Warrensburg Board & Paper Corp.

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warrensburg Board & Paper Corporation and United Paper- makers and Paperworkers, AFL-CIO. Case No. 3-CA-1919. June 28, 1963 DECISION AND ORDER On March 27, 1963, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent and the Charging Party filed exceptions to the Intermediate Report and supporting briefs.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclu- sions, and recommendations to the extent consistent herewith. We find, in agreement with the Trial Examiner, that the Respond- ent violated Section 8(a) (5) and (1) of the Act by the refusal of Lawrence Thompson, its representative, to sign the contract tendered on or about April 20, 1962. We do not agree, however, that Respond- ent unlawfully suggested or solicited withdrawals from the Union. The record shows the following : The parties agreed that, effective April 1, 1962, there would be a 30-day escape period during which employees could withdraw from the Union. At a membership meeting of the employees on March 31, 1962, the signficance of the escape period was explained to the em- ployees by Lawrence Thompson, the Respondent's vice president, and Patrick Harte, the Union's regional director. During the escape period, ,a notice pertaining to the availability of withdrawal slips was posted on the employees' bulletin board. Although there is no af- firmative evidence connecting the Respondent with the actual post- ing of the notice, the record shows that the Respondent was aware that it was posted. Record testimony discloses that the notice advised the employees that withdrawal slips could be obtained from Charles Harris, Edward Frye, and Edward Miner if so desired. Harris is identified in the record as being the Respondent's plant superintend- i The Respondent's request for oral argument is hereby denied as the record , exceptions, and briefs adequately present the issues and positions of the parties. 2In view of the Trial Examiner's finding that there was no promise by the Union to walk away if a majority of the employees withdrew during the escape period, we do not feel that it is necessary to consider what legal effect any such promise might have if made. 143 NLRB No. 47. WARRENSBURG BOARD & PAPER CORPORATION 399 ent. There is no affirmative evidence that Respondent actually asked any employee to withdraw from the Union . In fact, all witnesses testifying as to the submission of withdrawal slips stated that they did so voluntarily. The Trial Examiner found that the Respondent, by the notice and through Harris, was involved in unlawful suggestion and solicitation of withdrawal from the Union , and in attempts to undermine the Union. We do not agree. Significantly, the parties had agreed to a 30-day escape period during which the employees could withdraw from the Union, and this fact was made clear to the employees at the March 31 membership meeting. The notice itself contained no threat of reprisal or promise of benefit in the event the employees decided not to withdraw from the Union. On the contrary, the notice advised the employees that withdrawal slips were available to them if so desired. Under all the circumstances , we find that the Respond- ent did not in such respect interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act.' We shall, therefore, dismiss that part of the complaint which alleges such violation of Section 8 (a) (1) of the Act 4 THE REMEDY To remedy the Section 8(a) (5) violation, the Trial Examiner rec- ommended that the Board order the Respondent to execute the 2-year contract submitted by the Union on or about April 20, 1962, with changes in the effective dates of the contract and the provision therein pertaining to the 30-day escape period . An order at this time provid- ing for a change in the effective date of the 2-year contract would un- duly extend the contract beyond the term originally agreed upon. As the Respondent has put into effect the provisions of the contract, we believe that no purpose would be served by such an order. We shall therefore order the Respondent, upon the Union's request, to execute the contract submitted to it by the Union on or about April 20, 1962, with an effective terminal date of March 1, 1964. If no such request is made, we shall order the Respondent , upon request, to bargain col- lectively with the Union as the exclusive representative of the em- ployees in the appropriate unit, and, if an understanding is reached, to embody such understanding in a signed contract . As the record clearly shows that the effective date of March 1, 1962, for the 30-day escape period as set forth in the submitted contract was erroneous, we shall provide that said date shall be corrected to April 1, 1962. 3 Perkins Machine Company, 141 NLRB 697. 4 The fact that the withdrawals were not unlawfully solicited cannot serve as a defense to Respondent's refusal to sign the contract with the Union in April 1962 for the Union was certified as recently as October 1961. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Warrensburg Board & Paper Corporation, Warrensburg, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Papermakers and Paperworkers, AFL-CIO, as the exclusive representative of all em- ployees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment, by refusing to sign an agreement embodying conditions agreed upon. