Chet Monez Ford

CHET MONEZ FORD Chet Monez Ford and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 190, Local Lodge No. 1492; and Teamsters Union Local No. 78, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,' Case 20-CA-13824 March 23, 1979 DECISION AND ORDER BY CHAIRMAN FANNING( AND) MEMBERS JENKINS AND MURPHY On November 7. 1978, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed an answering brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act. as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent's withdrawal of recognition from, and refusal to bargain with, the Unions did not violate Section 8(a)(5) and (1) of the Act. We disagree with this con- clusion for the reasons specified below. On September 24, 1976. the Unions won a secret- ballot election and were certified on October 4, 1976, as the joint collective-bargaining representative for a unit consisting of mechanics and related classifica- tions.2 On the day preceding the election, Respondent President Chester Monez held a meeting of all unit employees at which he stated that they would lose their jobs if the Unions were voted in. Following the election, Monez declared sometime in October that if the "union comes in ... I'll fire every mechanic in here." In the latter part of November, Respondent's newly appointed service manager, Robert Radcliffe, told assembled unit employees that there would never be a union in the shop and that Respondent would "make it with you or without you."3 Early in Decem- 'Herein called the Unions, 2 The tally of ballots showed that of 15 eligible voters. 12 ballots were cast of which II were for the Unions and I was challenged. 'Upon assuming his position as ser. ice manager. Radcliffe was informed by Respondent Controller Valente that there were union negotiations going on at that time, that there would probably be a strike. and that "no matter what was going to happen. that there was no intention whatsoeser for ('het Monez Ford to ever, eer go Union eser." ber, Respondent's parts manager, Ken Adams, asked James Searcy, a new employee who had been hired after the election, if he had been approached by the Unions and whether "he was involved in the union deal." The parties held bargaining sessions on October 15, 25, and 28, November 15, and December 8, 1976, but failed to reach an agreement.4 The Unions called an economic strike which commenced on January 5, 1977, and was terminated on January 21 by the Unions' telegram to Respondent containing an un- conditional offer to return to work on behalf of the seven or eight striking unit employees. On that date, Respondent refused to reinstate three of the employ- ees-Ray Schiller, Claude Byers, and Searcy-on the ground that they had been replaced during the strike.5 Ruby Fisher, the wife of Ron Fisher, who had been an observer for the Unions at the election and was a participant in the strike,6 was told on January 19 by Robert Reimer, Respondent's business manager. that she would not be permitted to return to work upon the imminent completion of her maternity leave. Rei- mer handed her a union leaflet and expressed disbe- lief when she asserted that she personally was op- posed to unions. On January 20, 1977, the Unions filed unfair labor practice charges, which were amended on March 8 and April 18, and a complaint was issued on April 29 in Case 20-CA-12381 alleging Respondent violations of Section 8(a)(1)and (3) of the Act. Thereafter, a hearing was held before Administrative Law Judge Gerald A. Wacknov who issued a Decision that was adopted by the Board on January 25, 1978, in the absence of exceptions thereto. The Decision found that Respondent engaged in the following misconduct in violation of Section 8(a)(1) of the Act: Respondent President Monez, in his preelection talk, made unlawful threats of loss of employment in the event the Unions won the election. Despite the virtually unanimous vote for the Unions, in the fol- lowing month Monez unlawfully threatened to dis- charge every mechanic if the Unions "came in." Simi- larly, Service Manager Radcliffe's unlawful remarks in November to the employees that there would never be a union in the shop could reasonably be inter- preted by the employees as an attempt to cause em- 'One final bargaining session ',as held in February 1977 with the same result. 5Howeer, Bers sas recalled on January 24; Schiller was recalled on February I when, in response to Respondent's question as to his opinion of the Unions, he replied that he did not think much of them. 6 Valente advised the service manager, 2 days after the election, that the employees had chosen the Unions as their collective-bargaining representa- tive. Valente stated that one employee n particular, Ron Fisher. .as a union instigator and said, "If you get rid of this man. that the union situation will very likely disappear." 