L'Eggs Products, Incorporated petitions for review of an order of the National Labor Relations Board, and the Board cross-petitions for enforcement of its order. The Board adopted the findings, conclusions and proposed order of its Administrative Law Judge. The decision is reported at 236 N.L.R.B. 354 (1978). We set aside the order in part, affirm it in part, and remand to the Board for further proceedings. We also deny, but refer to the Board on remand, L'Eggs' motion for leave to adduce additional evidence before this court.

I. Background Facts.

L'Eggs is a manufacturer and distributor of women's hosiery. Its products are distinctively packaged and are displayed in such stores as supermarkets and superdrugstores in unique racks which it calls "boutiques." The packaging, the racks, and advertising sell the product. The business of monitoring and replacing stock in the racks and keeping them neat and clean, so that they will attract customers, is conducted by route sales representatives (RSRs) employed by L'Eggs. They are provided with vans and uniforms, and work under the supervision of Area Managers.

The case concerns L'Eggs' sales district covering southern California and part of Nevada, with headquarters in Buena Park, California. At the time in question, there were 40 RSRs in the district, and on January 19, 1976, Retail Clerks Union Local 770 sent to L'Eggs' Western regional manager, Schwaegler, by certified mail, a letter signed by 13 of these RSRs stating that they were "actively engaged in an organizing program to obtain a union contract." The letter concluded "We would caution you to refrain from any interference or restraint of your employees' right to self-organization." It was received by Schwaegler on January 21.

The reaction of L'Eggs was immediate and effective, and resulted in charges filed with the Board that gave rise to this proceeding. The Company's position was stated by its Senior Vice President, Sales and Distribution, Engle, the self-described creator of the business, at a dinner meeting of all the RSRs in the district on February 5, 1976: "It is . . . our intention to oppose this Union and by every lawful and proper means to prevent it from coming into this operation." One question presented is whether the Company went beyond this expressed intention and committed unfair labor practices.

We will state additional facts as we consider each of L'Eggs' principal arguments.

II. The Discharges.

Five employees were discharged, one, RSR LuAnn Morgan, on November 20, 1975, one, RSR Jackie Wade Smith, on January 26, 1976, and three others, not RSRs, on January 27, 1976. As to one of the three, the general counsel dropped the charge; as to the other two, the AL Judge found the discharges lawful. The Board has accepted the AL Judge's decision as to these three employees. It also accepted the decision that L'Eggs discharged Morgan and Smith because of their union activities.

A. The Standard for Decision.

We cannot overturn the Board's decision if it is supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 487-488, 71 S. Ct. 456, 463-464, 95 L. Ed. 456. Nor can we reject the Board's choice between fairly conflicting views even though we would have made a different choice had the matter been before us originally. Id. See, also, NLRB v. Walton Mfg. Co., 1962, 369 U.S. 404, 405, 82 S. Ct. 853, 854, 7 L. Ed. 2d 829.

Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), makes it an unfair labor practice for an employer "by discrimination in regard to . . . tenure of employment to . . . discourage membership in any labor organization." Firing an employee for supporting a union violates this provision.

An employer may discharge an employee for good cause, bad cause, or no cause at all, without violating § 8(a)(3), as long as his motivation is not antiunion discrimination and the discharge does not punish activities protected by the Act, NLRB v. Ayer Lar Sanitarium, 9 Cir., 1970, 436 F.2d 45, 49. It follows that the Board has the burden of proving that a discharge was motivated by antiunion animus. NLRB v. Klaue, 9 Cir., 1975, 523 F.2d 410, 413. A business reason for a discharge cannot be used as a pretext. Ayer Lar Sanitarium, supra, 436 F.2d at 50. A discharge for which the employer has a justifiable ground violates § 8(a)(3) if it is in fact motivated by antiunion sentiment. NLRB v. Western Clinical Laboratory, Inc., 9 Cir., 1978, 571 F.2d 457, 459. Proof that the employer knew about the employee's union activities is a prerequisite to a finding that a discharge violates § 8(a)(3). Brooks v. NLRB, 9 Cir., 1976, 538 F.2d 260, 261; NLRB v. Klaue, supra, 523 F.2d at 413.

