Tri-City Meats, Inc.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 768 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tri-City Meats, Inc. and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO, Local No. 368. Case 19-CA-8821
August 30, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On February 28, 1977, Administrative Law Judge
Henry S. Sahm issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order, except as modified
below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent Tri-City Meats, Inc., Eagle, Idaho, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Add the following as paragraph l(b):
"(b) In any like or related manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed under Section 7 of the
National Labor Relations Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
z The Administrative Law Judge incorrectly finds that Teddy Starr filed
"both a representation petition and RM petition." The record reveals that
Starr did however file an RD petition.
We agree with the Administrative Law Judge's conclusion that Respon-
dent has refused to bargain in violation of Sec. 8(aX5) and (1) of the Act. In
so doing, however, we rely on Respondent's failure to meet the burden of
introducing affirmative evidence proving the Union's lack of majority at the
time of recognition. See, e.g., E. L Rice and Company of Southgate, Inc., 213
NLRB 746 (1974); Mosi & Son Trucking, Inc., 197 NLRB 198 (1972).
231 NLRB No. 118
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act and has ordered us to
post this notice.
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refuse to do any or all these things.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Amal-
gamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local No. 368, as the
exclusive representative of our employees en-
gaged in the handling and processing of meat and
meat products at our Eagle, Idaho, plant, exclud-
ing all other employees, office clerical employees,
guards and supervisors as defined in the National
Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed under
Section 7 of the National Labor Relations Act.
WE WILL, upon request, bargain with the
above-named labor organization as the exclusive
representative of all the employees in the above-
described unit with respect to rates of pay, wages,
hours, and other terms and if an understanding is
reached, embody such understanding in a signed
agreement.
TRI.CITY MEATS, INC.
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Administrative Law Judge: This
proceeding was heard at Boise, Idaho, on January 10, 1977,
768
TRI-CITY MEATS
based on a charge filed by the Union and a complaint
issued on August 31, 1976.1 The complaint alleges that
Respondent Tri-City Meats, Inc., called the Company,
violated Section 8(a)(5) by its refusal of the Union's request
to recognize it and to bargain. The Respondent Company's
answer admits that its vice president, Walt Drewry, signed
a letter purporting to be a recognition by him of the said
Union. However, Respondent's answer denies that Drewry
fully knew and understood the contents and meaning of
this letter at the time it was presented and signed by him.
Only Respondent filed a brief on February 7, 1977.
Upon the entire record in this proceeding, including my
observation of the witnesses and consideration of the
briefs, there are hereby made the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent Tri-City Meats, Inc., is an Idaho corpora-
tion located at Eagle, Idaho, where it is engaged in
processing and selling meat products. During the past year
it has purchased and received meats, meat products, and
other goods and materials valued in excess of $50,000
which were transported to its plants in Eagle, Idaho, from
States outside of Idaho. Respondent admits the foregoing
allegations. Accordingly, it is found that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Charging Party, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, Local
No. 368, is a labor organization within the meaning of
Section 2(5) of the Act.
The Sequence of Events
Sam Nettinga, secretary-treasurer of the Charging Party
Union, received telephone calls from two or three employ-
ees of the Respondent Company between May 10 and 12
inquiring as to the procedure necessary to have the Union
become their collective-bargaining representative. A meet-
ing was arranged for the evening of May 17, at the Union's
local offices. Of Respondent's 19 employees, 14 attended.
At the meeting, Nettinga addressed the employees regard-
ing the Union's virtues, and the advantages which would
accrue to them should they select the Union as their
collective-bargaining representative. Union authorization
cards were distributed and each of the 14 employees in
attendance signed one. Upon witnessing the signatures,
Nettinga announced that he would file a representation
petition with the NLRB, which he subsequently did.
On May 18 the Union mailed a letter to Jerry Hetrick,
president of Respondent Company. The letter informed
Hetrick that a majority of the Company's employees had
designated the Union as their representative for purposes
of collective bargaining, and requested that the Company
recognize the Union as the representative of its employees
in the appropriate unit. In addition, the letter asserted that
the Union had information indicating that the Company
had no good-faith doubt as to the Union's majority status.
To obviate any questions of majority status, the Union
offered to show the Company the employees' signed
authorization cards in the presence of an impartial third
party for the purpose of checking the authenticity and
validity of said authorization cards against company
personnel and payroll records.
On May 21, Walter Drewry, vice president and "half
owner" of Respondent, signed "for the Company," the
following writing (hereafter referred to as the "To Whom It
May Concern" letter):
TO WHOM IT MAY CONCERN
Tri-City Meats, Inc. of Eagle, Idaho agrees to recognize
Local 368 of the Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO and
bargain with them concerning wages, hours and
working conditions for the employees engaged in the
handling and processing of meat and meat products at
the employer's plant located in Eagle, Idaho.
On May 25, the Idaho Employers Council, by its
Executive Secretary Thomas H. Hazzard, mailed a letter to
the Regional Director stating that the Council represents
the Respondent Tri-City Meats, Inc. Attached to this letter
was a "notice of appearance," interstate commerce data,
and a list naming the Company's employees and the duties
performed by them.