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request by United Papermakers and Paperworkers, AFL-CIO, execute the contract heretofore submitted, as set forth in the section herein entitled "The Remedy," and if no such request to execute is made, bargain upon request with the Union as the exclusive representative of the employees in the appropriate unit. (b) Post at its plant in Warrensburg, New York, copies of the at- tached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Third Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT is r, URTHER ORDERED that the complaint, insofar as it alleges violations of Section 8 (a) (1) of the Act, be, and it hereby is, dismissed. 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WARRENSBURG BOARD & PAPER CORPORATION 401 WE WILL NOT refuse to bargain collectively with United Paper- makers and Paperworkers, AFL-CIO, as the exclusive repre- sentative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment, by refusing to sign an agreement embodying conditions agreed upon. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guar- anteed in Section 7 of the Act. WE WILL, upon request, execute the contract heretofore sub- mitted to us by United Papermakers and Paperworkers, AFL- CIO, and if no request to execute is made we will, upon request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the following unit : All production and maintenance employees of the Company employed at the Warrensburg, New York, plant, exclusive of all office clerical employees, guards, professional employees, and supervisors as defined in the Act. WARRENSBURG BOARD & PAPER CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buf- falo, New York, 14202, Telephone No. TL 6-1782, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER With marked credibility issues, this case lends itself strikingly to the method of making a decision and then arranging the findings to support it-like the rifleman who paints his bull's-eye around the bullet hole. But, aside from manner and demeanor of witnesses , the reasonableness of the testimony and the internal con- sistency developed point the way to the facts and, to the findings and conclusions to be made. The complaint herein (issued September 11, 1962; charges filed July 3, August 3, and September 7, 1962 ) alleges that the Company has violated Section 8(a)(1) of the National Labor Relations Act, as amended , 73 Stat. 519, by suggesting to its employees that they withdraw from the Union and circulating and soliciting with- drawal requests from said employees, informing its employees by a posted notice that the union issue was dead , and negotiating in bad faith , refusing to sign an agreement embodying agreed-upon conditions, and seeking to undermine the Union and to destroy its majority ; and Section 8(a) (5) of the Act by said alleged acts and by refusing to recognize or bargain with the Union . The answer, as amended , denies the status of one alleged supervisor and further denies that the Company committed any unfair labor practices as alleged. (In its brief the Company attacks the certi- fication of the Union although the answer admits that such certification followed designation by a majority of employees in the unit.) 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The hearing was opened by Trial Examiner Thomas F. Maher at Glens Falls, New York, on November 7, 1962, and thereafter continued before Trial Examiner Lloyd Buchanan from December 19 through 21, 1962, inclusive. At the close of the hearing, counsel were heard in oral argument. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel, the Union and the Company, the time to do so having been several times extended. With his brief, the General Counsel filed a motion to correct the transcript. In the absence of objection thereto, the changes requested are presumably in order; said motion, dated February 13, 1962, is hereby granted. The motion has been marked "Trial Ex- aminer's Exhibit No. 1" and included in the file. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a New York corporation with principal office, plant, and place of business in Warrensburg, New York, is engaged in the manufacture, sale, and distribution of paperboard and related products; that during the 12 months preceding issuance of the complaint it manufactured, sold, and distributed at said plant products valued at more than $50,000 to other enter- prises located in the State of New York, each of which annually produces and ships goods valued at more than $50,000 directly out of the State of New York; and that it is engaged in commerce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The refusal to sign an agreement The issue here is whether an employer has violated the Act by a refusal to sign an agreement after it has bargained in apparent good faith (except that even after certification is questioned the Union's majority) and has orally agreed with the terms of the written agreement as submitted to it, subject to a single provision to be voted upon, that provision having been thereafter determined. The issue is complicated by the attempt to show that two other items were unresolved and by a claim that the Union agreed to remove itself entirely if, despite its certification, a majority of the employees withdrew during the escape period. A corollary issue, itself alleged as a violation, is the employer's role in employees' withdrawal from the Union. It was admitted and I find that, after a Board-conducted election, the Board on or about October 4, 1961, certified the Union as the exclusive collective-bargaining representative of the employees in the following unit which is an appropriate unit within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Company employed at its Warrensburg, New York, plant, exclusive of all office clerical employees and all guards, professional employees, and supervisors as defined in the Act. After a preliminary meeting on December 15, 1961, at which the Union sub- mitted a proposed