In this circuit, the test for determining whether a discharge violates § 8(a) (3) has changed over the last several years. In NLRB v. Ayer Lar Sanitarium, supra, 436 F.2d at 50, we said that the "test is whether the business reason or the . . . union activity is the moving cause behind the discharge. . . . In other words, would this employee have been discharged but for his or her union activity?" (emphasis in original). In NLRB v. Central Press of California, 9 Cir., 1975, 527 F.2d 1156, 1158, we upheld the Board's finding of a violation because it found that a discharge was at least partially motivated by the union sympathy of the employee, (citing similar language in NLRB v. Ayer Lar Sanitarium, supra.) In Western Exterminator Co. v. NLRB, 9 Cir., 1977, 565 F.2d 1114, 1118, however, we said that where a discharge is motivated by both a legitimate business consideration and protected union activity, the test is which "is the moving cause behind the discharge" (emphasis added). We also said, "(w)here a party has two motives, one permissible and the other impermissible, the better rule is . . . that the improper motive must be shown to have been the dominant one." (emphasis added) Accord: Hambre Hombre Enterprises, Inc. v. NLRB, 9 Cir., 1978, 581 F.2d 204, 207 n.4; Stephenson v. NLRB, 9 Cir., 1980, 614 F.2d 1210, 1213; NLRB v. BigHorn Beverage, 9 Cir., 1980, 614 F.2d 1238, 1242; NLRB v. Best Products, Inc., 9 Cir., 1980, 618 F.2d 70, (1980); Stephens Institute v. NLRB, 620 F.2d 720 (9 Cir.1980).

There is one recent decision that appears to adopt a less stringent test in discharge cases, NLRB v. Lantz, 9 Cir., 1979, 607 F.2d 290, 299. Lantz distinguishes Western Exterminator Co. as involving "an isolated discharge of a single employee, where the action of the employer was not 'inherently destructive' of § 7 rights." The opinion then cites Portland Willamette Co. v. NLRB, 9 Cir., 1976, 534 F.2d 1331, as listing "examples of inherently destructive activity which included 'permanent discharge for participation in union activities,' " and concluded that inherently destructive activity was involved in Lantz, so that Western Exterminator Co. does not apply. In Lantz we defined the test as that the discharge be "at least partially" for union activity, but that that motivation need not be dominant. We do not understand the distinction made in Lantz because the discharge in Western Exterminator was just as "permanent" as in Lantz. Our latest decisions, cited supra, follow Western Exterminator Co. and do not cite Lantz. We conclude that Lantz should be confined to its facts discharges for seeking to enforce the contract between the employer and the union. That is not involved here. Therefore, in considering the two discharges here involved, we apply the Western Exterminator Co. test.

B. The Discharge of Morgan.

The AL Judge found that Morgan was discharged because of her support of unionism, and the Board adopted his position. L'Eggs mounts a vigorous attack on this decision.1 Its strongest points are two. One is that the discharge occurred on November 20, 1975, well before there was any organized effort in behalf of the union. The other is that Morgan's work performance was poor, and would justify her discharge.

On the other hand, the discharge occurred very soon after L'Eggs received reports that Morgan was interested in unions and would support a union for RSRs at L'Eggs. In the first half of November, 1975, RSRs Morgan, Quigley and Michaels and warehouseman Dennis Potter were at the balance point2 in San Diego. Morgan asked Potter about unions, because her boyfriend was considering a job where there was a union. Nothing was said about a union at L'Eggs. Nevertheless, not long after, Potter received a telephone call from Area Manager Hetherington, Morgan's supervisor, who said that an RSR had told him that Potter had been talking to the RSRs about the union. He asked Potter whether RSRs were trying to organize San Diego and what Morgan had said. Potter said that he did not think that anything was going on, and that one RSR had merely inquired on behalf of her boyfriend.

Morgan had been assigned to a training seminar because her performance rating for October was unsatisfactory. During lunch with other RSRs on Friday, November 14, 1975, Morgan, who was the only San Diego RSR at the seminar, said that RSRs' pay and benefits were inadequate and working conditions poor and suggested that they consider unionization. Another RSR, Arlene Hungate, stated loudly that she would not join a union. That evening, Hungate phoned her Area Manager, Deanna Manning, and said that Morgan had expressed an interest in the Union. Hungate added that she would quit if the Company went union.