By letter dated June 2, Respondent filed an RM petition
on June 4, with the Regional Director for Region 19. The
accompanying letter stated that the Company had a good-
faith doubt that the Union represented a majority of its
employees and requested a secret ballot election.
Also on June 4, Walter Drewry, Respondent's vice
president, "revoked" his "To Whom It May Concern"
letter.
The Idaho Employers Council, by letter dated June II,
notified the Union as follows:
This is to advise that we represent Tri-City Meats, Inc.,
Eagle, Idaho in labor relations matters. Your letter of
June 4, 1976 addressed to Mr. Walt Drewry has been
referred to us.
The employer, Tri-City Meats, Inc., has a good faith
doubt that your Union does in fact represent a majority
of its employees in their establishment at Eagle, Idaho.
It is our firm opinion that the best way to resolve this
question of representation is by a secret ballot election
conducted by the National Labor Relations Board as
provided in Section 9 of the National Labor Relations
Act.
To this end we have filed an RM petition, Case No. 19-
RM-1323, requesting that an election be conducted by
Region 19 of the Board. This is in accordance with the
rights provided to employees in Section 7 of the
National Labor Relations Act.
I All dates are 1976 unless otherwise specified.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We anticipate your cooperation in the conduct of this
election so that it may proceed promptly and without
interference. Tri-City Meats, Inc., and we as their
representative, will be guided by the outcome of this
election in regard to negotiations with your Union.
On June 17, Walter L. Drewry, vice president of the
Company, wrote the following letter to the Union:
Dear Mr. Nettinga:
Late in the afternoon of Friday, May 21, 1976, you and
two of your associates called on me at a time when I
was quite busy with several customers. You presented
me with a typewritten document explaining, as I recall,
that this was but an acknowledgement that you are
calling on me as a representative and in behalf of your
Union. Relying upon this explanation I signed this
without reading it and continued with my customers.
As the document is actually much different than my
understanding of same at the time you presented it to
me, I hereby revoke my signature on the document
which I signed at your request on May 21, 1976, and
request that you return the original copy which I signed
to me at once.
The position of my Company, Tri-City Meats, Inc., is
as expressed in the letter of June 11, 1976, from our
representative, Thomas H. Hazzard, to Mr. Elvin
Hightower of your Union. I am surprised at your
attempt to demand recognition without a secret ballot
election. This denies our employees the rights provided
to them in Section 7 of the National Labor Relations
Act.
On June 18, the Regional Director notified the Respon-
dent that he was dismissing its RM petition because the
Company had recognized the Union. The Company
appealed to the Board on June 28. The Board affirmed the
Regional Director's ruling on August 4.
The Union telephoned Respondent on August 9, request-
ing that bargaining negotiations commence. The same day
the Respondent notified the Union in writing that "the
agreement to recognize signed by Walter Drewry, as the
result of a misunderstanding on May 21, 1976, was
rescinded on June 17, 1976 and is no longer a valid basis
for demanding recognition." Respondent again requested
that an election be held. On August 13, the Union filed a
charge against Respondent alleging that, on August 9, the
Employer "withdrew recognition" which had been previ-
ously granted on May 21.
On August 27, the Regional Director acknowledged
receipt of an appearance notice in this proceeding from
Elbert Shaw, "compliance consultant," and wrote to Mr.
Shaw as follows:
[I]t is my understanding that the Employer withdrew
from the recognition agreement it executed on the basis
that it was mislead into signing the agreement by the
union representatives involved who asserted that the
document proffered for execution was merely an
acknowledgment that they had been at the plant on the
day in question. It is my further understanding that the
Employer now refuses to commence collective bargain-
ing with the Union and takes the position that it will
not bargain until the Union is certified.
On August 31, a complaint issued alleging a refusal to
bargain in violation of Section 8(aX5) of the Act.
In a letter dated September 9, Teddy Starr, and I I other
employees who had signed union cards on May 17, wrote
to the Regional Director that they no longer wanted to be
represented by the Union. Approximately a month later,
on October 8, Starr filed a decertification petition (RD)
asserting that a substantial number of the Company's
employees no longer desired to be represented by the
Union. The RD petition was dismissed by the Regional
Director as being untimely filed in view of the fact that a
complaint had issued on August 31.
Starr appealed to the Board, alleging, inter alia, in a
typewritten letter that the Union had "misrepresent[ed] it's
self in trying to sign up the employees of [Respondent]."
This letter continues as follows:
The fact is that the employee's were not told everything
we needed to know about the Union, it's policy and it's
power to protect it's members. We were handed cards
to fill out and told this was just a way of the Union
knowing who was present at the first meeting we had
with the Union and it's Representative, Sam Nettinga,
in May or June, 1976. We were told that the signing of
these cards would in no way obligate us to join the
Union, and that this would protect us from being
harassed by our Employer, Tri-City Meats, Inc., for a
period of six weeks. Now I understand we have no
choice in the matter.