contract, the parties met four times, discussing various pro- visions on January 15, February 12, and March 8 and 16. At the January meeting Gillis, one of the Union's representatives, asked the Company's vice president, Thompson, whether be had gone over the copy of the Union's proposed contract which she had given him on December 15. Thereafter the Company prepared and submitted to the Union a document entitled "Management's Position" and headed "Labor Negotiations 1/26/62," and another document entitled "Notes for 2/12 Negotiations." The first of these was the Company's summary of the discussion at the January meeting and indicated the Company's position on the items to be dis- cussed; the second was also a summary and indicated the Company's position. It is not claimed that the Company reneged on any agreement reached or improperly limited an earlier position except for the alleged refusal to sign the proposed agree- ment later submitted, infra. But for the few items which we shall now consider, the meetings may be summarized by saying that the parties, working from the Union's proposal and the Company's submitted documents or counterproposals, agreed on some clauses as written and apparently on others as orally modified, the entire agreement to be reduced to writing. While as we shall see there are certain factual differences, it stands uncontradicted that three issues remained unresolved at the February meeting: grievance procedure, WARRENSBURG BOARD & PAPER CORPORATION 403 wages, and union security. Nor is there any question concerning these issues and their resolution beyond the Company's claim that its agreement with respect to them was a quid pro quo for an agreement by the Union to withdraw from the scene entirely, this latter being the salient factual issue to be determined. Leaving for the moment the question of the reason or consideration for the Company's agreement on these latter items, the parties on March 8 agreed on an arbitration clause with a maximum possible award of $1,000 in any one case. I do not credit Thompson's testimony that $1,000 would be the maximum total of awards under arbitration during the life of the contract. Aside from the patent unrealism of such an overall limitation, my impression as I observed the witnesses was that the Company took this position at the hearing only to indicate that the agreement finally submitted to it did not in fact embody what had been agreed upon. We shall note further Thompson's endorsement of the submission, which included an arbitration limit in any one case; he did not then or thereafter prior to the hearing raise the question of overall total. Similarly, agreement was reached on wages at the March 8 meeting, with con- comitant shift differential terms and a 2-year term. Only the single remaining issue of union security was discussed at the meeting on March 16. With the Union insist- ing on a union shop and the Company on a maintenance-of-membership clause, Thompson having expressed his opinion that the Union did not represent a majority of the employees,' it was agreed to hold a secret ballot vote among the employees: the choice was to be maintenance of membership or a union shop, in either case with a 30-day escape period. As described, a union-shop provision with a 30-day escape clause meant that all employees who did not withdraw from membership during the escape period must remain members, and that all new employees must become members of the Union as under the usual union-shop provision. Reserving discussion and decision on this issue, we should here note the Com- pany's claim that at the February meeting Gillis had said that, if the Union lacked a majority at the end of the escape period, it would no longer be interested and would "walk away." Gillis denied that she had said this. At a meeting on March 31, Harte, another union representative, and Thompson addressed the employees concerning the issue to be presented, and the employees, by a single vote margin, then voted in favor of the modified union-shop provision. (It was by a similar one-vote margin in the Board-conducted election that they had voted for the Union as their bargaining representative.) Harte and Thompson, who had withdrawn from the room before the vote, returned and heard Gillis read the results of the tally, agreed that they "ha[d] an agreement," and shook hands The meeting was then adjourned. As we shall see, Thompson was uncertain and wholly unreliable concerning sub- sequent events. I credit Gillis' testimony that early in April, Thompson, who had agreed to prepare the contract, told her that he had been too busy and suggested that she do it; that about a week later she gave Thompson a copy of the proposed con- tract, asking him to check it for errors or omissions; and that on or about April 20 he told her that there were no errors or omissions, adding, "You did a pretty good job on it." 2 Asked when they could meet to sign the contract, Thompson now for the first time declared that he would not. Citing the Union's alleged promise to withdraw or walk away if it lacked a majority, he claimed reliance on a series of withdrawal slips which a majority of the employees had now signed. (We shall consider, infra, the evidence concerning the withdrawal slips and their significance.) Earlier, as we have noted, and throughout the statutory period, Thompson had ques- tioned the validity of the election and maintained that the Union did not represent a majority of the employees. According to Thompson, Gillis did not call on him and ask that he sign the agree- ment. He testified variously that he did not know whether she gave him the con- tract, that she did give it to him (he had some "reservations" in that connection), and finally that she may have given it to him; he would not now deny it. Further, he did not actually recall how he got the proposed agreement: it might have come in by mail, or someone else may have given it to him. He testified also that its existence came to his attention on July 20, when he referred to it in an affidavit; not having recalled it up to that time, he then asked his attorney and his secretary for it, but with no success; after another visit by a Board representative on August 16, 1 While the Company was not obliged to agree on the form of union security requested by the Union, its stated reason so soon after certification that the Union did not represent the employees was in derogation of the bargaining process. 