241 NLRB No. 49 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees to abandon their support for the Unions. Re- spondent unlawfully interrogated Searcy about his involvement with the Unions. Respondent's remarks to Ruby Fisher, which linked her with a union leaflet and rejected her assertion that she disagreed with her husband's prounion views, were unlawful as they were designed to convey the message that employees who supported the strike could not continue to be employees of Respondent. The Decision also found that Respondent engaged in the following violations of Section 8(a)(3) of the Act: As the record showed that economic strikers Byers, Schiller, and Searcy were not permanently replaced, they were entitled to immediate reinstatement upon the unconditional application of January 21, 1977, to return to work. Therefore, Respondent's delay in re- instating Byers and Schiller and its failure to reinstate Searcy constituted unlawful conduct. Ruby Fisher was unlawfully denied reinstatement because of (I) her husband's participation in the strike and (2) Respondent's apparent belief that she was supportive of his prounion sentiments. On January 31, 1978, about 6 days after the Board adopted the foregoing Decision, the Union wrote to Paul Shanley, Respondent's attorney in that earlier proceeding, proposing that negotiations be renewed on February 13, 14, and 15. On February 10, Respondent posted the remedial notice prescribed in the foregoing Decision which contained the customary requirement that it remain posted for 60 consecutive days from that date. Upon learning from Shanley that Respondent had selected another attorney, Allen Teagle, on March 6 the Unions proposed to the latter that they meet on March 20, 21, and 22 for the purpose of entering into negotiations. On March 17 Monez found a statement on his of- fice chair bearing the purported signatures of 10 unit employees preceded by the caption, "We the follow- ing employees do not want a union shop .... " Monez informed Teagle about the statement, and the latter promptly wrote the Unions a letter denying the bar- gaining request because of Respondent's "good-faith doubt" that the Unions represented an uncoerced majority of its unit employees "at this time."7 The Unions responded on April 6 when they reiter- ated their bargaining request and suggested that a ne- gotiation meeting take place April 17 to 21. Teagle, on April 17, replied in part as follows: ... In view of the absence of any contract, the loss by your union of the strike, the failure of your union to engage in collective bargaining for ' Only four of Respondent's prestrike unit employees were on the payroll as of the last payroll period preceding Teagle's letter. such a long period of time, the total inactivity and quiescence of your union for such a long period of time following the end of the strike, the passing of the Certification year, the tremendous turnover in personnel at the Employer's pace of business, and further independent objective evi- dence received by the Employer, [it] . . . doubts in good faith that [the Unions represent] an un- coerced majority of its employees. Accordingly, this Employer is filing a petition for election with the NLRB .... Under these circumstances, your request for recognition and bargaining is inap- propriate and must be denied at this time.8 On May 5, the Unions filed a charge, and on June 26 the Regional Director issued a complaint alleging that since January 21, 1978, and thereafter Respon- dent unlawfully withdrew recognition from the Unions and refused to bargain therewith. As indicated above, Administrative Law Judge Boyce, on November 7, 1978, issued his Decision in the instant proceeding wherein he reasoned as follows in concluding that Respondent did not violate Section 8(a)(5) and (1) of the Act: The legality of an employer's withdrawal of recog- nition from a certified union is governed by long-es- tablished rules which were restated by the Board in Guerdon Industries, Inc.. '9 Under these rules, as set out in the Board's deci- sion in Celanese Corporation of America,'0 a certi- fied union, upon the expiration of the first year following its certification, enjoys a rebuttable presumption that its majority representative sta- tus continues. The presumption may be rebutted, however, by evidence establishing that the union no longer enjoys majority representative status. Also, even without showing loss of majority, an employer may refuse to bargain if he relies on a reasonably based doubt as to the continued ma- jority status of the union. As to a reasonably based doubt, two prerequisites for sustaining that defense are that the asserted doubt must be based on objective considerations and such doubt must be raised in a context free of unfair labor practices. As to the first prerequisite, Administrative Law Judge Boyce held that despite the absence of evidence regarding the origins of the March 17 statement and the authenticity of and manner of obtaining the sig- natures thereon, said statement provided support for "a reasonably based doubt" as to the Unions' major- 'The petition. which was filed on April 18. was dismissed on June 27 because of the pendency of the instant unfair labor practice proceeding. 