At a meeting called the day before the 4th of July
holiday we were asked to strike Tri-City Meats, Inc., to
show them we could disrupt the operation of the plant
if they did not negotiate a contract with the Union on
our behalf. I have never been told about or shown or
helped to work out an agreement to present to Tri-City
Meats, Inc., on our behalf. So why strike for nothing?
At the strike meeting we were not told that if we strike
we could be fired for it and replaced by other people. I
must say here that we, the Employee's, did not ask
about this, reason being we were made to believe, by
misleading statements from the Union officials, that
this could not happen.
Three weeks after the strike attempt, a meeting was
called in Tri-City Meats parking area, by Elvin
Hightower, of the Union, and we were asked, at that
time by Mr. Hightower, if we still wanted the union in.
At this time Mr. Hightower was told no, that there
wasn't enough support among the employee's and we
didn't think it would help us. Mr. Hightower then told
us that he was going to put a contract in Tri-City
Meats, Inc., with or without the Employee's help.
In my opinion this course of action, by Union Local
368, is not in my best interests or the interest of the
770
TRI-CITY MEATS
employee's of Tri-City Meats, Inc., with the exception
of two employee's.
I hope this letter is enough to appeal the dismissing of
my petition regarding this matter. I would like to state
that the Employees are aware of this appeal and
support by a 14 to 2 majority.
Respondent Company maintains the position that while
its vice president, Walter L. Drewry, did sign the "To
Whom It May Concern" letter of May 21, he did not know
or understand its contents. Respondent denies awareness
that the letter could be used by the Union to obtain
recognition. Respondent maintains that it had no intention
of recognizing the Union as the collective-bargaining
representative of its employees without prior certification
by the Board following a secret ballot election.
The Testimony 2
Nettinga, the union official, testified that on May 21, he
and Business Agent Elvin Hightower and the Union's
International Representative, Lester Peck, went to Respon-
dent's plant and requested Drewry, vice president of the
Company, to sign the "To Whom It May Concern"
document but not before apprising and explaining to
Drewry "what the document was," and their reason for
requesting him to sign it. Nettinga continued that Drewry
read it in his presence, at which point, according to
Nettinga, he inquired of Drewry whether he wished "to
look at the [union] cards which were signed by the 14
employees and he said there was no need.3 He knew we
represented his people, that wasn't the question. We told
him that he put the thing to bed. We would talk to him
upon our return in 3 weeks from a convention our union
was holding in San Francisco." Nettinga also testified that
after Drewry signed the "To Whom It May Concern"
writing, Drewry posted it on the plant bulletin board on
May 24 and 25.
On cross-examination, Nettinga testified that at the
union organizational meeting on May 17, one of the
employees present inquired whether the employees could
be terminated for signing cards. Nettinga responded: "We
said that the signature on that card did give them some
protection with the Board because they have the right to
organize and bargain collectively." When asked if he told
the 14 employees at the May 17 organizational meeting
that the purpose in obtaining their signatures on the union
cards was to protect them for 6 weeks from their employer
harassing them until an election could be held, Nettinga
testified: "I think the only statement that could have been
made in regard to six weeks is that was the approximate
2 Those witnesses who testified as to what occurred and what was said
have been quoted herein, in haec verba. copiously because Respondent's
representative based virtually his entire defense with respect to what was
stated on May 21 when Drewry signed the "To Whom It May Concern"
writing and what Nettinga and Hightower told the employees at the May 17
and July I meetings attended by the employees. The same consideration
applies, also, with respect to the General Counsel's version as to what was
said at these same meetings on said dates. In the interests of accuracy, all
those witnesses' testimony has been quoted in ex.ienso to avoid the
ambiguities and impreciseness created by paraphrasing. In fact, the flavor
time it would take to get an election, provided there were
no hang-ups by either side."
Regarding his conversation with Drewry on May 21,
when Drewry signed the writing in dispute here, Nettinga
was asked if he informed Drewry that if he signed the
document he was "granting recognition to the union,"
Nettinga answered: "It was our understanding, because of
the phone conversation we had on [May] the 19th from
Mr. Drewry that there was no question of our representa-
tion of those people. .... We told him that this [To Whom
It May Concern] letter would give us the bargaining power
in [his] plant and we would be prepared to bargain with
him upon our return from [the union convention].
Elvin Hightower, a union business agent, testified that on
May 19, Drewry phoned him at the union office at which
time they discussed the writing. Hightower stated that
Drewry had assured him "that there would be no problem.
He did recognize that we had the majority of the people
and they did want us to represent them and that he had
been a member of the Local [herein] before and would see
no problem at that point in reaching a contract. The only
thing he had in concern at that point was whether or not
we had a contract to suit his needs because he indicated he
was not a retail establishment or a packing house
establishment . ... The only thing I told him at that point
was we would submit our proposal, sit down and negotiate
a contract that would be satisfactory to both sides."
Hightower testified that on May 26, he met with the 14
employees who had signed union authorization cards in
order "to draw up what we had as our demands to the
company for a contract." After some discussion, a
proposed contract was drafted which was mailed to
Respondent on June 4.