2 Cf. N L R B v. 'U.S. Sonics Corp., 312 F. 2d 610 (C.A. 1). 717-672-64-vol. 143-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he searched further and finally found it . (He had earlier testified that he could not recall whether he found it before or after August 16.) Whenever it was that he did receive the proposed contract, he testified that he knew he did not look at it in April or May. (This would meet Gillis' testimony that he had referred to it as a pretty good job. But Thompson's patent uncertainty is of little weight and does not balance Gillis' account.) Sometime in May (he was certain that it was after the April 30-day escape period) Gillis, without reference to a specific contract, asked him whether he was going to sign a contract, and because he had been told that a majority of the employees had signed withdrawal slips he replied that he was no longer under obligation to sign and would not. (Wholly aside from the circum- stances under which employees had signed such slips, Thompson here again and ad- mittedly failed to recognize his obligation.) In marked contrast to his inability to recall, uncertainty, and self-contradictions, he was positive that it was to a rather than the contract that Harte referred a few weeks to a month after Gillis' inquiry. I do not credit this testimony by Thompson. I rely on Gillis' testimony that she gave him a copy of the contract and thereafter, still in April, spoke with him about it; and Harte's that he later also asked Thompson about signing the contract. How and just when he received the copy of the proposed agreement remained a mystery to Thompson. Quite as mysterious was the deposit on his desk of a paper apparently signed by 15 employees requesting that the Board election be set aside or that the Company maintain an open shop. He found this paper after he re- turned to work sometime following an injury. He testified that it was the basis for, and then strengthened, his belief that most of the employees were not interested in being members of the Union. In the face of Thompson's stated reason for refusing to sign the proffered contract, the defense that agreement had been reached in principle only and subject to final drafting is not available to the Company. Considering that defense, nevertheless, it would be fatuous to maintain that the proposed contract as submitted to Thomp- son embodied in haec verba the provisions earlier agreed upon. But this does not mean that it was substantially different or in form or substance unacceptable to the Company. Thompson declared to Gillis that it was in fact acceptable, and this invalidates any argument that there was no express agreement, which would preclude an order to sign. We thus need not resolve the question whether or to what extent specific language had been adopted in connection with the various pro- visions. There was agreement on the form and language of the submitted contract when Thompson spoke as he did on or about April 20. In an affidavit executed on July 20, Thompson declared that the parties on March 16 had "finalized the agreement" and arranged for the vote which was taken on March 31. Conceivably, this might mean that the substance of the agree- ment rather than its language had been "finalized," and that Thompson or his at- torney might thereafter properly ask that certain provisions be reworded. But as we have seen this was not cited as the reason for the refusal to sign, aside from the evidence that the contract as drafted was acceptable. Our concern is not with what might have been said or done, but with what was in fact stated as the reason for refusing to sign and what had previously been said. Supporting the finding that the parties had early agreed on the various provisions and that of union security, and that on the vote on this issue the parties had concluded agreement on all issues, are the conversations between Thompson and Gillis con- cerning drafting of the agreement. I find that the claim of unresolved issues has been injected as an afterthought and defense contrary to the facts as credibly de- scribed. I find similarly with respect to the Company's present claim of possible language differences as a bar to an order that it execute a contract. The fact is that any such bar was removed with Thompson's approbation of the contract submitted to him. The question is not whether obstacles could have been placed in the path of agreement, but whether the parties in fact did agree, as I find that they did. If the escape period was to begin after the meeting of March 31 and was to run through the month of April, the clause in the contract for continued membership by all employees who remained as members 30 days after March 1 was clearly er- roneous, and Gillis so admitted. With the escape period admittedly the month of April, the 30-day period should have been described as running from April 1, as all agreed. But again, this was