9218 NLRB 658, 659 (1975). 1°95 NLRB 664 (1951). 350 CHET MONEZ FORD ity status. As to the second prerequisite, he held that the unfair labor practices found in Case 20-CA- 12381 did not bar Respondent from relying on the March 17 statement because they occurred well over a year before Respondent's withdrawal of recogni- tion; the remedial notice had by that date been posted for more than half of the required 60-day pe- riod, and the 8(a)(3) violations remained significantly unremedied only with respect to backpay. As Administrative Law Judge Boyce stated, the principles enunciated in Celanese Corporation, supra, and subsequent cases govern the situation herein. However, he erred in his application of these princi- ples in finding that by the time of Respondent's with- drawal of recognition from the Unions, Respondent's violations of Section 8(a)(1) and (3) of the Act no longer had an adverse effect on the employees and therefore did not bar it from raising the issue of the Union's majority status. As the Board recently held with respect to the sig- nificance of the passage of time since the occurrence of a respondent's serious and flagrant misconduct, the impact thereof remains after its unfair labor practices take place." Thus, the Board long ago determined that the posting of a remedial notice for a 60-day period-subsequent to its Decision containing the un- fair labor practice findings-is necessary as a means of dispelling and dissipating the unwholesome effects of a respondent's unfair labor practices.' As indicated above, Respondent not only made preelection threats that employees would lose their jobs if the Unions won the election but continued to oppose the Unions even after their victory and certifi- cation by threats of discharge and interrogation. As already noted, the intensity and extent of Respon- dent's resolve to undermine the Union were revealed by the declaration of its controller in November 1976 that "no matter what was going to happen i.e., a strike], that [Respondent had no intention] to ever, ever go union...." Respondent's unyielding opposi- tion to the Unions was further demonstrated in Janu- ary 1977 by additional unlawful conduct which also went to the heart of the Act, namely, the discharge of employees Ruby Fisher and Searcy and the delay in reinstating employees Schiller and Byers. In sum, it is clear from the foregoing that Respon- dent's flagrant unfair labor practices were aimed at causing disaffection from the Unions and were de- signed to erode employee support therefor. Conse- quently, the 60-day posting requirement is not to be taken lightly or whittled down as the purpose of the notice is to provide sufficient time to dispel the harm- ful effects of Respondent's discriminatory conduct. " Richard Tischler, et al., d/b/a Devon Gables Nursing Home, 237 NLRB 775 (1978). 12 Metropolitlan Life Insurance Company, 91 NLRB 473, 477 (1950). Accordingly, we conclude that the unfair labor prac- tices found in Case 20-CA-12381 precluded Respon- dent from questioning the Unions' majority status. We therefore hold that Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from and refusing to bargain with the Unions. THE REMEDY Having found that Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain col- lectively with the Unions as the exclusive representa- tive of all employees in the appropriate unit and, if an understanding is reached, embody such understand- ing in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their bar- gaining agent for the period provided by law, we shall construe the initial period of certification as begin- ning on the date Respondent commences to bargain with the Unions as the joint collective-bargaining rep- resentative of the employees in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent, Chet Monez Ford, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions herein are the exclusive joint collec- tive-bargaining representative of Respondent's em- ployees in the following appropriate unit: All full-time and regular part-time mechanics, body and fender men, painters, detail men, lubri- cation men, lot attendants, parts men and service writers employed by Chet Monez Ford at its lo- cation in Fairfield, California; excluding office clerical employees, salesmen, guards and super- visors as defined in the Act. 3. By withdrawing recognition from and refusing to bargain with the Unions since about January 31, 1978, Respondent has engaged in an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Chet Monez Ford, Fairfield, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 190, Local No. 1492, and Teamsters Union Local No. 78, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclu- sive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time