Hightower testified that on May 21, at Drewry's office,
the "To Whom It May Concern" letter was explained to
Drewry and that Drewry "indicated at that point that he
did recognize that we represented the majority of the
people and had no doubt on that point." Hightower added
that Drewry did not ask to see the employees' signed union
cards, stating, "We offered them to him and he indicated
he didn't doubt us representing the majority" whereupon
Drewry signed the document.
Lester Peck, International representative from Seattle,
Washington, testified as to what transpired at the May 21
meeting with Drewry. His account corroborated that of
Nettinga and Hightower.
Kirk J. Sanders, who was employed by Respondent from
June 1975 until approximately October 1976, also corrobo-
rated Nettinga's testimony as to what occurred at the May
17 union organizational meeting. He testified that the "To
Whom It May Concern" letter was posted on the
Company's bulletin board, along with a notice of a union
meeting which was to be held on May 26. Sanders, on
and nuances of the witnesses who testified with respect to the salient
incidents was sometimes colorful, and, not only subject to different
impressions and interpretations which are frequently incapable of literal
translation or interlineal rewording so that even a metaphrase might he
considered imprecise and too loose.
3 The authorization cards read in pertinent part: "I hereby authorize [the
Union I to represent me and bargain collectively with my employer in my
behalf and to negotiate all agreements concerning wages, hours and all other
conditions of employment."
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-examination, stated that at the Union's May 17
organizational meeting, the union officials "explained to us
what would have to be gone through if he we did strike ...
and they explained to us that the signature on the cards
would mean that we would have representation by the
union." When asked whether he could recall "any mention
of a six week period as a reason for signing the cards" he
answered: "I believe it was discussed that the six week
period, we would have . . . protection of some type from
the Board that would help in our negotiations with the
employer." He denied that the "protection" matter was the
primary reason for requesting them to sign the cards, but
rather the "primary consideration" was that the Union
would represent them in negotiating a contract.
Each employee called as a witness for the Respondent
was asked on direct examination what the union officials
told them as to the consequence of their signing a union
authorization card. Each testified, in substance, that the
purpose of the cards was to enable the Union to obtain
recognition and to protect the employees from reprisals by
the Employer for approximately 6 weeks until a Board
election would be held to determine whether or not they
wanted to be represented by the Union.
Teddy Starr, an employee, wrote a letter to the Board on
September 9, and also filed a decertification petition on
October 8. When asked by Respondent's representative
what he intended to accomplish by signing a union card on
May 17, he answered: "Authorizing the union to go into
preliminary negotiations on our behalf with our employers
and mostly to protect myself from being fired or harassed
on the job."
When asked on direct what his purpose was in writing a
letter to the Board and also filing a decertification petition,
Starr's testimony reads as follows:
To protest the way in which the union was trying to
organize Tri-City Meats. .... I thought they misrepre-
sented us. I thought they in effect told us one thing and
that wasn't the way it was. They led us to believe
something else. .... Well, we were told that by signing
the cards, basically, the authorization cards, that we
would be protected for six weeks from our employers
from being harassed and I don't know what was to
happen at the end of that time. We also discussed
various aspects of belonging to the union, what
protection we would have if we belonged to the union,
at the original meeting of the 17th. Some of the
questions that were asked were not fully answered or
were answered in a roundabout fashion that led me to
believe that my best interest was not at stake in joining
the union at this time. We had no bargaining power. I
really didn't feel we had the rights that were explained
to us that we had with the union, that the union
officials explained to us. .... [I hoped] [t]o either get
the union stopped or get us an election to decide if we
wanted one ourselves. I figured at the time it was
passed, it was taken out of our hands. It was drifting
down to us, the employees at Tri-City Meats, we really
didn't have the control over [whether] the union was
coming in or not. It was out of our hands. It wasn't up
to us anymore.
Starr concluded his direct examination by admitting that
the union officials assured them that when contract
proposals were submitted to the Respondent Employer
that the Union would consult the employees first and be
guided by their wishes. On cross-examination, Starr
acknowledged that he had not read the union card before
signing it.
Randy Hetrick, another employee, testified that he "felt
as an employee that he had been misrepresented by the
union and the letter was to straighten it out . . . or to get
away from the union because of the misrepresentation."
Allen Gilbert, an employee, testified that the union
officials at the May 17 organizational meeting explained
the benefits that union membership would give them and
when they signed the cards, it meant the Union would
represent them in obtaining recognition and that as long as
they were so represented the employees "couldn't be
harassed by our employer ... [and] if the employer didn't
recognize these cards within the six weeks then we would
have a vote, I believe, to either go with the union and us to
back up the union, or to forget it." Gilbert stated that at a
July I meeting at the union hall, the union officials
submitted a draft of a proposed contract to the employees
for their consideration and stated that if there was anything
in the draft that they did not approve of, they should voice
their objections and that such matters would then be
discussed by all present. Gilbert also testified, in answer to
leading questions4 on direct examination by Respondent's
representative, that a strike was considered and that when
he was asked how he felt about it, he responded that he
"couldn't afford [to] strike." When asked if he was familiar
with employee Starr's letter of September 9,5 and what he
hoped to accomplish by signing it, he testified that: "Well,
come to find out getting a union in and everything would
be one heck of a mess so I just decided the best thing to do
was get out of it."