not the reason for the refusal to sign; and such patent error need not be repeated in a contract to be executed. Nor were Thompson's stated reasons for refusing to sign the proffered agreement valid. Neither in law nor in fact could he rely on the withdrawal slips, which, as we shall see, were solicited by the Company, or on an alleged promise by the Union to walk away. If a representative of the Union , certified as collective -bargaining WARRENSBURG BOARD & PAPER CORPORATION 405 representative, made such a reckless statement , the Union was nevertheless entitled to recognition, and the Company was obliged to bargain even if the employees early and voluntarily sought to abandon the Union as Thompson claimed they had.3 If in the interest of industrial peace bargaining rights are to be continued for a stated period, it follows that a proposal to terminate such rights after certification is contrary to public policy and may not be consideration for alleged concessions in a contract. (Of course, we do not evaluate the extent of any concession concerning the arbitration clause as limited or the shift differential attached to the Company's wage proposal; the third issue which remained open as late as March-union security-was disposed of by the agreement for an employee vote, the Company allegedly or admittedly gambling on its anticipation of a rejection by the employees.) But in fact no such proposal was made. While it may be noted that it is unlikely that, after so recent formal certification, union representatives would thus promise to walk away from a plant which they had organized (according to company witnesses, Gillis first said this, Harte did later, and Mendez, another international representative , nodded his head in assent ), there is more substantial basis for a finding on this issue. As we shall also see, the Com- pany's role in the withdrawal process interfered with the employees' free exercise of their rights; and the Company is estopped from relying on results toward which its interference tended. Nor should we overlook the fact that, if the union representatives had agreed that they would walk away from the plant and that there would be no contract at all if a majority of the employees turned in withdrawal slips during the 30-day escape period, the alternatives before the parties would be a union-security provision of sorts and no contract at all-not a union shop and a maintenance-of-membership arrange- ment. Yet Thompson definitely declared that after the alleged promise to walk away, the parties agreed on the vote for one or the other form of union security, each with an escape clause. The vote as agreed upon and taken would be almost unim- portant were there any idea that there would be no contract Were Thompson less keen, one might wonder whether he was confused. Nor would I believe that the Company's general counsel was similarly confused, whatever his inexperience in these matters He is generally experienced, and would recognize the contradiction between a maintenance-of-membership agreement as the alternative to a union shop, and no agreement at all4 He testified that, on Gillis' suggestion that the Union walk away, the Company gambled that there would be no contract Curiously, the alleged promise by the Union to walk away is claimed to have occur-red at the meeting of February 12, which ended after the Company charged the Union with being concerned with its own interests, not those of the employees, Further proof of the inconsistency and unreliability of the claim that there would be no contract is to be found in the Company's statements to the employees near the end of March as posted on its bulletin board A notice entitled "Our Last Offer" and dated March 23 included the following: As we told you previous to the last session, only one major issue remained- Whether there was to be a modified Union Shop or maintenance of membership. In keeping with our established position, we contended that, in our opinion, the majority of our people did not want a Modified Union Shop. The Union felt that our position was incorrect. Since neither party was willing to concede the point, the Union agreed to offer both proposals at their meeting for ratification. The issue is to be determined by secret ballot. The two alternatives are here clearly set forth without any suggestion of a third, i.e , that there would be no agreement at all or that the Union would withdraw. Were the union shop voted down, there would be a contract with a maintenance-of- membership clause. Although this notice was posted more than 11/z months after the alleged promise to walk away, there was no mention of that possibility as a result of employee action during the escape period. 3 Ray Brooks v N L R.B., 348 II S. 96. 4If Hall had "no thought" of being himself involved in an election campaign until a month after his July 24 conversation with Harte, the latter's testimony that hall spoke of being busy in that connection and of having lost his wife is not thereby contradicted Hall's recollection of the conversation was admittedly not clear. He testified, "I could be wrong, " as the context and a subsequent statement show ; the transcript is hereby cor- rected in that respect. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company followed this notice with another, dated March 27, which included the following: MODIFIED SHOP The modified shop means that after a thirty day escape period, any employee signifying a desire to remain in the Union will be bound to remain a member for two years. It also means that any new employees hired during the next two years will be forced to join the Union as a "right to work." Any employee pres- ently on the payroll will have a choice of joining or not joining for a thirty day period. MAINTENANCE OF MEMBERSHIP If you vote for maintenance of membership, you signify that you reserve the right for every man to be free to choose whether or not he desires Union membership. Under this category, new employees would have a free choice as to Union membership. The thirty day Escape Clause still applies. Words have indeed lost their meaning if this is to be construed that a vote for main- tenance of membership signifies that there shall be no contract at all; or if, in the face of these explanations by the Company, it be held that there was an imminent likelihood that there would be no contract because of employee action during the escape period. In this notice the Company also stated its belief: ". . . a majority of our people feel that a Union is not in their best interest at this time." Even so, the only possibilities mentioned were the two forms of union security, not the withdrawal of the Union. Most favorably for the Company we could but conclude that its representatives at some later point possibly misinterpreted the alternative admittedly declared, rather than that a meaningless provision for a modified union shop should be in effect while there would be no contract and no union at the plant. Whatever the confusion of some of the Company's witnesses, the evidence, includ- ing Thompson's testimony and company notices as well as testimony by the Union's witnesses, shows clearly that the employees were to and did choose between one or another form of union-security provisions in the contract to be signed, elimination of the Union not being contemplated; and not, as a company witness testified, that a vote against the Union would mean that "the Union is dead." In fact, it was further testified on behalf of the Company that Gillis told Thompson at the March 31 meeting before the vote on the union-security provision that the members had voted to accept the contract; and that Thompson and Harte thereafter spoke on the choice between union shop and maintenance of membership. Nor was any doubt in this respect indicated by the uncontradicted testimony that after the vote for the latter provision Thompson and Harte shook hands and agreed that they had a contract. Further supporting the credibility finding that there was no agreement by the Union to walk away and that the Company did not rely on it either in making concessions or in refusing to sign is the answer, verified on September 24, 1962, which alleges that the Company "was at all times ready, willing and anxious to sign a written agreement in accordance with the oral agreement reached through collective bar- gaining." If the oral agreement was to walk away, what written agreement was the Company ready to sign? The Company's refusal to sign the proposed 2-year contract submitted to it about the middle of April was a breach of its obligation to bargain, in violation of Section 8(a)(5) and (1) of theAct.5 B. The solicitation of withdrawal from the Union It was claimed by the Company that the Union did not provide withdrawal slips, and allegedly that provision thereof by the Company was therefore necessary or at least in order. The employees having voted for a union-shop contract with an escape clause, a notice now appeared on the bulletin board (despite an early denial, it is clear that the Company maintained and used the board, on which union notices were also posted), remaining there for more than a week, to the effect that withdrawal slips could be obtained from Harris, the plant superintendent, Miner, a rank-and-file employee, or Frye, whose status is in issue; or that these three had withdrawal slips which could be obtained for signature. If, as Harris testified, the notice said that `H. J Heinz Company v. NLRB , 311 U S. 514, 526. WARRENSBURG BOARD & PAPER CORPORATION 407 he had withdrawal slips, an employee's impression, as testified to by one of them,, Potter, that he "could receive them from Mr. Harris," was a reasonable deduction. This is so even if, as Harris appeared to suggest in the face of contrary testimony, he= did not touch the slips. They were on his desk and he replied when asked for some,- "Okay, there are three slips; take them." Whether or not Harris knew of the withdrawal slips before he saw the postedi notice and then, finding them on his desk, left them there, the Company at least adopted the notice and this method of assisting and encouraging employees to with- draw. Harris testified that Thompson told him that it was "all right to hand one out to anybody that requested one." Harris told one employee that duplicates of slips given to the president of the local union were to be handed in to the office, and Thompson offered to provide the necessary forms. If the idea was merely to ac- commodate employees by making the slips readily available in a place which was readily accessible to many employees, there was plenty of room on the table in Harris' office, if not on another desk or elsewhere in the room. There was no such necessity or absence of alternatives as to warrant inclusion of Harris in the withdrawal procedure. There is no question but that Miner was a rank-and-file employee. As for Frye, while the answer denies that he is a supervisor, it does not deny the allegation that he has been the Company's agent. It will be assumed that the Com- pany intended to deny his status as alleged since the issue was contested at the hear- ing, and such denial will be recognized. The evidence generally does not show that Frye had supervisory authority or that he, more than other rank-and-file employees, effectively recommended men for hire; but there is no