mechanics, body and fender men, painters, detail men, lubri- cation men, lot attendants, parts men and service writers employed by Chet Monez Ford at its lo- cation in Fairfield, California; excluding office clerical employees, salesmen, guards and super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collec- tively with the above-named Unions as the exclusive representative of all employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its shop in Fairfield, California, copies of the attached notice marked "Appendix."'3 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 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 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 13 In the event that this Order is enforced by ajudgment 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with International Association of Ma- chinists and Aerospace Workers, AFL-CIO, District Lodge No. 190, Local Lodge No. 1492, and Teamsters Union Local No. 78, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees at our facility in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL, upon request, bargain with the above-named Unions as the exclusive represent- ative of all employees in the bargaining unit de- scribed below, 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. The bargaining unit is: All full-time and regular part-time mechanics, body and fender men, painters, detail men, lu- brication men, lot attendants, parts men and service writers employed by Chet Monez Ford at its location in Fairfield, California; exclud- ing office clerical employees, salesmen, guards and supervisors as defined in the Act. CHET MONEZ FORD DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This matter came for hearing before me in San Francisco, Cali- fornia, on September 19, 1978. The charge was filed on May 5, 1978, by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No.190, Local Lodge No. 1492, and Teamsters Union Lo- cal No. 78, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (Unions). The complaint issued on June 26, and alleges that Chet Monez Ford (Respondent) has violated Section 8(a)(5) and (I) of the National Labor Relations Act (Act). The parties were permitted during the hearing to exam- ine and cross-examine witnesses, to introduce relevant 352 documentary evidence, and to argue orally. Post-trial briefs were filed for the General Counsel and for Respondent. 1. IURISDICTION Respondent is a California corporation engaged in Fair- field in the sale of new and used automobiles. It realizes an annual gross income exceeding $500,000, and annually pur- chases goods from outside California for delivery in Califor- nia of a value exceeding $50,000. Respondent is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Both Unions are labor organizations within Section 2(5) of the Act. II1. ISSUE The complaint alleges that since January 31, 1978, Re- spondent has refused to recognize and bargain with the Unions in circumstances violating Section 8(a)(5) and (1) of the Act. The answer denies any wrongdoing. IV. THE ALLEGED UNFAIR LABOR PRACTICE A. Facts On October 4, 1976, following an NLRB-conducted elec- tion won by the Unions II to 0, they were certified as the joint collective-bargaining representative of Respondent's employees in this unit: All full-time and regular mechanics, body and fender men, painters, detail men, lubrication men, lot atten- dants, parts men and service writers employed by the Employer at its location in Fairfield, California; ex- cluding office clerical employees, salesmen, guards and supervisors as defined in the Act.' The unit consisted of about 15 employees at relevant times. Five bargaining sessions ensued in October, November, and December 1976, after which the Unions called a strike on January 4, 1977. The strike lasted until January 21, 1977, at which time the Unions applied for reinstatement on behalf of the strikers. Another bargaining session was held on an unascertained date in February 1977. There has been no subsequent bargaining nor has a contract been reached. On November 28, 1977, following a hearing held the pre- ceding August 2, Administrative Law Judge Gerald A. Wacknov issued a decision concluding that Respondent had violated Section 8(a)(l) of the Act by certain verbal acts of its officials, all in 1976, and that it had violated Section 8(a)(3) and (1) by failing to reinstate three strikers at strike's end and a fourth employee-the nonunit wife of a striker-in February 1977 when her maternity leave I Case 20-RC-13673. Unit appropriateness is not in dispute. CHET MONEZ FORD ended. No exceptions were taken, and the Board issued its pro forma affirmance by Order dated January 25, 1978.2 The remedial portion of that Decision required Respon- dent, among other things, to post a prescribed notice to employees for 60 days; to make whole the four emploxees unlawfully denied