Burt Morgan, also an employee who signed a union card,
testified: "The way I understood it is if we signed the card
to let our boss know that [the Union] represented the
employees at Tri-City Meats and then after six weeks if he
didn't recognize [the Union] then [the employees] would
vote and let them [Respondent] know that the Union did
have representation of us." Morgan was also present at the
meeting on July I of the employees with the union officials
at a restaurant and that Hightower, a union official-
[W]ent down there and told us the best thing we could
do would be to strike and there wasn't enough of us,
there was two or three other people that were there, it
wasn't even enough for us. .... We didn't even have a
majority otherwise and the ones that were there at the
meetings, that they couldn't afford it. There was no way
they could make it on a strike so we decided, and then
they told us there was only one other way and that was
to send something into Washington. Don't take this
exact but they were supposed to go some other way, but
See Liberty Coach Company, Inc., 128 NLRB 160, 162, fn. 7 (1960).
772
5 Resp. Exh. 16.
TRI-CITY MEATS
we didn't have enough people to strike.... We
recognized we didn't have enough people to strike so
we just said wait, it would take us a certain length of
time before they could do anything else.
Alice Ramirez, a company witness, testified that she
signed a union card at the May 17 organizational meeting.
The following colloquy then ensued between her and
Respondent's representative:
Q. And was the principal reason for the signing of
that card to be protection afforded for a six weeks
period.
A. Yes sir. 6
She was also asked: "And what is your impression of what
the employees were attempting to do with [the letter of
Starr, dated September 9, which he sent to the Regional
Office]" to which Ramirez answered: "Well, I read it and
then after I finished reading it, I just gave up on the union
and I thought why fight more so I just went ahead and
joined them." 7
Albert Ramirez, husband of Alice, the prior witness,
testified he signed a union card at the May 17 meeting at
the union hall. He was asked the following question by
Respondent's representative:
Q. Was the primary reason for signing that card the
protection that would be afforded for a six week period
if you did sign.
A. Uh-huh. 8
The witness testified that at the July 1 meeting between
the employees and union officials, the latter "wanted [us]
to strike but we decided not to go because we don't have
enough people to back us up." Ramirez continued that
when he signed the September 9 letter, at the request of
Starr, which was mailed to the Regional Director, that he
was trying to block the plant "go[ing] union."
Ruby Robinett testified in response to a leading question
that "the primary reason" given her by the Union for
signing a union card was that it would give her "a
protection period of six weeks .... " She testified that, at
the July I restaurant meeting, no vote was taken because so
few employees attended. "I didn't figure there was much
use of even pushing it any further." She subsequently
signed the September 9 letter drafted by employee Starr.
Richard Cloudt, an employee, was called as a witness by
the Respondent Company, and was asked: "Was the
primary reason for signing that card given as a protection
period of six weeks?" He answered: "I did understand it
would give us some legal protection against any harass-
ment but I cannot remember of any six weeks period. The
only six weeks period I remember is [the union official]
said that if we were not recognized [by] the employers that
in six weeks we could take a vote or something like that. It
would take at least six weeks to do this." When asked by
Respondent's representative if the union official explained
to those present at the May 17 organizational meeting
h See Liberty Coach Co., supra.
7 See quoted letter of Starr, supra.
Liberir Coach. supra.
"that the signing of the card might be used to prevent such
an election," the witness replied in the negative. He
concluded his testimony by stating that it was his
understanding that Starr drafted the September 9 letter
(which Cloudt signed) because "it seems as though
everybody that wanted [a union] was pretty fed up with it
so they just was trying to get out of it."
When Walt Drewry, who stated he was "vice president
and half owner" of Tri-City Meats, Inc., was called as a
witness, his representative prefaced his direct examination
by stating: "This witness is under a doctor's care for a
nervous condition and he is under medication. He is
entirely lucid but I have promised we would make his stay
short and lacking in pressure." Drewry testified that two
union officials, Nettinga and Hightower, came to his plant
on May 21, "and they had this piece of paper for me to
sign. They said it was nothing more than a formality ...
They introduced themselves as being from the union and
wanted me to recognize them. The way I took it, and I
probably took it wrong, that I was recognizing the fact that
our people had been to see them."
Q. Did they explain to you that by so signing, your
employees would not now have an opportunity to vote?
A. They explained nothing to me.
Drewry's testimony continues as follows:
And they said something about this being a formality,
we want you to know that your people have contacted
us, I said I am aware of that. They said will you sign
this piece of paper to this effect. I said, well, you are
standing here why not.
Q. So when you signed it, what did you think you
were doing?9
A. I felt that all I was doing was recognizing the
fact that I knew what was going on, that the people had
been to see the Union.
Q. That somebody was trying to organize your
employees.
A. Right. That's all.
Q. Did you think you were recognizing the Union?
A. I would never have signed if I would have
recognized it. I know nothing about it. Later on, I told
Mr. Nettinga that I knew nothing about the union. At
that time I didn't tell him but at the next meeting I did.