On Sunday, November 16, Hetherington phoned RSR Mary Ann O'Malley, who had been present when Morgan discussed unions at the balance point in early November. O'Malley was not a union supporter, and was a good friend of Hetherington. Hetherington asked O'Malley whether she had been approached by anyone in the Union. O'Malley mentioned the balance point conversation and asked why Hetherington wanted to know. Hetherington replied that at the training seminar one RSR had mentioned the Union to another, and the latter had told her superior that she would quit if the Company went union. O'Malley asked whether the second RSR was Majo Michaels. Hetherington said that it was not Michaels, but that a San Diego RSR had told an RSR from another area that if the Company went union, all the San Diego RSRs would join. Morgan was the only San Diego RSR to attend the training seminar, and O'Malley knew this. Hetherington said that his supervisor had told him to find out who had been talking about the Union and to get rid of her. During this conversation, Morgan's name was mentioned. On November 20, Hetherington told Morgan that she was terminated because her work was unsatisfactory.

L'Eggs' position is that the Hetherington-O'Malley conversation did not occur on November 16 but a week later, on November 23, after Morgan was fired, and that Hetherington never said that he had been told by his superior to find out who this girl was and, whoever she was, to get rid of her. All of L'Eggs' officials testified that they knew nothing about Morgan or her union sentiments before the discharge; the officials from Winston-Salem headquarters testified that they had never heard of her until a charge was filed on her behalf in February, 1976.

If the number of witnesses making an assertion were the test, L'Eggs would win, hands down. But neither the AL Judge nor the Board nor this court is required to accept the self-serving declarations of L'Eggs' management personnel. Shattuck Denn Mining Corp. v. NLRB, 9 Cir., 1966, 362 F.2d 466, 470. Here, the AL Judge believed O'Malley, and his reasons for doing so are quite sensible. L'Eggs relies heavily on Hetherington's testimony that his conversation with O'Malley was on November 23, and on O'Malley's affirmative answer to a cross-examiner's favorite question, "is it possible that?" the conversation occurred on the 23rd. Overlooked, however, is the fact that thereafter O'Malley reiterated her conviction that the conversation was on the 16th, just two days after Morgan's lunchtime remarks, and stated her reasons, which are persuasive. In addition, she is partly corroborated by Hetherington himself, and by other witnesses whom the AL Judge found to be credible as to these matters.

Hetherington's statement to O'Malley on November 16, that his supervisor had told him to find out who had been talking about the union and to get rid of her, was "an outright confession of unlawful discrimination. It eliminated any question concerning the intrinsic merits as to . . . the . . . dischargee (Morgan), . . . or other causes suggested as the basis for the discharge." John R. Brown, J., in NLRB v. Ferguson, 5 Cir., 1958, 257 F.2d 88, 92. See also Ore-Ida Potato Products, Inc. v. NLRB, 9 Cir., 1960, 284 F.2d 542, 545. Obviously, it was of no moment to Hetherington's supervisor that Morgan was or was not a good employee. The supervisor was single-minded, wanting the girl identified and gotten rid of, whoever she was, and whatever her job performance, solely because she was a union supporter.

The AL Judge spent a lot of time hearing, sorting out, and analyzing a mass of evidence as to how good or bad an employee Morgan was. In the briefs, much of this evidence is rehashed again. We find it unnecessary to resolve the parties' disagreements about the issue. There is little doubt that Morgan was a poor employee, and could have been fired for that reason. On the other hand, there is also evidence indicating that she was not so bad as L'Eggs would have us believe. Otherwise, why was L'Eggs spending time and money giving her further training in an effort to improve her performance? But we conclude, in the light of the instruction that Hetherington had from his supervisor, that the issue is a false one in this particular case. The Board's decision and order, as they relate to the discharge of Morgan, are supported by substantial evidence on the record considered as a whole.

C. The Discharge of Wade (Smith).

The signature of Jackie Wade, later, by marriage, Jackie Smith, was at the top of the signatures of RSRs in the Union's letter of January 19, 1976. L'Eggs received the letter on January 21. Wade was fired on January 26. The short time between L'Eggs' receipt of the letter and Wade's discharge is the strongest bit of evidence supporting the Board's conclusion that she was fired because of her union activity. The company's strenuous opposition to any RSR union provides some further support for the same conclusion. But in Wade's case we are not persuaded that substantial evidence, on the record considered as a whole, supports the Board's conclusion that she was fired because of her support of the Union. L'Eggs' evidence overcomes the general counsel's prima facie case.

