforcement of a no-solicitation rule are each,
in our judgment, by themselves sufficient to establish
that the Respondent had as its purpose the rejection of
the collective bargaining principle or the desire to gain
time within which to undermine the Union and
dissipate its majority [Emphasis supplied.]
The Board went on to find that Respondent violated
Section 8(a)(5) by refusing to recognize the,Union
In Fabricators, Incorporated, 168 NLRB No. 21, the
Board said:
In meeting with a group of employees for the
purposes of discussing employee grievarres, the day
before the election, President Jagoe threatened that if
the "troublemaker" were identified the trouble would
be eliminated. And a department fotcman made a
threat of layoffs if the Union came in, with an
admonition to an employee to spreads t is warning,
which the employee obeyed In our jr gment, these
threats of serious reprisals plainly refleklr Respondent's
attitude toward its employees' unionization. These
unfair labor practices, coupled with, unlawful
interrogations by Jagoe and other respqisible Company
representatives, occurring both befire and after
Respondent's refusal to extend reca;nition, clearly
support an inference of bad faith or the part of
Respondent. [Emphasis supplied.]
These cases and others' indicate vhere there are
substantial unfair labor practices such as hreats of layoff
or discharge (as here) and/or a threw, of refusal to
bargain, they must "necessarily have the object of
destroying the Union's majority status" ol^ establish that
Respondent "had as its purpose the reection of the
collective-bargaining principle or the desiii to gain time
within which to undermine the Union art dissipate its
majority." Accordingly under the circu(stances here
involved, the nature of the threats rade by the
Respondent in conjunction with the impeling election
were such as to require a finding and conclu;on under the
aforesaid decisions of the Board that the Repondent was
not acting in good faith in refusing to rrrognrze and
bargain with the Union without an election, I conclude
that Respondent has violated Section 8(a)() and also
8(a)(1) of the Act by such refusal to btgam. The
1"154 NLRB 1071.
"165 NLRB No. 98
"See Galbreath Bakery, Inc, 163 NLRB No 41, and discut io, therein.
and see N L R B v Consolidated Rendering Co , 386 F 2d "i99at 703,
(C A 2)
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate remedy, therefore, under the aforesaid
decisions, will be to require the Respondent to recognize
and bargain with the Union.6°
Furthermore, as stated by the Board in Fabricators,
Incorporated, ibid.-
in any event, an order directing the Respondent to
bargain with the Union, upon request, is necessary to
remedy the effects of its unfair labor practices. The
record establishes that the Union had a majority when
the Respondent began its course of unfair labor
practices directed at destroying this support. The
subsequent diminution of support, as revealed by the
Union's loss in the election, can only be attributed to
the Respondent's unlawful conduct 61
I shall accordingly recommend that the Respondent be
ordered to bargain, upon request, both to remedy its
violation of Section 8(a)(5) and its violation of Section
8(a)(1) of the Act
IV. OBJECTIONS TO THE ELECTION
Item 2 of the election objections is as follows:
"Management's threat to discontinue swing shift of
employers voted Union, thereby creating considerable loss
of jobs contiary to the Act." This encompasses
substantially the same matters alleged in paragraph 2(b)
and (c) of the, complaint that Respondent informed
employees "that Respondent would alter its method of
operation and discharge some of its employees if they
selected the, Union as their collective bargaining
representative" I have previously found under Heading
III that Respondent engaged in such alleged conduct in.
violation of Section 8(a)(1) of the Act. For the same
reasons, previously set forth under Heading III, I hereby
find that Respondent (Employer) has engaged in the
conduct alleged in the aforesaid Item 2 of the election
objections. Ac[ordingly, I am recommending that the
election be se; aside. In view of my findings and
recommendatiois that the Respondent be required to
bargain with tlb Union, I further recommend that the
petition for epresentation be dismissed and all
proceedings helcthereunder be vacated.62
V. THE REMEDY
Having foui'I that Respondent has engaged in and is
engaging in ertain unfair labor practices, I shall
recommend tht it cease and desist therefrom and that it
take certain afirmative action which I find necessary to
remedy and 'emove the effects of the unfair labor
practices and n effectuate the policies of the Act.