So you better let somebody else answer the questions.
Drewry testified that he "immediately" wrote a letter to
the Union which reads, in pertinent part, that "[he] signed
this [document] without reading it." However, this letter
was not sent to the Union until a month later. i
Drewry acknowledged that he knew prior to May 21,
when he signed the Union's "To Whom It May Concern"
letter, that the Union had been soliciting his employees to
authorize the Union to represent them.
" This has reference to Resp. Exh. 3 which Drewry signed on May 21.
i' See Resp. Exh. 9.
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Credibility, Discussion, and Conclusions
After observing the witnesses, analyzing the record and
inferences to be drawn therefrom, and reconciling where
possible the conflicting evidence, I have made credibility
findings, where necessary, with respect to the substantive
testimony of the witnesses. Conclusions have been reached
also which are based on observation of the witnesses with
respect to the accuracy of their memories, their comprehen-
sion, and their general demeanor on the stand in answering
the questions put to them. I must choose between
discordant versions of witnesses whom I have seen because
the record does not reveal that part of the evidence which
may have determined his choice. One court described it as
"[findings] based on that part of the evidence which the
printed words do not preserve. Often that is the most
telling part on the issue of veracity."" "[C]redibility
findings may rest entirely upon evidence through observa-
tion which words do not, and could not, either preserve or
describe." 12 By this discussion of the evaluation placed on
the demeanor of a witness in testifying, it is not intended to
convey the impression that consideration was given
exclusively to this type of evidence in this proceeding in
determining credibility.
The assertion of Respondent's representative that Walt
Drewry was suffering from a "nervous condition" at the
time he testified and Drewry's testimony, supra, that he was
completely unaware of what he was signing when the union
officials came to his office on May 21, stating that the
Union represented 14 of his employees, offering to show
him the employees' signed authorization cards which he
declined, stating he deemed it unnecessary, strains one's
credulity in the context of them. Also, casting doubt on the
veracity of Drewry's testimony in which he pleaded
ignorance of what the document meant that he signed on
May 21, is the fact that not only is he actively engaged in
managing the day-to-day affairs of this Company but also
he was put on notice before May 21 that the Union was
then in the process of attempting to organize his employ-
ees, and then his compounding this inexcusable negligence
by refusing to accept the Union's proffer of the employees'
14 authorization cards. It also strains one's credulity to
believe that Drewry, the one-half owner of the Company, a
business of some size, having the executive responsibilities
he had, would be so incredibly naive as to senselessly
compromise his Company by alleging that he did not know
what he was signing. On the contrary, it is believed this is a
case of an ex post facto defense, lacking in veracity. Belying
his testimony that he was totally unaware of what he was
doing when he signed this writing, is the cogent fact that it
consisted of only five typewritten lines stating in simple
language that he agrees to recognize and bargain with the
Union concerning his production employees' wages and
working conditions.' 3 If Drewry has the capacity to
operate this plant of 19 production employees and the sale
of the products made there, it would appear, under the
attendant circumstances here present, that he knew and
understood the contents of this brief writing, consisting of
one sentence. His testimony that he did not understand the
i N.L.R.B. v. Lniverlal Camera Corp.. 190 F.2d 429, 430 (C.A. 2, 1951).
12 RoadH.a` Elxpress, Inc., 108 NLRB 874. 875 (1954).
paper when he signed it is inconsistent with its simplicity,
especially when one considers the responsible, if not
complex, nature of his duties and responsibilities as a
management official and half-owner of Respondent.
Moreover, there was credible testimony by Nettinga,
Peck, and Hightower, the union officials, to the effect that
the aforementioned "recognition" writing was explained to
Drewry and that Drewry virtually acknowledged the
Union's majority status when he deemed it unnecessary to
examine the employees' signed authorization cards. Insofar
as Drewry's testimony conflicts with the Union's version, it
is discredited.
The same rationale is applicable as to the Respondent's
defense of a good-faith doubt of the Union's majority
status. On the contrary, it is found that Drewry had no
good-faith doubt as evidenced by the uncontroverted
testimony of Nettinga that the "To Whom It May
Concern" letter, signed on May 21 by Drewry, was posted
on the Company's bulletin board 3 or 4 days later, along
with employee Sanders, stating a notice of a union meeting
to be held on May 26 was also on the bulletin board.
Moreover, the Union offered to show him the 14 employ-
ees' authorization cards but he declined to examine them.
Such a factual situation cannot be a valid basis for Drewry
now complaining that he has a good-faith doubt that the
Union represented a majority of the employees when it was
brought about by the actions of Drewry himself, in refusing
to examine the authorization cards.