As in the case of Morgan, there is considerable evidence that Wade was a poor RSR, to the degree that L'Eggs had ample cause to discharge her. Again there is also evidence that she was not as poor an employee as L'Eggs now claims that she was. But there is more than one respect in which the evidence relating to Wade is sharply different from that relating to Morgan. There is no confession by any supervisor that the motivation was antiunion bias. There is documentary evidence, not materially contradicted by other evidence, that L'Eggs had decided to fire Wade before it had any knowledge of her union activity, that it had decided to do the firing on January 22, 1976, and that it postponed it only because it received the Union's January 19 letter on January 21. At that point, L'Eggs' management at once realized that her discharge could immediately be claimed to be an unfair labor practice. Therefore, a decision was made to postpone the discharge, to have Sue Smith, her Area Manager, do an inspection of various stops on Wade's route, and if the conditions there had not improved, discharge her. The inspection was done; it showed that conditions were worse, not better, and Wade was fired.

Wade had been an RSR since 1973, and until mid 1975 her performance had been satisfactory. In July, 1975, she was denied a leave of absence because of her poor performance. Sue Smith became her Area Manager (supervisor) in mid 1975, and assigned Wade a September 6 deadline for cleaning her boutiques. Smith was considering firing Wade if her performance did not improve. Thereafter, Wade received an "unsatisfactory" written evaluation from Smith, who next put her on a 30 day probation. By December, Wade's performance was such that Smith thought she should be replaced. All of this is supported by contemporaneous documentation, well before there was any hint of unionization. So Smith put an ad in a local paper, on December 14, 1975, for an RSR to handle the West (San Fernando) Valley area. This was Wade's territory. The AL Judge misread this advertisement as for the "Central Valley," which would include much more than Wade's territory, and dismissed it from consideration on that ground. This simply will not do.

Smith discussed Wade's termination with her supervisor, Hardy. They agreed that Wade would be terminated after the holiday season. This is from Thanksgiving until after the New Year, and is L'Eggs' busiest season. The workload for RSRs is heaviest at that time, and some RSRs quit. When that happens, L'Eggs hires replacements. But during that period it has never fired an RSR, because, during that time, a poor RSR is better than none, and better than a replacement, who would have to be trained, and it has hired very few, all replacements for quits. Disregarding this uncontradicted evidence, and relying on evidence that L'Eggs did hire replacements for RSRs who quit, the AL Judge elected to disbelieve the testimony that Wade's termination was to be postponed until after the holiday season. This, too, will not do.

On December 18, Smith conducted a routine supervision of Wade, and found her performance unsatisfactory. However, she gave her a "satisfactory" rating, the lowest passing one, because she didn't want Wade to go during the holiday season. She feared that Wade would quit if given a lower rating, because of her attitude. This, too, is contemporaneously documented. This, too, was disregarded by the AL Judge, and this, too, will not do. There is further documentation of Wade's poor performance, by Warehouse Manager Batty, on December 22.

Wade's performance was subject to annual review in January, the month in which she was employed. Smith worked on this during the week of January 12. On Friday, January 16, she told Hardy that the result was unsatisfactory. Smith was to be away on Monday and Tuesday, January 19 and 20. Wednesday the 21st was balance day. So it was agreed that the discharge was to be January 22, a Thursday. The AL Judge concluded that it was "not beyond the realm of possibility" that all of this was fabrication. Yet the decision is corroborated by the notes made contemporaneously by Hardy. "Not beyond the realm of possibility" is not a standard at all and has no meaning as a basis for evaluating conflicting evidence. The AL Judge's reasons for disregarding these handwritten memos are unsatisfactory.

He also disregards, for reasons we cannot accept, Price's notes of January 21 of a phone call received from Schwaegler which says, among other things, "Jackie (Wade) Smith is scheduled to be fired tomorrow poor performance Documentation? Yes Hardy said wait Hold off 'till I get back ." We can see no basis in the record for the AL Judge's doing so. He also downplays the December 14 advertisement, because L'Eggs did not promptly follow up after the holiday season, yet there is a memo by Smith, dated January 20, stating "Mailed out applications to those who answered the December ad in the Valley." This, too, the AL Judge disregards.

We conclude that substantial evidence, on the record as a whole, compels the conclusion that "the moving cause behind the discharge" "the dominant cause" was Wade's poor performance, not her support of the Union. The portion of the Board's order holding that her discharge was an unfair labor practice, and requiring that she be offered reinstatement and back pay must be set aside.