reinstatement: and to offer reinstatement to two of the four, the other two having been previously reinstated. Respondent first posted the notice to employees on February 10, 1978. To the time of trial, it had not com- plied with the make-whole aspect of The Remedy, being at odds with the NLRB Regional Office over amounts owing. There is no evidence, nor does the General Counsel con- tend, that the reinstatement feature of The Remedy was not complied with in due course. By letter dated January 31, 1978, to Paul Shanley, Re- spondent's attorney in the proceeding just described and a spokesman in at least some of the bargaining sessions, the Unions' Manuel Francis proposed that negotiations be re- sumed on February 13, 14, or 15. Learning from Shanley that Shanley no longer represented Respondent, Francis sent a similar letter, dated March 6, to Allen Teagle, Re- spondent's new attorney, proposing that they meet on March 20, 21, or 22. These were the Unions' first efforts to meet since February 1977. About 9 a.m. on March 17, according to the unrefuted testimony of Respondent's president, Chester Monez, he found an envelope in his office chair containing a document bearing the purported signatures of 10 unit employees. Above the signatures was this caption: "We the following employees do not want a union shop at Green Valley Ford."' Monez denied having prior knowledge of this docu- ment, and there is no evidence otherwise of its origins, the authenticity of the signatures, or the manner in which the signatures were obtained. Monez reported this development to Teagle that same morning, and Teagle sent a letter to Francis dated March 17 acknowledging the March 6 bargaining request and stat- ing in part: [Your request must be denied at this time because my client doubts in good faith that your organization rep- resents an uncoerced majority of its employees in an appropriate bargaining unit at this time. Francis responded by letter dated April 6, repeating the earlier request for bargaining, this time suggesting April 17 to 21. Teagle's answering letter dated April 17 stated in part: As you know, there is no NLRB decision or order re- quiring Chet Monez Ford, d/b/a Green Valley Ford to recognize or bargain with your union at this time, and in view of the absence of any contract, the loss by your union of the strike, the failure of your union to engage in collective bargaining for such a long period of time, the total inactivity and quiescence of your union for such a long period of time following the end of the strike, the passing of the Certification year, the tremendous turnover in personnel at the Employer's place of business, and further independent objective 2Case 20-CA 12381. The underlying charge was filed by the Unions in January 1977. and amended in March and Aprl. 3 Respondent operates under the style of Green Valle, Ford. 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence received by the Employer, Chet Monez Ford, d/b/a Green Valley Ford doubts in good faith that your organization, separately, jointly, or in any way truly represents an uncoerced majority of its employees in an appropriate unit or units. Accordingly, this Em- ployer is filing a petition for election with the NLRB. Under these circumstances, your request for recogni- tion and bargaining is inappropriate and must be de- nied at this time. On April 18, Respondent petitioned the NLRB for an election among the unit employees.' That petition was dis- missed on June 27 because of the pendency of this proceed- ing. Four of Respondent's prestrike unit employees were on the payroll in unit classifications as of the last payroll pe- riod before Teagle's March 17 letter denying recognition. B. Conclusion The legality of an employer's withdrawal of recognition from a union is governed by these rules: [A] certified union, upon the expiration of the first year following its certification, enjoys a rebuttable presump- tion that its majority representative status continues. . . The presumption may be rebutted, however, by evidence establishing that the union no longer enjoys majority representative status. Also, even without such showing of loss of majority, an employer may refuse to bargain if he relies on a reasonably based doubt as to the continued majority status of the union. As to a reasonably based doubt, two prerequisites for sustain- ing that defense are that the asserted doubt must be based on objective considerations and such doubt must be raised in a context free from unfair labor practices.5 Respondent's chief contention is that the document found in Monez's chair on March 17, ostensibly signed by about two-thirds of the unit employees and declaring that they "do not want a union shop," satisfied the requirement of "a reasonably based doubt" grounded upon "objective consideration," and that the subsequent withdrawal of rec- ognition therefore was lawful.6 The General Counsel con- tends, on the other hand, that since Respondent had not satisfied the backpay and 60-day posting requirements of Judge Wacknov's remedial Order as of March 17, its doubt was not "raised in a context free from unfair labor prac- tices" as required by the above formulation. The General Counsel makes the added argument that the document on which Respondent assertedly relied does not suffice for that purpose in any event. 