It will be recalled that many of the employees testified
that when Nettinga spoke to them at the organizational
meeting on May 17, and they signed the union authoriza-
tion cards, that he told them, according to Starr (who was
employed by Respondent only 2 months prior to Drewry
signing the May 21 recognition paper), that if they signed
the union cards they would be protected from harassment
by Respondent and loss of their jobs because of their
interest in the Union. However, when Richard Cloudt was
called by the Respondent Company as a witness, he was
asked on his direct examination the following leading
question: "Was the primary reason for signing that card
given as a protection period of six weeks that would ensue
if you signed it?", he answered that he "understood it
would give us some legal protection against any harass-
ment but I cannot remember of any six weeks period. The
only six weeks period I remember is [Nettinga] said that if
we were not recognized [by] the employers that in six
weeks we would take a vote or something like that. It
would take at least six weeks to do this."
We have here then three different versions of what
Nettinga said to the 14 employees at the May 17
organizational meeting at the union hall. Which witness'
version then is to be credited?
Undeniably, witnesses are on occasion fouled by the air
of partisanship, overzealousness, and other emotions to
which the human flesh is subject. Witnesses do not emerge
from antiseptic surroundings nor do they testify in a
vacuum which protects them from the failings to which the
human mind and spirit are subject. Moreover, unconscious
and unintentional mistakes and honest confusion of a
13 See G.C. Exh. 5.
774
TRI-CITY MEATS
technical subject such as the nuances inherent in whether a
misrepresentation of fact or law was made by Nettinga
when he was extolling the virtues of unionism at the May
17 organizational meeting in an effort to have the
employees sign authorization cards cannot be disputed.
Indeed, the delicate refinements and subtle distinctions as
well as shades of differences which typifies this subject at
times is trying even to those learned in labor law, so that
confusion can understandably creep into the minds of
unlearned auditors.
Furthermore, honest misunderstandings can arise under
such circumstances when it is considered that the employee
witnesses testified from memory as to statements made by
Nettinga 8 months before the hearing in this proceeding
was held and their testimony given. Then too, it must be
remembered that various witnesses may give different
accounts of the same factual situation without being
accused of not telling the truth, because differences may
reasonably be expected when the subject has to do with
semantic interpretations of what they understood a speaker
to say, particularly when a witness is emotionally involved
or, perhaps, will benefit by the outcome of the litigation.
This, it is believed, was reflected in what appears to be a
mistake on the part of some of the Respondent's witnesses
in what they believed the union official was saying to them
at the organizational meeting on May 17, due to their
faulty understanding of the technical legal aspects of what
he was explaining to them.
It would appear that a frequent reason for parties often
misunderstanding one another is not that language is so
constricted or limited but that it is so vast. There is almost
no limit to the number of ways one can describe the same
situation in the context of what was said or heard; and no
two descriptions will be linguistically identical. If there is
also considered the fact that rarely, if ever, do eyewitnesses
to the same incident agree in detail as to what they
observed, it becomes evident that verbal communication is
one of the most complex, fragile, and tenuous links
between experiences that people have. It is not merely that
some experiences involving communications are inexpress-
ible but even those experiences which are expressible are,
in many instances, matters involving not only intangible
imponderables, but also subjective considerations as well.
It is found, therefore, that not only were the authoriza-
tion cards valid but also that they were signed without any
misrepresentations by the Union.
Such authorization cards will be considered a valid
indicator of majority status unless it is proven that the
employee was told that the card was to be used solely for
the purpose of obtaining an election. As stated by the
Supreme Court in N.LR.B. v. Gissel Packing Co., Inc., et
at., 395 U.S. 575, 606-607 (1969):
[W]e think it sufficient to point out that employees
should be bound by the clear language of what they
sign unless that language is deliberately and clearly
canceled by a union adherent with words calculated to
direct the signer to disregard and forget the language
above his signature. There is nothing inconsistent in
handing an employee a card that says the signer
authorizes the union to represent him and then telling
him that the card will probably be used first to get an
election. Elections have been, after all, and will
continue to be, held in the vast majority of cases; the
union will still have to have the signatures of 30% of the
employees when an employer rejects a bargaining
demand and insists that the union seek an election. We
cannot agree with the employers here that employees as
a rule are too unsophisticated to be bound by what they
sign unless expressly told that their act of signing
represents something else. In addition to approving the
use of cards, of course, Congress has expressly
authorized reliance on employee signatures alone in
other areas of labor relations, even where criminal
sanctions hang in the balance, and we should not act
hastily in disregarding congressional judgments that
employees can be counted on to take responsibility for
their acts.
Some imprecision in the mind of the signatory employees
as to the legal thrust of what was told them at the May 17
meeting is understandable. Yet, given the unambiguous
single purpose which appears on the face of the union cards
herein, which clearly state that they are designations of the
Union as the collective-bargaining representative of the
signer, there is no basis for a good-faith doubt of their
validity.