III. The Other Unfair Labor Practices.

The Board held that L'Eggs had committed unfair labor practices by interrogating employees concerning their union sympathies and those of fellow employees, by creating the impression of surveillance of their union activities, by threatening them with discharge, more onerous working conditions, and loss of benefits, by soliciting employees to revoke their union authorization cards and withdraw their support from the union, and by soliciting, encouraging and assisting employees to engage on L'Eggs' behalf in surveillance of the union activities of other employees, all in violation of § 8(a)(3) and (1) of the Act. We hold that the AL Judge's findings as to these practices, adopted by the Board, are supported by substantial evidence on the record considered as a whole.

As we have mentioned, L'Eggs' reaction to the Union's January 19 letter was immediate. The Western Regional Manager, Schwaegler, received the letter on January 21. He phoned Price, Director of Field Personnel, at the Winston-Salem, North Carolina headquarters, on that day. Plans of those concerned to go to a Company wide meeting in Puerto Rico were thereupon cancelled, and the next day four of the top brass in L'Eggs' headquarters, Engle, Senior Vice President, Sales and Distribution and International Operations, Price, Radcliffe, Vice President of Employee Relations, and Caldwell, Vice President of Sales and Distribution, flew to Buena Park.

They and Schwaegler conferred separately with Hardy, District Manager for Southern California, and separately with Hardy's four Area Managers, Manning, Smith, Johnson and Hetherington. Each manager was shown the Union's January 19 letter. Hardy was asked for his views about every RSR in the district and whether she would support the Union. As to each RSR who had signed the letter, he was asked why she had done so. Similar questions were put to each Area Manager about the RSRs under that manager's supervision. There was a second meeting between the Winston-Salem officials, Schwaegler, Hardy and the four area managers on Friday, January 24. Vice President Radcliffe told each Area Manager to meet individually with each of his or her RSRs and tell them about a planned nation-wide wage increase and about L'Eggs' knowledge of and opposition to the attempt of the Union to organize the RSRs.

The area managers carried out these instructions within the next few days. In their sessions with particular RSRs, each of which was different, certain types of questions were asked, such as, had the RSR been approached by the Union, if so, who had approached her, had she signed a union card, what had union representatives told her, who were other RSRs who supported the Union, was she for or against the Union, if she was for it, why hadn't she come to her supervisor instead of the Union. Many RSRs were told that if the Union got in, they would "probably" or "possibly" or "most likely" be paid on an hourly basis, have to punch a time clock, no longer be able to take their vans home, and not be supplied with uniforms. One RSR was told there would no longer be merit increases, and that the Union would not allow her to take time off to go to her doctor, despite her blood problems. A similar statement about time off was made to another RSR. To some who had signed the letter or admitted signing a card, the suggestion was made that they could withdraw from the Union and revoke their signatures. Some did revoke, one or two with active assistance from the supervisor.

Although it is not an unfair labor practice for an employer to inform employees that they have a right to revoke their union support, it is an unfair labor practice actively to solicit revocations in an otherwise coercive atmosphere. See NLRB v. Sky Wolf Sales, 9 Cir., 1972, 470 F.2d 827, 829. It is also an unfair labor practice for an employer to directly aid employees in revoking their union authorization. See NLRB v. Deutsch Company Metal Compartments Div., 9 Cir., 1971, 445 F.2d 902, 906. See also NLRB v. Triumph Curing Ctr., 9 Cir., 1978, 571 F.2d 462, 470.

Two RSRs who held strongly antiunion views put on an antiunion telephone campaign. They got RSRs' phone numbers from Price, the Winston-Salem officer who had remained in Buena Park during the antiunion campaign, and from Area Manager Johnson. Price and Johnson gave one of them time off to campaign. After each call, the substance of the conversation was relayed to Price. When the campaign was over, each submitted a bill for the cost of her phone calls, which L'Eggs paid. The two RSRs asked questions and made statements in a less inhibited manner than the Area Managers did. They persuaded at least 6 RSRs to revoke their union cards.

The record shows, and Senior Vice President Engle emphasized this in his February 5 speech to all RSRs, that the freedom of RSRs to take their vans home with them and set their own hours of work, doing the job on their own time, is of great importance to them. If they had to punch a time clock and bring their vans to Buena Park and leave them there every day, some would even have to quit. No doubt this is why the hourly pay, time clock, check in the vans theme runs so strongly through the company's campaign. Engle himself emphasized it indeed, threatened it in answer to questions after he made his speech to all RSRs.