Affirmative, I shall recommend that upon request
Respondent hrgain collectively with the Union for the
employees in he unit herein found appropriate.
Upon the basis of the foregoing findings and
conclusions and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. By threatening to change its operations and discharge
employees if the Union were selected as
collective-bargaining representative, Respondent restrained
and coerced its employees and thereby violated Section
8(a)(1) of the Act.
2. By threatening that it would not bargain in good
faith with the Union if selected as collective-bargaining
representative, Respondent restrained and coerced its
employees and thereby violated Section 8(a)(1) of the Act.
3. All production and maintenance employees of T. M.
Duche Nut Co., Inc., at its processing plant at Orland,
California, excluding office clerical employees, guards,
and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Sections 8(a)(5) and 9 of the Act.
4. On February 7, 1967, and at all material times
thereafter, the Union represented a majority and has been
the exclusive bargaining representative of all the
employees in the aforesaid appropriate unit for purposes
of collective bargaining within the meaning of Sections
8(a)(5) and 9 of the Act; and Respondent on that date
was, and has since been, obligated to recognize and
bargain with the Union as such.
5. By refusing, upon request, to recognize or bargain
with the Union for the employees in the above-mentioned
appropriate unit on and after February 7, 1967,
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
"The courts have also sustained such a remedy under similar
circumstances . See for example N L R.B v. Luisi Truck Lines , 384 F.2d
842 at 847, (C A 9), citing cases ,
"Citing Bryant Chucking Grinder Company, 160 NLRB 1526 The
Board there said-
Respondent's subsequent unfair labor practices , designed to induce
employees to abandon their support for the Union , demonstrated a
rejection of the collective -bargaining principle and give rise to the
inference that its initial refusal to bargain was not in good faith. . . The
record establishes that the Union had a clear majority when the
Respondent began its course of unfair labor practices directed at
destroying that majority . To the extent that the election revealed a loss
of union support thereafter, such loss must be found attributable to the
Respondent's unfair labor practices . Therefore, we shall order the
Respondent to bargain, upon request, with the Union both to remedy its
violation of Section 8(a)(5) and its violations of Section 8(a)(1) of the
Act.
'Urving Air Chute, 147 NLRB 627 at 630
APPENDIX B
LIST OF AUTHORIZATION CARDS
Signed by: Introduced by: Trans. No.
1. Thomas Utter (G.C. 6) Hugh Cowan 35
Michael Utter (G.C. 7) Hugh Cowan 36
3. Ed Bayless (G.C. 8) Hugh Cowan 38
4. Everett Button, Jr. (G.C. 9) Hugh Cowan 40-42
T. M. DUCHE NUT CO., INC. 481
5. William Holmes (G.C. 10) Hugh Cowan 40-42
6. Jerry Phillips (G.C. 11) Hugh Cowan 40-42
7. Hurshell Hodge (G.C. 12) Hugh Cowan 40-42
8. Robert Hodge (G.C. 13) Hugh Cowan 40-42
9. Mary Lou Castillo (G.C. 15) Hugh Cowan 44