contradiction of Frye's testi- mony that Thompson at one time suggested to Harris that they let Frye "hire his own men." Frye's desk was near the timeclock and therefore most accessible to the employees. If he was a rank-and-file employee, there was no need certainly to include Supervisor Harris in the withdrawal notice and procedure; if Frye was a supervisor, and he was apparently so regarded in view of Thompson's indicated reliance on him, his in- clusion was again violative. Aside from the question of responsibility for posting the notice and permitting it to remain, the Company utilized the procedure which it indicated, and received and retained custody of some 25 signed withdrawal slips. Despite the persistent attempts to show that more than one supervisor was engaged in unlawful solicitation of withdrawal slips, we can rest on the proof that the Com- pany, by the notice and through Harris, was thus involved in unlawful suggestion and solicitation of withdrawal from the Union, and attempts to undermine it 6 We need not concern ourselves with the further fact that Thompson's confidential secretary kept the signed slips in the company safe. Nor need we, since it would not lead to any different finding or additional remedy, emphasize the allegation that the Company violated the Act by informing its employees that the union issue was dead, this being based on a notice which, although not presented at the hearing, was in substance described. The illegality of such notice depends upon the illegality of the refusal to recognize the Union and to bargain with it. As for the Company's claim that, and even if, the Union's failure to instruct em- ployees concerning procedure for action under an escape clause warranted a well- meaning employer's sponsorship or assistance with respect to withdrawal, it stands uncontradicted that Harte did on March 31 instruct the employees on a simple pro- cedure. While Frye's testimony that Harte said that employees could get withdrawal slips differs from the suggestion that they use any slip of paper, it does not contradict Harte's positive description of what he told the employees. This latter was con- firmed by two employee witnesses called by the Company. If the reasonableness and legality of the steps taken by the Company depend on the circumstances, there was here neither need nor warrant for the Company's acts in this respect. Testimony was received concerning a cutback in employment during the escape period and the need therefor. That cutback is not shown to have been related to the withdrawal slips except that it fell within the escape period. The argument may indeed be made that a cutback under such circumstances tends to encourage with- drawals from a union; contrariwise it can be claimed that it tends to encourage continued membership in hope of union support against layoff or discharge. We need not speculate and choose between these alternatives. e Reserve Supply Corporation of L.1, Inc., 140 NLRB 330. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aside from the Union's right to represent the employees for a reasonable period, the violations prevent an inquiry at this time into the free desires of the employees in this respect. There may well be another election after the effect of the violations has been dissipated. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company, set forth in section II, above, occurring in connec- tion with the operations described in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist there- from, and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by refusing to sign an agreement embodying conditions agreed upon, by suggesting and soliciting withdrawal from the Union, and by attempting to undermine it, refused to recognize or bargain collectively with the Union, and thereby interfered with, restrained, and coerced its employees. I shall, therefore recommend that the Company cease and desist therefrom and from any like or related conduct, and also, upon request, bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment, and further that it execute the contract heretofore submitted to it and agreed to, with appropriate changes such as the effective date and a corrected escape period.? Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Papermakers and Paperworkers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees of the Company employed at its Warrensburg, New York, plant, exclusive of all office clerical employees and all guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union was on October 4, 1961, and at all times since has been the ex- clusive bargaining representative within the meaning of Section 9(a) of the Act, of all employees in the aforesaid unit for the purpose of collective bargaining. 4. By refusing, on or about April 20, 1962, to sign an agreement embodying con- ditions agreed upon, by suggesting and soliciting withdrawal from the Union, and by attempting to undermine the Union, thereby refusing to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, Warrensburg Board & Paper Corporation has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By such acts, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 7WATF,, Inc 132 NLRB 1338, enfd. 310 F 2d 700 (CA. 6) Cf. Sheet Metal Workers Union, Local No. 65, AFL-CIO (Inland Steel Products Company), 120 NLRB 1678, 1679. That the contract must embody what has been agreed upon by the parties has more re- cently been indicated in the Board's analysis in Henry I Siegel Co., Inc., 140 NLRB 1292, where it refused to direct affirmative action and found no violation because "the under- standing of the parties and their agreement" were embodied in the executed contract.