This pragmatic example, however, does not account for a
facet in this proceeding which is indeed strange. Starr, who
was most recently employed by Respondent for a mere 2
months before the May 17 meeting, was the most zealous
proponent of all the employees (some of whom worked for
Respondent as long as 7 years) in attempting to oust the
Union and disavow the validity of the authorization cards
they had signed in May. This is evidenced by Starr writing
a letter on September 9 to the Regional Director, to which
he obtained the signatures of I I of his coworkers and then
filing an RM petition in October. For some reason not
apparent in the record, it would seem that Starr's version of
what Nettinga, the union official, stated to the employees
on May 17, is not what Starr testified to and also what he
alleged in his September 9 letter and October RM petition
to the Board. It is believed, therefore, that Cloudt's version
is more reasonable in that he understood Nettinga to state
that, by filing a representation petition with the Board, the
employees would be protected from any reprisals by their
Employer. Cloudt explained that Nettinga mentioned a 6-
week period, not in conjunction with the petition, but
rather in stating to them that if recognition was not
forthcoming from Respondent upon the Union's filing a
representation petition with the Board, then an election
would be held by the Regional Director in approximately 6
weeks.
Where a union has been designated by a majority of the
employees in an appropriate unit, the Board and courts
have uniformly held that absent a good-faith doubt as to
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union's majority status, the employer is obligated to
bargain. 4 An employer confronted with a demand for
recognition based upon authorization cards is justified in
withholding recognition pending the result of a certifica-
tion election, but if there is no "hint of impropriety in the
solicitation or execution of the cards" and "the [Respon-
dent] makes no attempt to assert a bona fide doubt," 15 the
employer is not justified in withholding recognition. 16
The Respondent in the case subjudice had no valid basis
for its refusal to recognize and bargain with the Union
when so requested on May 21, 1976, at which time the
Union was in fact the majority representative of the unit
employees. And when the Union offered to prove its
majority status, Drewry stated he was not interested in
seeing the 14 employees' authorization cards.17 Equally
cogent is the "To Whom It May Concern" writing, signed
by Drewry on May 21, being posted on the company
bulletin board 3 or 4 days later, along with a union notice
of a meeting on May 26. It is clear that at the time the
Union sought recognition from the Company, it had been
designated collective-bargaining representative by 14 of its
19 unit employees. It is also not too unreasonable to
assume under the facts herein that Starr, the most recent
employee hired by Respondent in "the middle of March,"
displayed a zeal in attempting to abort the Union's
objectives which might indicate that he was encouraged to
do so by those who had the most to gain if the Union were
not successful in organizing the employees. Finally, the
actions of the Respondent, supplemented by Starr's filing
both a representation petition and RM petition, evidences
not only a rejection of the principles of collective
bargaining but also a desire to gain time in which to
dissipate the Union's majority. Such actions are proscribed.
Respondent for all the reasons explicated supra, thereby
violated Section 8(a)(5) of the Act.' 8
II. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, as set forth above, it will be recommended that it
cease and desist therefrom and take affirmative action, set
forth below, found necessary and designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. The following unit is appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All employees engaged in the handling and processing
of meat and meat products at the employer's plant
14 United Mine Workers of America, et al. v. Arkansas Oak Flooring Co.,
351 U.S. 62, 71-72 (1956); N.L.R.B. v. Lifetime Door Company, 390 F.2d
272. 276 (C.A. 4, 1968).
15 N.L.R.B. v. Lifetime Door Co., supra at 275, 276.
"I See N.L.R.B. v. Sehon Stevenson & Co., Inc., 386 F.2d 551, 553-554
(C.A. 4, 1967); N.LR.B. v. Preiser Scientific, Inc., 387 F.2d 143, 144 (C.A. 4,
1967).
m? See N.LR.B. v. The Sinclair Company, 397 F.2d 157 (1968), affd. sub
nom. N. L.R. B. v. Gissel Packing Co., 395 U.S. 575.
IX Validity of union authorization cards: See Levi Strauss d Co., 172
NLRB 732 (1968); McEwen Manufacturing Company, 172 NLRB 990
(1968); Aaron Brothers Company of California, 158 NLRB 1077 (1966);
Winn-Dixie Stores, Inc., Tampa Division, 166 NLRB 227 (1967).
located in Eagle, Idaho, excluding office clerical
employees, supervisors, salesmen and guards as defined
by the Act.
2. At all times since May 21, 1976, the Union has been
the exclusive representative of all the employees in the
aforesaid unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
3. By refusing on and after May 21, 1976, to bargain
collectively with the Union, Respondent has engaged in
and is engaging in, an unfair labor practice within the
meaning of Section 8(aX)(5) of the Act.
Having found that Respondent violated Section 8(a)(5)
when it violated the rights guaranteed to employees to
organize and bargain collectively, it shall be recommended
that there issue the following recommended:
ORDER19
The Respondent, Tri-City Meats, Inc., Eagle, Idaho, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment with Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local No. 368, as
the exclusive representative of its employees in the
following appropriate unit:
All employees engaged in the handling and processing
of meat and meat products at the employer's plant
located in Eagle, Idaho, excluding office clerical
employees, supervisors, salesmen and guards as defined
by the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain with above-named labor
organization as the exclusive representative of all the
employees in the above-described unit with respect to rates
of pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at Respondent's plant premises in Eagle, Idaho,
copies of the attached notice marked "Appendix."20
Copies of said notice, on forms provided by the Regional
Director for Region 19 of the Board, after being duly
signed by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
20 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
776
TRI-CITY MEATS
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
m