10. Violet Warmack (G.C. 16) Hugh Cowan 46
11. George Embrey (G.C. 17) Hugh Cowan 47-50
12. Ivan Leach (G.C. 18) Hugh Cowan 47-50
13. George Stokes (G.C. 19) Hugh Cowan 47-50
14. Consuelo Dominguez (G.C. 20) Hugh Cowan 51-53
15. Margarita Dominguez (G.C 21) Hugh Cowan and 51-57,
William Holmes 117-119, 151
16. Anne Conlee (G.C. 22) Hugh Cowan 58, 59
17. Roma Croft (G.C. 23) Hugh Cowan 59, 60
18. Margarita Audelo (G.C. 24) Hugh Cowan 60, 61
19. Ragna Dobratz (G.C. 25) Hugh Cowan (also present
William Holmes)
62
20. Amy Oltjmbruns (G.C. 26) Hugh Cowan (also present
William Holmes)
63} 64
21. Frances Simpson (G.C. 27) Violet Warmack 85, 86
22. Joy Brumbaugh (G.C. 28) Violet Warmack 87
23. Alice Larsen (GC. 29) Violet Warmack 88
24. Hazel Hall (G.C. 30) William Holmes 104, 105
25 Mary Mattis (G.C. 31) William Holmes 105, 106
26 Dan Mattis (G.C. 32) William Holmes 1 66, 107
27. Norma Gomes (G.C. 33) William Holmes 108
28. Marjorie Susee (G.C. 34) William Holmes 108-112
29. Edith Ferry (G.C. 35) William Holmes 108-112
30. Patricia Butler (G.C. 36) William Holmes 108-112
31. Sam Ross (G.C. 37) William Holmes 108-112
32. Margie Wilson (G.C. 38) William Holmes 108-112
33. Fred Wilson (G.C. 39) William Holmes 108-112
34. Ivan Wilson (G.C. 40) William Holmes 110-112,
152-156
35. Joann Holmes (G. C. 41) William Holmes 113-115
36. Claude Keller (G.C. 42) William Holmes 113-115
37 Howard M. Cook (G.C. 43) William Holmes 114-115
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
38. Glenda Rolfs (G.C. 44) William Holmes 114-115
39. Nyla Standridge (G.C. 45) William Holmes 114-115
40. Barbara J. Crawford (G.C 46) William Holmes 114-115
41. Audra Bell (G.C 47) William Holmes 114-115
42. Helen Enos (G.C 48) William Holmes 114-115
43. Donald Prince (G.C. 49) William Holmes 114-1`15
44. John Adlesich (G.C. 50) William Holmes 114-115
45. Mary R. Hatcher (G.C 51) William Holmes 114-115
46. Pauline Herman (G.C. 52) William Holmes 114-115
47. Lloyd Leach (G.C. 53) William Holmes 114-115
48 Naomi Leach (G.C. 54) William Holmes 114-115
49. Elenora Woodward (G.C. 55) William Holmes 115
50. Thomas McMartin (G.C. 56) William Holmes 115, 116
51. Albert Chavez (G.C. 57) William Holmes 138, 139
52. Alice Embrey (G.C. 58) Alice Embrey 158
53. Olive Thomas (G.C. 59) Alice Embrey 159, 160
54. Ina Chastain (G.C. 60) Alice Embrey 160, 161
55. Francis Schluneger (G.C. 61) Alice Embrey 161, 162,
215, 216
56. Viola Williams (G.C. 62) Viola Williams 170
57. Elizabeth Browning (G.C. 63) Glenda Rolfs 221, 222
58. Verna O'Hair (G.C. 64) Glenda Rolfs 222, 223
59. Zelma O'Hair (G.C. 65) Glenda Rolfs 223, 224
60. Carmen Gomez (G.C. 66) Glenda Rolfs and 224, 241,
Zelma O'Hair 242
61. Carrie Andrews (G.C. 67) Zelma O'Hair 225, 241,
242
62. Cecilia Torres (G.C. 68) Cecilia Torres 339-343
63. Doris McIntire (G.C. 69) Stella Satterfield 251, 252
64. Stella Satterfield (G.C. 70) Stella Satterfield 252, 253
65. Mildred Powell (G.C. 71) Mildred Powell 275
66. Mary Zaragosa (G.C. 72) Pat Butler 316
67. Josephine Cesa (G.C. 73) Pat Butler 317
68. Martha Powell (G.C. 74) Ivan Leach 324, 325
69. Elizabeth Siemens (G.C. 75) Ivan Leach 326