Hetherington's statement to O'Malley that his supervisor had told him to find the girl who had been talking about the union and get rid of her is a clear threat of discharge, and so an unfair labor practice. NLRB v. Magnusen, 9 Cir., 1975, 523 F.2d 643, 645. Having every area manager interview every RSR about the union and the employee's attitude toward it, their participation in it, and who else was participating is in itself a threatening and coercive performance. Many of the questions asked and statements made added to the coercive atmosphere. NLRB v. Miller Redwood Co., 9 Cir., 1969, 407 F.2d 1366, 1368. See also NLRB v. Super Toys, Inc., 9 Cir., 1972, 458 F.2d 180, 182-183.

The repeated statements by the Area Managers regarding punching time clocks, being paid on an hourly basis, and not being able to take vans home were threats to deprive the RSRs of benefits, and coercive. It is no defense that such words as "possibly" or "might" or "probably" were used. The consequences referred to were within the control of L'Eggs. NLRB v. Gissel Packing Co., 1969, 395 U.S. 575, 618-619, 89 S. Ct. 1918, 1942, 23 L. Ed. 2d 547.

In short, we sustain all of the Board's findings and conclusions as to unfair labor practices other than discharges, save one. We cannot agree that it was an unfair labor practice for the area managers to tell the RSRs that L'Eggs would use "every lawful means possible to avoid unionization." This, however, is of little importance. There were plenty of other unfair labor practices.

IV. The Order to Bargain.

The Board ordered L'Eggs to bargain with the Union, although there had been no election. We conclude that, in this case, that portion of the Board's order should be set aside and remanded to the Board for further consideration.

A. The standard.

The Supreme Court, like the Board, recognizes that "secret elections are generally the most satisfactory indeed the preferred method of ascertaining whether a union has majority support." NLRB v. Gissel Packing Co., supra, 395 U.S. at 602, 89 S. Ct. at 1934. But an authorization-card majority may suffice where an employer has engaged in "conduct disruptive of the election process." Id. There is no point in an election if an employer's unfair labor practices have made the result a foregone conclusion. An employer will not be allowed to gain the benefit of its unfair practices and thus to thwart its workers' desire to bargain collectively.

In Gissel, the Court established three categories of unfair labor practices, in relation to bargaining orders: (1) those which are "outrageous" and "pervasive," the effects of which cannot be remedied by less extreme measures, where bargaining orders can be issued without prerequisite (id. at 613-614, 89 S. Ct. at 1939-1940); (2) "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes," where bargaining orders may be issued if the union at one time had a valid card majority (id. at 614-615, 89 S. Ct. at 1940); and (3) cases of "minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order" (id. at 615, 89 S. Ct. at 1940).

The Board does not directly assert that this case falls within the first category. And we do not think that it can fairly be said to fall within the third category. The AL Judge and the Board obviously thought that the case falls within the second category, witness the attention given to the union's pre-unfair labor practice card majority. The question is, were L'Eggs' unfair labor practices such as to "undermine majority strength and impede the election processes?"

B. Did the union have majority support ?

It is necessary to consider this question, because if the union did not "at one point (have) a (valid card) majority," 395 U.S. at 614, 89 S.Ct. at 1940, no bargaining order should issue. The Supreme Court's second category conditions a bargaining order on such a valid majority.

1. The standard.

Gissel Packing Co., supra, provides the standard. "(E)mployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent by words calculated to direct the signer to disregard and forget the language above his signature." (395 U.S. at 606, 89 S. Ct. at 1936.)

In considering the application of this standard, the Court also said:

We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of § 8(a)(1). We therefore reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry. (Id. at 608, 89 S. Ct. at 1937, footnote omitted)

The Court also quoted, with approval, from Levi Strauss & Co., 1968, 172 N.L.R.B. No. 57, 68 L.R.R.M. (BNA) 1338, 1341 and n. 7, as follows:

Thus the fact that employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresentation. A different situation is presented, of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they will use such cards only for an election . . . . (emphasis in original)

It is not the use or nonuse of certain key or "magic" words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election. (id. at 608, fn. 27, 89 S. Ct. at 1937)

We have applied these principles. See, e. g., NLRB v. South Bay Daily Breeze, 9 Cir., 1969, 415 F.2d 360, 365-367.

2. The questioned cards.

There were 39 RSRs, not counting Jackie Wade. Thus, 20 is a majority, and the union had 22 cards, again, not counting Wade's card. The cards all stated, unequivocally:

Desiring to enjoy the rights and benefits of

collective bargaining, I, the undersigned,

employee of_____________________________________

company name