'Case 20-RM-2219. 5 uerdon Industries, Inc.. Armor Mobile Homes Division, 218 NLRB 658, 659 (1975). See also Eastern Washington Distributing Company, Inc., 216 NLRB 1149, 1152-53 (1975); King Radio Corporation, Inc., 208 NLRB 578, 582 (1974); Ingress-Plastene, Inc., 177 NLRB 481 (1969); C & C Plywood Corporation and Veneers, Inc., 163 NLRB 1022, 1023 (1967); Celanese Corpo- ration of America, 95 NLRB 664, 672-673 (1951). 6 Respondent also contends that a good-faith doubt was justified by the "absence of any meaningful negotiations" for over a year, by the Unions' failure to try to communicate with Respondent for nearly a year, and by employee turnover. In light of the result herein, and the underlying analysis, there is no need to deal with these contentions. As noted earlier, there is no evidence concerning the ori- gins of this document, the authenticity of its signatures, or the manner in which the signatures were obtained. So, while the timing and other known circumstances surround- ing it arouse a healthy skepticism, that is not enough from which to infer that it emanated from improper management influences. It is concluded, therefore, that aside from the unremedied unfair labor practices and regardless of signa- ture authenticity, the document legitimized Respondent's conduct.' The dispositive question, therefore is whether the unrem- edied unfair labor practices precluded Respondent's reli- ance on the document. The test in this regard is whether, in the "totality of all the circumstances," the unremedied mis- conduct was "of such a character as to either affect the Union's status, cause employee disaffection, or improperly affect the bargaining relationship itself."' It is concluded that it was not. Respondent's 8(a)(1) misconduct occurred well over a year before March 17, and the remedial notice by then had been posted for more than one-half of the required 60 days. Whatever the impact of these violations when perpetrated, it hardly can be said that they carried the necessary anti- union thrust as of March 17. Respondent's 8(a)(3) misconduct presents a harder ques- tion. The unlawful failure to reinstate strikers, and even the nonunit wife of a striker, almost necessarily would affect a union's status and cause employee disaffection for a consid- erable time after perpetration. But again, more than a year had elapsed since these violations, the reinstatement aspect of the remedy evidently had been satisfied, and the posting requirement was in the process of being met. In short, and without belittling the full 60-day posting standard, the 8(a)(3) violations remained significantly unremedied in only one respect-agreement on and tender of backpay. And in that regard, the notice to employees expressed Respondent's assurance that it would make the discriminatees whole, beyond which there has been no sug- gestion that the nonagreement on backpay stemmed from unseemly recalcitrance on Respondent's part. In these cir- cumstances, it would strain reason beyond the breaking point to impute to the nonpayment of backpay the neces- sary adverse consequences. 9 7 Guerdon Industries, Inc., supra at 660. The General Counsel's argument is rejected that the document's caption was too ambiguous to support a good- faith doubt. There was no contract at the time, let alone one with a union shop clause: and there had been no bargaining for over a year, making it totally unlikely that the document's purpose was merely to inform Respon- dent of the employees' feelings about the inclusion of a union shop clause in any contract that might result from bargaining. I Guerdon Industries, Inc., supra at 661. See also Colonial Manor Convales- cent & Nursing Center, a Division of The La Grange Land Corporation, 188 NLRB 861 (1971). ' Colonial Manor Convalescent & Nursing Center, supra. See also Taft Broadcasting, 201 NLRB 801 (1973); Midwestern Instruments, Inc., 133 NLRB 1132 (1961): and the Board's discussion of Midwestern Instruments in C & C Plywood Corporation, supra at 163 NLRB 1024, fn. 12. C & C Plywood Corporation and King Radio Corporation, supra, on which the General Coun- sel seems to rely most heavily, both involved unremedied violations of Sec. 8(aX5), and thus are fundamentally distinguishable from the present case. 354 CHET MONEZ FORD 355 CONCLtSION OF LAW and the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: Respondent did not violate the Act as alleged. [Recommended Order for dismissal omitted from publi- Upon the foregoing findings of fact, conclusion of law, cation.]